Janter and Janter

[2008] FamCA 463

FAMILY COURT OF AUSTRALIA

JANTER & JANTER [2008] FamCA 463

FAMILY LAW – CHILDREN – family violence
FAMILY LAW – PRACTICE AND PROCEDURE – adjournment
FAMILY LAW – COSTS

Family Law Act 1975 (Cth) s 60CC

APPLICANT: Mrs Janter

RESPONDENT: Mr Janter

FILE NUMBER: SYC 407 of 2007

DATE DELIVERED: 20 June 2008

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: The Hon. Justice Rose

HEARING DATE: 20 June 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: D Hausman

SOLICITOR FOR THE APPLICANT: K R Barnes & Co.

COUNSEL FOR THE RESPONDENT: T Messner

SOLICITOR FOR THE RESPONDENT: Doolan Wagner & Callaghan

INDEPENDENT CHILDREN'S LAWYER: Legal Aid Commission of NSW

Orders

1. That the wife’s application for adjournment of the hearing fixed to commence on Monday, 23 June 2008 is granted.

2. That Dr M be appointed as single expert for the purpose of preparing a report in these proceedings to address the issue of allegations of child sexual abuse.

3. That the proceedings be listed at 9.15am on 16 September 2008 for further directions and the allocation of new hearing dates.

4. That the father’s oral application for costs of the vacated hearing as well as costs of the adjournment application is reserved.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:  SYC407 of 2007

Mr Janter

Applicant

And

Ms Janter

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. In these proceedings application is made by the mother, pursuant to her Application in a Case filed 16 June 2008, that the continuation of the trial fixed to resume on 23 June 2008 be adjourned.

2. In support of her application, the mother has filed affidavits sworn by her solicitor and herself on 16 and 18 June 2008 respectively.

3. The basis upon which the application has been made is that her solicitors only recently received detailed instructions in relation to: allegations of family violence;  drug taking and child sexual abuse;  and the nature and extent of those instructions are such that it is contended there should be a report prepared and furnished to the parties by a child expert who has qualifications and expertise beyond that of the family consultant whose report dated 30 October 2007 (“Exhibit 2” in the proceedings).

4. The application for the adjournment is opposed by the father.

5. The independent children’s lawyer implicitly supported the application for the adjournment.

6. On 10 December 2007 when the parties were represented, I determined the issues for the continuation of the hearing which included all of the matters that are relied upon in support of the adjournment application, to which I have referred, with the exception of the allegations of child sexual abuse.  At that time the mother was represented by a different solicitor.  It may be a live issue as to why these allegations were not specified on that occasion, and if so, then that will have to await the resumption of the hearing, whether it is next week or on a later date.

7. As I indicated during the course of submissions, I would not be minded to grant the adjournment were it not for the allegations of child sexual abuse.

8. So far as the other issues are concerned, they have been dealt with in the Family Report.  It is submitted that they were not extensively dealt with in that report and that another expert would be able to do so applying his or her expertise for that purpose.

9. I have concluded that the question of the alleged inadequacies of the Family Report can be addressed during the course of cross-examination of the family consultant, and it may be that upon certain propositions and/or allegations being put to her, that she would respond in a way which would make clearer the matters which she traversed in the report.

10. Clearly the allegations of child sexual abuse are very serious.  Those allegations need to be investigated.

11. Pursuant to s60CC(2) of the Family Law Act 1975 (Cth) (‘the Act’), one of the primary considerations is the matter of family violence and protection of the child or children from being exposed to family violence. In the event of these allegations being accepted, and that is yet to be determined, the nature of them lies very much at the heart of that primary consideration which I would have to apply for the purpose of making parenting orders which are in the best interests of the child or children concerned.

12. I must, of course, balance that consideration at this stage against the disadvantages to the parties and indirectly their children of the trial being adjourned with the pressures that ongoing litigation will create for all concerned, not to mention the emotional and financial cost which would be generated.

13. However, in balancing those considerations, I have concluded that the allegations of child abuse provided in some detail in the mother’s affidavit sworn 18 June 2008 cannot be glossed over, especially in view of the detail that is provided.  Those are matters which need to be subject of expert evidence from a child psychiatrist who has qualifications and experience in this area.

14. Counsel for the parties and the independent children’s lawyer do not dispute that Dr M, psychiatrist, who is nominated by counsel for the mother as a result of enquiries that have been made, is such a suitable expert.  Dr M’s availability, I am told, for the purpose of interviews represents a situation where those matters can be embarked upon with minimal delay having regard to the professional commitments that busy professionals commonly have.

15. I was informed that interviews may take place with Dr M on 24  July 2008 and culminating with a final interview on 27 August 2008.  In addition, Dr M’s potential report would be prepared and available to the parties prior to 4 September 2008.  I was also informed that Dr M will then be overseas until 12 October 2008.

16. My current court commitments with trials in other cases are such that other than for the possibility of early August 2008, I do not have any trial time available at all until the beginning of October 2008.  Consequently, the timing of Dr M’s report, from a practical viewpoint, would not result in a longer period of an adjournment than would otherwise be the case.

17. For those reasons I have reluctantly concluded that the adjournment will be granted.

18. I was informed by counsel that there is no issue in relation to the appointment of Dr M for the purposes already stated, and that her fees would be met by the parties equally.

19. The independent children’s lawyer informed me that the appropriate amounts will need to be held by the Legal Aid Commission of New South Wales in trust pending the interviews with Dr M and completion of her report.  It was not suggested on behalf of either of the parties that those requirement could not be fulfilled.

COST APPLICATION

1. Counsel for the father makes an application for an order for costs against the mother in relation to the costs that would be thrown away as a consequence of the trial being adjourned.  It was submitted that the application for the adjournment was made very late, and the basis for it were matters which should have been known to the mother and those advising her.

2. Counsel for the mother submits that the costs be reserved so far as quantum is concerned.  It was also submitted by her that the amount of the costs representing counsel fees of $4,300 and solicitor’s fees $950, totalling $5,250 represents, in effect, indemnity costs.

3. Neither of the parties are legally aided.

4. I have not lost sight of the fact that the mother has changed legal representation of late, and that her solicitor was absent from his office for some weeks.  I am satisfied having regard to his affidavit that he has attended to matters professionally and as soon as possible having regard to his availability to take instructions and also having conference with counsel.

5. That does not overcome the submission made by counsel for the father that the issues to be the subject of investigation and report by Dr M could have been highlighted when the directions hearing took place on 10 December 2007.  On the face of it, there is much merit in that submission.

6. I have concluded that that aspect of the matter will need to be the subject of evidence before I can make a finding.  There may be a reasonable explanation as to why that issue was not raised at the appropriate time; namely, 10 December 2007.

7. It follows from the conclusions reached by me in terms of the efforts made by the mother’s solicitor to file the application for the adjournment, the background which led to that application and the view that I have expressed as to, in effect, an opportunity being given by the mother subject to cross-examination to explain why the issue of child abuse was not raised at the directions hearing, that the appropriate order in my view is that the father’s costs be reserved of both the adjournment and the application for the adjournment heard by me today.

8. I will have the matter listed before me for further directions and fixing of new trial dates at the most convenient time to all concerned, subsequent to the release of Dr M’s report, namely at 9.15am on 16 September 2008.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose.

Legal Associate: 

Date:  26 June 2008