Kendrick and Becker

[2013] FCCA 2246

FEDERAL CIRCUIT COURT OF AUSTRALIA

KENDRICK & BECKER [2013] FCCA 2246

Catchwords:
FAMILY LAW – Adjournment of final hearing sought – effective use of the Court’s time and resources.

Legislation:

Family Law Act 1975, pt. II, s.60CA

Universal Declaration of Human Rights

Rice & Asplund (1979) FLC 90-725

Haset Sali v SPC Ltd [1993] HCA 47

Applicant: MS KENDRICK

Respondent: MR BECKER

File Number: PAC 1477 of 2009

Judgment of: Judge Harman

Hearing date: 29 November 2013

Date of Last Submission: 29 November 2013

Delivered at: Parramatta

Delivered on: 29 November 2013

REPRESENTATION

Solicitors for the Applicant: Bankstown Legal

Solicitors for the Respondent: Gonzalez & Co

Solicitors for the Independent Children's Lawyer: Champion Legal

ORDERS

1. Grant leave for the applicant mother to make an oral Application to vacate the scheduled trial dates of these proceedings 11, 12 and 13 December 2013

2. Dismiss that Application.

3. Pursuant to section 13C of the Family Law Act 1975 the Independent Children’s Lawyer (if appointed) and the parties and each of them shall forthwith and within seven (7) days contact the intake officer of the Legal Aid Commission Early Intervention Unit for the purpose of arranging and attending the first available and offered intake appointment for the assessment of suitability for Family Dispute Resolution and, subject to the assessment of suitability, each party (and the Independent Children’s Lawyer) shall then attend at such times, dates and places as may be advised to participate in and complete Family Dispute Resolution prior to the next Court event.

4. Both parties are to be ready to proceed with the hearing commencing 10am 11 December 2013.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 1477 of 2009

MS KENDRICK

Applicant

And

MR BECKER

Respondent

REASONS FOR JUDGMENT

1. These are proceedings involving future care arrangements with respect to a child, X, born (omitted) 2009. 

2. The parties to the proceedings are X’s parents, namely his mother, Ms Kendrick, who is the Applicant in these proceedings, and his father, Mr Becker, who is the Respondent. 

3. The parties separated on an unspecified date in 2009.  Whether that was before or after the child’s birth is not apparent from Ms Kendrick's Application.  What is apparent from the folio of the court file is that when this child was four weeks of age, on 31 March 2009, the first Application with respect to his care was filed. 

4. The present controversy between the parents is the second round of proceedings between them in X’s short life.

5. These proceedings were commenced by the above Application, filed 21 September 2012. 

6. Cumulatively, with respect to the two rounds of litigation between these parties, which would appear to have had a brief respite between the making of final orders by consent on 3 June 2011 and the filing of the further Application, 21 September 2012, the parties have consumed, including today’s appearance, 20 court events. 

7. The parties have consumed, with no real benefit, five Family Consultants’ events, including two sets of appointments for full Family Reports.

8. In the words of Quinn J of the Ontario Superior Court, “these parties have treated the court as their own private banquet table and feasted upon it.  It will not continue”.

9. The proceedings are listed for a three-day trial commencing 11 December 2013.  The matter comes into the list today at the mother’s instigation seeking to vacate those hearing dates and on the basis that she is not yet in receipt of a grant of Legal Aid for the hearing. It would seem nor is the father. The only person whose funding is secured is the Independent Children’s Lawyer. 

10. Legal representation, whilst it is a great benefit, is not a right. It is not an entitlement. Attorneys are not court appointed. Indeed, it is a simply reality in this day and age that a great many litigants proceed to hearing unrepresented.  In approximately 40 per cent of cases before the court one or both parties – and more commonly than not, both – are not legally represented. 

11. There is nothing to distinguish this case from the others described above. Indeed, if these proceedings were conducted in Victoria, it is unlikely either party would be funded for hearing and they would be expected to appear on their own behalf although perhaps receiving some assistance with respect to preparation of their material.

12. That is not in any way a criticism of Victorian Legal Aid.  Nor, by reference to the fact that funding has not yet been made available to these parties, is it a criticism of New South Wales Legal Aid. 

13. In this day and age, with the chronic underfunding of all services assisting families, commencing in the community sector and Family Relationship Centres and then flowing through Legal Aid Commissions to the Court itself, there is simply not enough to do that work which is available. That is not likely to change in the foreseeable future and certainly not between now and the allocated trial dates. 

14. These parties, as I have already indicated, have been before this Court, with one brief respite, since this child was four weeks old.  He is now shortly to turn five. 

15. The child has rights. The parents do not, beyond the rights given to them by the Universal Declaration of Human Rights and a right of due process. Legal representation is not, in civil proceedings such as these, inherently a right of due process. Parenting proceedings cannot be stayed indefinitely until parents are represented as criminal proceedings might be.

16. This child has a right to have the conflict around his arrangements concluded.  That clearly is not going to occur through the parties’ own resources and endeavours, and thus will require judicial determination.

17. The state of the evidence in the proceedings is parlous. However, the father has filed his Affidavit material, being a fairly extensive Affidavit by himself and one by his partner. 

18. Each of the parties has filed an Application or Response setting out clearly the relief that they seek, and to the extent that the father’s relief as sought and as set out in his Response might vary, that has been clearly put on the record today. 

19. The father’s Response, the most recent being filed 22 January 2013, seeks that the child lives with him and spends time with the mother.  The father has indicated today and thus leave has been granted to orally amend his Application, that what is in fact sought by him is a continuation of the existing interim arrangement, which would appear to be pursuant to orders made by consent on 26 February 2013 and which sees the child spending four nights per fortnight in the father’s care. 

20. The mother seeks that the child’s time with the father be reduced from the interim arrangement of four nights to two nights a fortnight. That is the arrangement that was ordered in June 2011 before these proceedings were commenced. 

21. Neither party has raised, with respect to the application of the other, any Rice v Asplund threshold, although clearly the parties have had fairly unremitting litigation.

22. This child’s brief life to date has thus been typified by the conflict which has been circumjacent to his existence. 

23. For many couples there is great heartache that they are unable to have children.  For many others they have children who are sadly taken away from them, either through welfare processes, death or other circumstances.  Indeed, a great many couples throughout the world experience that on a daily basis, including those in the majority world who, through no fault of their own, find their children taken through preventable illness and malnutrition. 

24. These parents have been gifted with an otherwise healthy child. Sadly, however, his childhood is otherwise marred by the inability of his parents to resolve even the smallest conflict between them.  That is something which the Court proposes to bring to conclusion. 

25. The application for adjournment is based not only on the absence of Legal Aid funding, but the difficulties that the Court would face in having inadequate evidence before it.  Indeed, regrettably, even in some circumstances, when parties are legally represented and have filed material, the Court is faced with that difficulty. 

26. In this case, certainly, the limited evidence that is filed to date is problematic. Ms Kendrick has, in fact, filed an Affidavit which just makes it to three pages, (albeit that it has not been served on the Independent Children's Lawyer, a circumstance which will be remedied today).

27. However, whilst the Court’s Rules provide for the parties to file their evidence by affidavit – indeed, orders and directions were made requiring that – the proceedings can, if need be, proceed on the basis of oral evidence. That is not desirable, but it is to be noted that Ms Kendrick, as the Applicant, was to have filed by 27 September 2013, and that which she has graced the Court with was filed on 5 November 2013.

28. The father’s material was to be filed by 1 November 2013.  It is late, having been filed on 21 November 2013, but the orders for filing were sequential, and thus, no doubt, the father has been somewhat inconvenienced and delayed through Ms Kendrick’s failure to file in a timely fashion.  

29. It is to be noted that this failure to comply with a court direction is not the first.  Of the 20 appearances that have occurred in these proceedings since this child was a month of age, Ms Kendrick has failed to appear, or to provide adequate instructions to her then attorneys on not less than six occasions.  That much is readily apparent from the court file.  Indeed, on one of those occasions, 30 January 2013, it was necessary for the Court to issue a Commonwealth information order to be able to ascertain the mother’s whereabouts, so that she could be engaged in the proceedings, and the matter advanced towards conclusion. 

30. The mother also asserts that the Court would be disadvantaged through not having available to it evidence from a Family Consultant. That is indeed a curious position, which, if this Court were applying equitable principles, could not possibly be maintained, as the mother most assuredly does not come before the Court with clean hands.

31. The parties had the benefit of a full Family Report, released by orders on 11 August 2010.  That Report, prepared by Dr H, was extensive and involved both parents and X in interviews. Since that time, however, Ms Kendrick has taken it upon herself to not attend any appointment with Family Consultants. 

32. There have been three Child Dispute Conferences, the memorandums relating to each commencing “parties interviewed - “father only”.  On one of those occasions, the mother at least deigned to phone the National Enquiry Centre to indicate “she would be unable to attend the CDC in person”.  She left a mobile phone number, and indicated she would be available to attend by telephone.  The telephone number was called twice by the Family Consultant, and a message left on one occasion.  Ms Kendrick did not answer the phone on either occasion. 

33. An email forwarded to the Family Consultant is attached to the Child Dispute Conference memorandum. That relates to a Child Dispute Conference on 14 November 2012. The email that is, in fact, attached is an email from a staff member of the National Enquiry Centre to the family consultant, which suggested that a letter would be posted or faxed with a medical certificate suggesting the mother’s inability to attend for “…the next couple of days”. 

34. That would not appear to have ever materialised, but, in any event, that is far from material to this determination.

35. Importantly, a full Family Report was ordered in these proceedings being the second such Report. A Family Report is a significant resource of this Court and a resource which is sadly underfunded. The order for the Report was made on 2 May 2013. The mother appeared in person on that day, and was fully aware of the order made.  Indeed, the Court’s usual protocol of requiring the preparation of the Report and its release prior to allocation of hearing dates was dispensed with, and hearing dates allocated at the same time in light of the suggested urgency of the matter being heard and determined. 

36. Thus, expedition has been provided to these parties and this child’s welfare, appropriately so, in light of the conflict between the parents and the lack of certainty for this poor child. 

37. The Family Report interviews occurred on 24 September and 1 October 2013.  The mother did not attend on either occasion. 

38. The Report commences:

    This report is limited by Ms Kendrick’s failure to attend the two appointments that were made for her and X.  The first appointment was scheduled for 24 September in a telephone conversation with Ms Kendrick on the same day.  After she had failed to appear, she claimed not to have received the appointment letter sent to an (omitted) address where she confirmed she still resided.

39. It is a curious circumstance that it would appear, notwithstanding, the hundred plus years in which the postal service has operated that only letters containing welcome news are ever delivered. 

40. The Report continues:

    She also claimed not to have received the telephone message left on the same mobile phone number three days previously, reminding her of the appointment. 

    During the telephone conversation, an appointment was arranged for Ms Kendrick and X the following week, 1 October.  She asked that the report writer send a letter confirming the date and time of the appointment.  A letter to the same home address was sent on 26 September.  It also informed Ms Kendrick that the report writer would telephone her on 30 September to verify that she intended to bring X to the appointment.  That call, made to the same number, went immediately to message bank.  Ms Kendrick was asked to confirm by telephone call or text message that she and X were attending the following day.  She did neither.  Another telephone call after she had failed to arrive on 1 October also went to message bank. 

    In a later telephone conversation with Ms Mantel, the mother’s attorney, she indicated that pending a Legal Aid grant, she would be representing Ms Kendrick.  Ms Mantel reported that Ms Kendrick had failed to attend four or five appointments before finally arriving at her office in Bankstown.

41. I do not include that portion of the Report for any other purpose than completeness.  It is certainly not intended as a slight of the mother’s attorney, nor to suggest that legal professional privilege is waived in any fashion.  It is remembered that clients conduct litigation, not their attorneys.  Thus, to the extent that the mother suggests that the court will not have the benefit of Family Consultancy input, that is indeed so.  The only interviews that have occurred with Dr H on this occasion are those with the father.  Dr H, quite rightly, under the heading Evaluation, sets out in the concluding paragraph:

    This report is of minimal use to the court because of Ms Kendrick’s and X’s lack of participation.

42. The Report goes on to indicate other material, such as that produced on subpoena, which may be of some assistance.  It concludes in the final sentence:

    It may also provide some explanation for what appears to be Ms Kendrick’s limited ability to engage with the outside world.

43. If the hearing dates were vacated, the matter could not be accommodated for quite some months.  In all probability, not before May 2014.  Another 6 months of this child’s life marred by conflict. 

44. The other difficulty that arises, and by reference to High Court decisions such as Haset Sali v SPC Ltd, is that other litigants have been displaced. The three days of hearing that have been allocated to this matter are three days that the other 600 plus matters on my docket are denied the use of.  It is now too close to those dates to allocate them to anybody else, and as a consequence, three days of court time would be wasted and denied to other litigants who do engage in the process, do attend appointments, do attend court, and do desire the determination and conclusion of their matter. 

45. However, those issues, significant and serious as they are, are of far less importance than the court’s overriding obligation established by section 60CA to treat as paramount the child’s best interests. 

46. This child has a right to a childhood. He has a right to a childhood that does not involve, as it would appear to have, but for a very brief respite, his parents in active conflict and litigation.  He will be not denied that right through Ms Kendrick’s failure to attend appointments.  She can give oral evidence.  She will, in that oral evidence, no doubt need to explain her significant difficulties in being able to attend to matters promptly or as Dr H has described “engage with the outside world”. 

47. On the basis of that suggested by Dr H that the mother’s address is in (omitted), some 10 to 15 minutes away from the court, it is difficult to understand how she could possibly have such grave difficulties.  However, they can and will be explored properly and fully in the evidence that is available, whatever that may comprise, whether a combination of oral evidence, affidavit evidence, tender of material, including from that which has already been subpoenaed, primarily by the Independent Children’s Lawyer, or otherwise. 

48. If the proceedings were adjourned, and in light of the amount of resources that have already been fruitlessly invested in these proceedings by way of Family Consultancy arrangements, a further Family Report will not be ordered. 

49. Indeed, if a further Family Report were ordered, it is unlikely it could be completed before hearing dates could even be allocated to this case, such is the delay in obtaining reports from the beleaguered under resources family consultancy service.

50. In those circumstances, I am satisfied that the matter can and should proceed. 

51. The parties have also indicated a desire to attend a Legal Aid litigation conference.  It is suggested that this may be of some assistance in obtaining a grant from Legal Aid subject to that which flows from the conference. However, that is not the role or purpose of Family Dispute Resolution. Family dispute resolution is intended, as set out in its definition in Part II of the Act, to assist parties resolve disputes. 

52. Certainly, Family Dispute Resolution is a worthwhile endeavour, and it would appear that this can be arranged and occur prior to the scheduled hearing dates, because that is one aspect of the assistance available to the parties and the court, incredibly valuable as it is and provided by the Legal Aid Commission, which I can avail myself of readily and quickly. 

53. Accordingly, I will make a further order today for Family Dispute Resolution to occur. The parties can today attend upon the relevant intake person for that program and ensure an appointment is allocated.  If it cannot occur prior to the scheduled hearing dates, then it may not occur at all, because the hearing dates will not be vacated.

I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Judge Harman

Date:  23 January 2014