HORN & GABIN

[2011] FamCA 657

FAMILY COURT OF AUSTRALIA

HORN & GABIN [2011] FamCA 657

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournment of trial – Father litigant in person – Father had surgery a short time before the trial – Father still on painkillers – No notice to mother and independent children’s lawyer until day before trial due to commence – Relevant matters considered in particular whether prejudice to father if adjournment refused would outweigh prejudice to mother and independent children’s lawyer if adjournment granted – Court able to offer new dates in a short period by settlement of other matters – Adjournment granted

Burns & Burns (unreported) (1999), FamCA 1992, 19 November 1999
Cheung & The Queen  (1999) 73 ALJR 1093
Line & Line Appeal (unreported) EA 96 of 1996, 13 December 1996

APPLICANT: Mr Horn

RESPONDENT: Ms Gabin

FILE NUMBER: BRC 12027 of 2007

DATE DELIVERED: 21 June 2011

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: O’Reilly J

HEARING DATE: 21 June 2011

REPRESENTATION

THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Ms McDiarmid

SOLICITORS FOR THE RESPONDENT: Pippa Coleman & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Ashcroft

THE INDEPENDENT CHILDREN’S LAWYER Ms Dooley
Dooley Solicitors

Orders

IT IS ORDERED

1. The trial of this matter is adjourned to 10am on 10, 11 and 12 August 2011 (three days) as fixed dates. 

2. The file (P)BRF2485/2004 travel with this file.

NOTATION

1. The adjournment was granted on the father’s oral application because of recent orthopaedic surgery and the effect on his capacity to conduct the trial as a litigant in person.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 12027 of 2007

Mr Horn

Applicant

And

Ms Gabin

Respondent

REASONS FOR JUDGMENT

1. This matter concerns suitable parenting orders in the best interests of S born in January 2004 now 7½ years.  This is the second set of parenting proceedings concerning her and were commenced on 18 October 2007.  The matter was transferred from the Federal Magistrates Court to this Court by Spelleken FM on 21 December 2009 after the matter had proceeded to trial before her but, for reasons which she then gave, made only interim orders rather than a final order. 

2. The matter came on before me as a Day 1 matter in the Less Adversarial Trial system on 12 October 2010.  On that date I made a minor variation to the existing interim parenting orders and the matter since then has progressed through trial directions and a comprehensive family report by Ms B, family consultant, who previously had prepared a Children and Parents Issues Assessment. Prior to all of that there had been no fewer than five family reports by Mr M, social worker in the history of the two sets of proceedings.

3. The matter was set down for continuation of trial today for three days, those dates being allocated by Registrar Kane on 9 March 2011 and subsequently confirmed to the parties. 

4. On 1 June 2011 Registrar Kane conducted a compliance check and reported that the father failed to attend the compliance check and had not filed affidavit material as directed. 

5. Today the father has appeared and seeks an adjournment of the continuation of the trial.  Notice was given of this to the Court only yesterday by the independent children’s lawyer, and, as I understand the matter, also to the mother’s solicitors yesterday.   

6. The father in support of his application for adjournment relies on ex 1 which is a bundle of medical documents showing that on 10 June 2011, that is 11 days ago, he underwent a right knee arthroscopy and medial meniscectomy, and a right shoulder arthroscopic subacromial decompression, performed by Dr C, orthopaedic surgeon at Hospital 1 at the Gold Coast.  He was discharged on 11 June 2011 with instructions for post operative care and exercise. Also in ex 1 is a Workers’ Compensation certificate in generic form stating that the father will be incapacitated for work between 1 June 2011 and 29 June 2011 inclusive. 

7. In addition, the father has produced boxes of painkillers presently prescribed for him, including:

   ·    Digesic, prescribed on 11 June 2011 by Dr C, 325 milligrams, 2 each 4 hours for pain; 

   ·    Tramadol Hydrochloride, prescribed on 11 June 2011 by Dr I, 100 milligrams; 

   ·    Tramadol Hexal, prescribed on 13 June 2011 by Dr W, 150 milligrams.

8. Although there is no medical evidence as to the side effects on him of these drugs, the father has said that the drugs have negative effect on his capacity meaningfully to run the trial and participate in it. 

9. The circumstances of the case are that it is beyond doubt, by reference to ex 1, that the father has had the surgery described. It is also beyond doubt, by reference to the prescription labels on the drugs, that he has been prescribed the drugs. It is also beyond doubt that the father is certified as incapacitated for work until 29 June 2011. 

10. There is no medical evidence that, in combination, these matters have effect that he cannot conduct the trial.

11. There is the circumstance however that the independent children’s lawyer has Counsel and the mother has solicitors and Counsel and if I were to require the father to go on he would be against two barristers, as it were, while he is a litigant in person.  There is also the circumstance that the historical and current experts reports are against the case the father wishes to put, which is that there be an equal time week about arrangement concerning S in circumstances where presently, pursuant to existing interim orders, she is having unsupervised time with him once per fortnight, daytime only.

12. The independent children’s lawyer, through Mr Ashcroft, does not oppose the father’s application for an adjournment on the basis that the material raises concerns as to the father’s self representation.  Ms McDiarmid of Counsel for the mother however has opposed the adjournment on several grounds which have been articulated by her and which I need not spell out in detail but may be summarised as follows:

    ·There has been very late notice of the application for the adjournment, despite opportunity for the father to give earlier notice.

    ·There is an absence of medical evidence as to why the father cannot participate in the trial, as claimed, as opposed to the generic Worker’s Compensation certificate. 

    ·There is no evidence as to the effect of the prescribed drugs on the father, against the background that the father has a history of chaotic behaviour in the two sets of proceedings, as described in the experts reports, and occurrences of failure to attend not only past court events but also family consultant appointments and even opportunities to see S. 

13. In essence, Ms McDiarmid described this as a “long battle” and one which the mother is very anxious to have finally determined. 

14. From the Bar table, but without demur, it was stated that the mother has borrowed from her family for legal representation today of both solicitors and Counsel, and the mother wants the matter to come to trial as quickly as possible with as little cost as possible, and hopefully not with costs thrown away. 

15. The principles relating to applications for adjournment are well understood.  In Cheung & The Queen (1999) 73 ALJR 1093 at 1094-5 the High Court made clear that an adjournment should be granted where this is necessary to do justice between the parties, and where a refusal would seriously prejudice a party, an adjournment ordinarily should be granted. It seems to me that the relative inequality of position of the father as a litigant in person with his recent surgery and current prescriptions, even absent direct evidence of effect on him, compared with the positions of the independent children’s lawyer and the mother, both represented by Counsel, has effect that if I do not grant the adjournment, there would be serious prejudice to him, in that, whilst describing drowsiness and other side effects from the drugs, the father would be required to cross-examine the mother, the mother’s witnesses and more importantly, the experts who are against him.

16. In Burns & Burns [1999] FamCA 1992, the Full Court said at 22, that when assessing the issues appropriate to the determination of whether to grant an adjournment, the proper inquiry is four fold:

    ·Whether the adjournment is sought for a reasonable period of time;

    ·Whether there is adequate reason given for the request for adjournment;

    ·What prejudice would either party suffer as a result of the adjournment;

    ·Whether that prejudice could be met by a costs order.

17. Turning to those matters in this particular case, fortunately, by two matters settling in the week commencing 8 August 2011, if I granted the adjournment I am able to offer the parties fixed dates of 8, 9 and 10 August 2011. 

18. As to whether adequate reason is given for the request for the adjournment, I am satisfied on the basis of what I have described already that there is. 

19. As to what prejudice either party would suffer as a result of the adjournment if granted, the mother would suffer a short period of adjournment, in the scale of things of just under seven weeks.  

20. It would not be necessary to make further trial directions in my view, nor even have a further compliance check so that the prejudice to the mother would be costs thrown away this morning and the necessity for her Counsel to work up the brief again, as it were, in seven weeks time.  The same would apply to the independent children’s lawyer and Mr Ashcroft. The mother for good reason wants the matter over as quickly as possible with as little cost as possible.  However, the comparative prejudice to her, compared with prejudice to the father, which I have described, I take into account. 

21. As to whether that prejudice could be met with a costs order, if I grant the adjournment I would propose to order that the costs of and incidental to it be reserved.  However, if that were ever enlivened, it would be necessary to make a costs application in the usual way. 

22. It is the case, of course, that it is in the interests of justice ordinarily that matters allocated trial dates proceed on the dates allocated, rather than be adjourned with consequent waste of judicial time and additional delay in the disposition of other cases awaiting hearing in the court’s lists:  Line & Line Appeal EA 96 of 1996, 13 December 1996 (unreported on this point but otherwise reported at (1997) FLC 92-729).

23. Having considered all of the relevant factors, I am persuaded that prejudice to the father would outweigh prejudice to the mother if the application for adjournment were not granted.  Adequate reason has been given for the request and the matter can come to trial again within a reasonable period of time.  In so determining, I will state I am not satisfied that the father has given adequate reason for the lateness of his application as opposed to the fact of his application.  However, if ultimately there is to be any costs application against him, he will be required to be put on notice of any such ground, so that he may then have opportunity to file an affidavit as to why he sought the adjournment today instead of before the surgery.

24. Given that the father already has said that he missed the compliance check on 1 June 2001 because of pain and sleeping, it may well be that there is a similar explanation, however that must wait other evidence for another day, if ultimately costs of or relating to the adjournment are sought by the mother and/or the independent children’s lawyer.  

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Reilly delivered on 21 June 2011.

Associate: 

Date: