Keymer & Keymer

[2023] FedCFamC1F 454

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Keymer & Keymer [2023] FedCFamC1F 454

File number(s):	BRC 976 of 2019
Judgment of:	GILL J
Date of judgment:	5 June 2023
Catchwords:	FAMILY LAW - Parenting proceedings - Refusal of application to adjourn trial Property proceedings - Adjournment of trial
Legislation:	Family Law Act 1975 (Cth) - s 102NA
Division:	Division 1 First Instance
Number of paragraphs:	16
Date of hearing:	5 June 2023
Place:	Canberra
Solicitor for the Applicant:	Litigant in Person
Counsel for the Respondent:	Mr Haddock
Solicitor for the Respondent:	KPW Lawyers
Solicitor for the Independent Children's Lawyer:	Ms Cruise, Legal Aid

ORDERS

BRC 976 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS KEYMER

Applicant

AND:

MR KEYMER

Respondent

INDEPENDENT CHILDREN’S LAWYER

order made by:	GILL J
DATE OF ORDER:	5 JUNE 2023

THE COURT ORDERS THAT:

1.The application to vacate the property trial is granted.

2.The application to vacate the parenting proceedings is refused. 

3.The mother is granted immediate access to all material produced on subpoena and all redacted notifier material produced pursuant to s 69ZW on the basis that the inspection occurs within the registry.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Keymer & Keymer has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

GILL J

1. This matter concerns a two-pronged application to adjourn or vacate the trial date which is allocated for today. 

2. The first of those prongs is for the adjournment of the property adjustment proceedings.  All parties are common in their position that there has been inadequate evidence and preparation of the property proceedings to such an extent that those proceedings cannot continue today. 

3. The second prong is as to the parenting proceedings for the child of the parties.  

4. The mother seeks to vacate the trial which is scheduled to commence today, whereas the father and the Independent Children’s Lawyer (the “ICL”) both seek to have it determined independently from the property proceedings and finalised by trial this week. 

5. The mother’s application to vacate is firmly grounded in procedural fairness complaints.  The first is that although via their legal representatives the father and the ICL have had access to s 69ZW material produced by South Australian police in a context where the mother is subject to a number of contested criminal proceedings in South Australia, the mother has not been granted access to that material by operation of a court order.  It may be observed that the father and the ICL have indicated that they do not propose to lead any evidence from the s 69ZW material. 

6. The second complaint made by the mother is that the family report prepared for these proceedings is now out of date having been released in April 2022.  The mother observes that since that time the father has remarried, had another child and the father and his partner and the children have moved out of town.  She also observes that the child has commenced school at a new school.  It may however be observed that in the preparation of the family report the reporter referred to the fact of the father’s new partner and to the prospect of the move out of town. 

7. The third complaint made by the mother is that her psychological or psychiatric state is in issue and she complains that there is a lack of report or evidence from her practitioners.  It may be observed that this is a matter dealt with in the family report which has been available to the mother for more than a year now. 

8. The mother complains as to a lack of having her witnesses available for the hearing. The mother complains that she has had restricted access to material for the preparation of the proceedings. The mother complains that she lacks legal representation and by virtue of an order made pursuant to s 102NA is unable to personally cross-examine the father. The mother further complains that she has been hampered by the conduct of legal proceedings in South Australia and that perhaps partly as a consequence of those criminal proceedings being prosecuted against her (she observes in many cases unsuccessfully), she has also been suffering from some form of mental block in the preparation of these proceedings. Finally, the mother complains that she is financially crippled at present and that too has hindered her preparation, although it may be noted that she recently received a partial property adjustment such that she received $10,000.

9. The mother gave oral evidence in support of her application to vacate.  It may be observed in answer to the various matters raised by the mother that she has taken no steps to file any evidential material whatsoever in the parenting matter to prepare the matter for trial.  It may also be observed that this is the second attempt of the trial, the trial having earlier been listed for April 2023 but vacated due to the non-compliance of each of the parties.  When this matter was listed for trial to commence today filing directions were given being, in so far as they related to parenting, been complied with by the father, although as observed earlier not adequately complied with by him in respect of the financial proceedings. 

10. As observed nothing has been filed by the mother and this is despite her assertion is seen at Exhibit H2 of her preparedness to file material in order to change the trial date.  It may be observed that despite that assertion made in mid-May the mother did not do so. 

11. When this trial date was set it was set over the objection of the mother.  However, noting the objection and her concerns as to whether or not she could be ready for the trial, she and the father were granted leave to allow an application to be made to the court in respect of the listing of the matter.  This was specifically noted at the time of giving the direction to be to permit the parties to make an application to vacate the trial date if it could not be made ready.  The mother did not take advantage of that direction which permitted the relisting of the matter and did not make any application for the vacating of the trial date until orally this morning, the first morning of the trial when the ICL and the father, who had already fully prepared the parenting matter, were in attendance. 

12. The practical impediments raised by the mother had the capacity, if adequately supported to, perhaps, be quite compelling. For example, they involved her involvement in parallel proceedings being criminal proceedings in South Australia. They involved evidence as to attempt to secure a legal practitioner and her steps to follow-up legal representation pursuant to the scheme made available in relation to s 102NA of the Act. The mother also gave evidence of her lack of access to some material. However, these matters at least as taken together, were not supported sufficiently by the mother, for example, her assertions of engagement in respect of the s 102NA legal representation scheme, even if accepted, were not indicative of any proper effort to secure representation. Again, by way of example, the mother’s explanation of criminal proceedings were of insufficient description to see how they have been an impediment to her preparation of any material whatsoever for the trial of this matter. By way of further example, the mother’s attempts to secure legal representation were insufficiently characterised to be seen as proper attempts to make herself ready for the trial. The mother, it may be seen, has filed no material for this trial despite having quite recently shown her capacity to file material, even if unrepresented in a recent application that she made before the court, which sought both parenting orders on the interim and sought a partial property settlement. This indicates that even as a self-represented litigant the mother has some capacity to file and prepare material. She did not do so despite the direct warning that I had given on a previous occasion that failure to file material may leave her without any evidence. Further, the mother gave no evidence of any step that she has taken to engage with the witness that she says might be necessary for the case or even to start preparation of material other than giving evidence that she now has internet access and a laptop computer.

13. Against that background the mother’s complaints regarding the family report may also be observed to be of little weight.  While the report may be one year old, in that time it appears that there has been minimum interaction between the mother and the child and no change in the underlying substantive circumstances.  

14. The father and the ICL refer to the nature of the parenting case as being a matter of weight in determining that the proceedings should go ahead now.  They each submit that it is important to resolve the proceedings for the child.  At present the arrangement is that the mother is spending ad hoc supervised time with the child only.  The evidence further is suggestive that even with supervised time being the arrangement the child is being placed at risk when in contact with the mother.  This appears to be a significant issue within the case and has led to the ICL’s position being one that there should be recognition time only to end or to minimise that risk, 

15. It is correct then to say that this is firstly a long outstanding case.  Secondly, there are strong issues of risk even when the child is supervised.  Thirdly, the matter appears in so far as relates to parenting, to be fully prepared by the father and ICL.  Fourthly, no adequate explanation has been given by the mother for her failure to make herself ready.  Fifthly, no adequate description of circumstances and how it is that they have deprived the mother of the opportunity to be ready has been given, or how they have deprived her of procedural fairness in her capacity to conduct the trial now.  It is true that if the trial goes ahead at this stage there will be limited participation by the mother.  For example, there is no evidence that she has put on that she will be able to rely upon.  Further example is that she will not be permitted to personally cross-examine the father and hence there will be no cross-examination of the father by the mother and thirdly, although I do not know at this stage, it seems unlikely that the family report writer has been secured for the purposes of cross-examination.  Despite what was a superficially attractive explanation by the mother, in substance the matters that she has raised have not been sufficient to justify the further prolonging of the child-related proceedings when the mother has in fact been given the opportunity to be ready, warned of the consequences if she was not ready and not taken up the opportunity in any timely manner to seek a different regime for the conduct of the trial. 

16. Accordingly, the proceedings will continue.  However proceedings will be deferred until 10 am tomorrow morning to allow the mother to have access to the subpoena and s 69ZW material that she says she has not been able to access. 

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill.

Associate:

Dated:       5 June 2023