Hartford & Ansilda (No. 2)

[2008] FamCA 601

FAMILY COURT OF AUSTRALIA

HARTFORD & ANSILDA (NO. 2) [2008] FamCA 601

FAMILY LAW  -  CHILDREN  -  Magellan  -  late application for legal aid  -  adjournment of trial
Family Law Act 1975 (Cth) Crimes (Family Violence) Act 1987
FATHER:	Mr Hartford

MOTHER: Ms Ansilda

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 10686 of 2007

DATE DELIVERED: 21 July 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 21 July 2008

REPRESENTATION

COUNSEL FOR THE FATHER: Mr I.F. Mawson SC
with Mr M. Wood

SOLICITOR FOR THE FATHER: Gillian Coote Family Law

THE MOTHER: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER	Ms. M. Vohra
INDEPENDENT CHILDREN’S LAWYER	Victoria Legal Aid

Orders

1. That the competing applications for final parenting orders in respect of the child … born … December, 2006, and the father’s application for the mother to be dealt with for contravention of orders, be adjourned for trial on 25 August, 2008.

2. That the mother pay towards the father’s costs thrown away this day the sum of $7,000, and such costs be paid within three months hereof. 

3. That the costs of counsel for the independent children’s lawyer be fixed at $1,760 and reserved. 

4. That the Court cause a sealed copy of these orders and the reasons for judgment, to be sent to :

   (a)the registrar of the Children’s Court, Melbourne;  and

   (b)the registrar of the Magistrates’ Court of Victoria at the Moorabbin Justice Centre;

   with a request that they be brought to the attention of a court before whom an application for an intervention order is made which concerns (in any capacity) the mother, father or the child. 

5. That the mother file and serve any affidavits on which she intends to rely by 18 August, 2008. 

6. That prior to the adjourned date Mr. V (who wrote the family report released to the parties herein) be permitted to read all reports prepared by Dr. E which are filed herein and all affidavits filed by or on behalf of a party since preparation of his family report. 

7. That the reasons for judgment this day be transcribed and copies made available to the parties.

8. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel including senior counsel.

AND THE COURT NOTES

1. The solicitor for the mother then on the record filed a notice of ceasing to act on 10 July, 2008.

2. The mother advised the court that on or about 17 July, 2008 she made an application for legal aid which she believes will be determined within a week. 

1. The mother advised that if legal aid is not granted she intends to approach family and friends to enable her to retain a solicitor. 

2. The court was advised that an application brought by the mother in the Children’s Court at Melbourne seeking an intervention order in respect of the child has been adjourned to 25 August, 2008 and that applications brought by a member or members of Victoria Police seeking intervention orders, respectively, in respect of the mother and father has be adjourned to the Magistrates’ Court of Victoria, sitting at the Moorabbin Justice Centre, on 22 August, 2008. 

IT IS NOTED that publication of this judgment under the pseudonym Hartford & Ansilda is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 10686 of 2007

MR HARTFORD

Father

And

MS ANSILDA

Mother

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. This matter has been in the Magellan list for some time.  Proceedings commenced on 25 September 2007 and relate to the parties’ daughter, who is not yet two.  There have been a number of interim hearings before me and the case may have been listed before Bennett J.  It has been before the Magellan registrar on a number of occasions. 

2. The father filed a contravention application a short while ago.  Those who were involved in the hearing then will remember that, rather than deal with that application and defer the trial, I consolidated it with this application and gave the case priority for trial, giving it first berth in the Magellan list which commences today. 

3. At a pre‑hearing conference on 9 July 2008 the mother was represented by Mr Woolf, her then solicitor.  His firm was the second firm to go onto the record for the mother.  He notified the registrar on 9 July that the mother's instructions had been withdrawn and she would be seeing another lawyer on 10 July.  Whether she saw that third lawyer on 10 July or not, it took a little while for him to contact this court.

4. I understand some contact was made by Mr. Pippett (that third lawyer) prior to 17 July and that the Magellan registrar gave him her direct line.  She advised that if he needed to come to the registry and search and copy the file, that could be arranged on short notice.  A letter from him was faxed to the court on 17 July, being last Thursday.  In it he advised that the mother was applying for legal aid and would attend today to seek an adjournment.  No notice of address of service has been filed by him. 

5. Mr Mawson has told me of a number of other proceedings between the parties, in other courts.  Applications pursuant to the Crimes (Family Violence) Act 1987 have been filed in the Children’s Court and the Moorabbin Magistrates’ Court. I take them into account, but they cannot be the determinant of whether proceedings in this court are adjourned or are not adjourned. If these proceedings are adjourned, this court can send copies of those orders and, indeed, copies of its reasons for judgment, to both of those courts, to ensure the judicial officers there are aware of progress in this matter.

6. The application for an adjournment is opposed by senior counsel for the father and there is much good sense in what he says.  That opposition is supported by the independent children's lawyer, who points out the importance to the child of determining the competing applications.  Pursuant to existing orders, the child spends time with her father on three days in each week;  she has frequent and regular time with him and that time is not supervised.  The court must not lose sight of the fact that what it has before it is a residence application, not an application that the child have more time with her father.  That must be at the forefront of the decision. 

7. What was not adverted to by any member of counsel is the court's obligation to ensure that procedural fairness and natural justice prevail.  It would be little use to the father to force the mother on today and have him face an appeal on the grounds of a denial of natural justice. 

8. The mother has told me she anticipates an answer from VLA within a week.  That may be an optimistic assessment.  She said that if her application is refused, she will ask family and friends for financial assistance to engage a lawyer.

9. Albeit with some reluctance, I propose to grant this adjournment.  I will hear more from the mother in a minute, and I will hear any consequent applications for costs, and determine them today.

10. The most practical solution, in my judgment, having regard to the need to get this case on, is to not adjourn it to a date later in this two week list.

11. First, the second case in the list, which I will commence this morning, is likely to run for eight to ten days.  Second, I do not share Mr Pippett's optimism that the application for legal aid will be determined within a week of filing.  I appreciate a VLA solicitor is instructing Ms Vohra, as the ICL, but I do not propose to ask any questions of her about that issue.  An ICL is not involved in the grants process and I do not want to compromise her independence. 

12. The solution, in my judgment, is to make this case the first matter in my next list, subject only to a part heard case.  It will be listed before me on 25 August, which is the first day of that Magellan sitting.  If I am part-heard in another matter, its start will be delayed but it will be reached in those sittings. 

13. The court will send a copy of its reasons for judgment and its order to the Children's Court and to the Moorabbin Magistrates’ Court.  That will alert the judicial officers in those courts to what is happening in this court.  They may well consider that further adjournments are a practical solution, but that is of course a matter for them alone.

I certify that the preceding
13 paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.

Dated the           day of            2008.

…………………………………………
Associate.