Kingley and Arndale
[2010] FamCA 967
•5 October 2010
FAMILY COURT OF AUSTRALIA
| KINGLEY & ARNDALE | [2010] FamCA 967 |
| FAMILY LAW – PROCEDURE – Oral application for adjournment – Application dismissed |
| Family Law Rules 2004 Rule 18.3 |
| B & B (unreported) [1999] FamCA 1992 Cheung v The Queen (1999) 73 ALJR 1093 L & L Appeal EA96 of 1996, Full Court Family Court of Australia, 13 December 1996 (reported at (1997) FLC 92-729 but not in relation to adjournments) Reisner & Reisner [2010] FamCA 473 |
| APPLICANT: | Mr Kingley |
| RESPONDENT: | Ms Arndale |
| FILE NUMBER: | BRC | 1363 | of | 2008 |
| DATE DELIVERED: | 5 October 2010 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | O’Reilly J |
| HEARING DATE: | 5 October 2010 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Anderson |
| SOLICITOR FOR THE APPLICANT: | Smith & Associates |
| COUNSEL FOR THE RESPONDENT: | Mr Baston Direct Brief |
| COUNSEL FOR THE INDEPENDENT CHILDRENS LAWYER: | Ms Brasch |
| SOLICITOR FOR THE FOR THE INDEPENDENT CHILDRENS LAWYER: | Ms Dart Legal Aid Queensland |
Orders
The mother’s oral application for an adjournment of paragraphs 4, 5 and 6 of her application filed 30 June 2010 is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Kingley & Arndale is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 1363 of 2008
| MR KINGLEY |
Applicant
and
| MS ARNDALE |
Respondent
REASONS FOR JUDGMENT
This is an application by the mother by application in a case filed 30 June 2010, paragraphs 4, 5 and 6, that a child and parent issues assessment report 7 September 2009 and family report 30 April 2010 by Mr P, family consultant, be removed from the Court file and all copies of such documents be recovered from any person to whom such documents have been provided, that is, in effect, that Mr P be removed as the family consultant in the matter, that the independent children’s lawyer be discharged and that a new independent children’s lawyer and new family report writer be appointed.
The matter was listed before me on 27 August 2010. A day or so prior to that, Mr Baston of Counsel for the mother notified that the matter could not proceed as the mother had been diagnosed with a brain tumour. She subsequently has proceeded to surgery and unfortunately has been told that the tumour is characterised as a Grade 4 tumour. She is to undergo chemotherapy and radiation therapy. Regrettably I am told the prognosis for her is grave, at one to three years of life. The surgery and illness necessitated, as I have mentioned, that the listing on 27 August 2010 could not proceed. By arrangement with the parties it has been relisted before me today. Somewhat surprisingly, Mr Baston of Counsel, who appears on a direct brief, has on the mother’s behalf sought an adjournment of her application. He has made clear that the mother’s instructions are that if I do not grant an adjournment he will not continue as Counsel today to argue the mother’s application, but that the mother will argue it herself.
Mr Baston has tendered and relies upon a report by Mr G, clinical psychologist: ex 1. It speaks of considerable emotional distress that the mother is under by the continuance in the matter of Mr P and continuation of the circulation of his reports, and, by reference to cancer research literature, not only her emotional distress but possibly adverse effect on her tumour growth and spread. I observed thus to Mr Baston during argument that I find the application for adjournment a little bit strange, if not illogical, for the obvious conundrum that if, as I would infer from Mr G’s report, Mr P is removed and his reports removed from circulation the mother’s distress would ease, then I cannot see the logic in seeking that her application for that result not proceed today.
The background to the matter is that Barry J, in a matter of Reisner & Reisner [2010] FamCA 473 stood aside earlier this year, on 28 April 2010, on the basis that he, it would appear, unwittingly had discussed that matter with Mr P who was the family consultant in that matter. The transcript of 28 April 2010 in Reisner at p2, lines 14 to 23, shows a statement attributed to Mr P by Counsel in that matter, Ms Brasch of Counsel, who appears today for the independent children’s lawyer, to the effect that Mr P had advised that he had gone to the chambers of Barry J to discuss “another matter”. That matter was not identified at that stage. The circumstance however is that on 4 May 2010 I was asked by Murphy J, the case management judge, to take this matter onto my docket on the basis that Barry J had stood aside. Plainly enough, the other matter referred to is this matter, hence the mother’s substantive application in relation to Mr P.
The application for adjournment is put on the basis by Mr Baston that no prejudice would flow, and that the mother’s substantive application does not need to be resolved today. Mr Anderson of Counsel, for the father, and Ms Brasch of Counsel, for the independent children’s lawyer, oppose the application for adjournment. The father has not seen the child C, the child the subject of the proceedings, for a considerable period of time. He has an urgent application for the child to spend time with him. That application perhaps has become more urgent in the circumstances of the mother’s unfortunate health condition. This application for interim parenting orders presently is set down before the Principal Registrar on 22 October 2010, as is the mother’s competing application for contrary interim parenting orders.
Mr Anderson put, which is plain, that the interim competing parenting applications cannot proceed until the Court and the parties know whether Mr P is to continue as the family consultant and whether the presently appointed independent children’s lawyer is to continue in that role. Put another way, in the face of the mother’s application in particular for the removal of Mr P and that his reports not be used, it will be impossible for the Principal Registrar to hear the competing interim parenting applications on 22 October 2010, or on any other date, until I rule on the mother’s application concerning Mr P.
Ms Brasch supports that analysis and points to the principle that even in procedural matters there are cases in which a child’s best interests should be considered, and that in this case the child’s best interests warrant the early determination of the mother’s application concerning Mr P and the independent children’s lawyer.
The principles relating to adjournment are well understood. I would refer however to Cheung v The Queen (1999) 73 ALJR 1093 at 1094-5, to the effect that although the Court has both the express and implied power to grant an adjournment where this is necessary to do justice between the parties, where a refusal would seriously prejudice a party an adjournment ordinarily should be granted.
There is a very wide discretion when a trial judge or a judge is asked to consider adjourning proceedings. In L & L, Appeal EA96 of 1996, 13 December 1996 (unreported on this point) the Full Court of this Court said:
It is also appropriate … to acknowledge that it is ordinarily in the interests of justice, not only in respect of a particular case but also in respect of the wider concept of public interest in the proper administration of justice, that matters set for hearing in a court of justice proceed to hearing on the dates allocated, rather than be adjourned with consequent waste of judicial time and additional delay in the disposition of other cases awaiting in the courts’ lists.
Further, in B & B (unreported) [1999] FamCA 1992, 19 November 1999, the Full Court said at [22]:
22.When assessing the issues appropriate to the determination of whether to grant an adjournment, his Honour ought to have inquired:
· whether the adjournment was sought for a reasonable period of time
· whether there was adequate reason given for the request for the adjournment
· what prejudice would either party suffer as a result of the adjournment
· whether that prejudice could be met with a costs order.
Applying those principles to this particular case, I am not satisfied that the mother would suffer prejudice, let alone serious prejudice, to her case if her application today for adjournment should be refused. Indeed, on the contrary, I have identified the illogical conundrum in her application. Conversely, it seems to me that it would be the mother who would suffer prejudice if her application, in particular her application to remove Mr P, does not proceed as expeditiously as the Court can accommodate that application.
Mr Baston put that if an adjournment is granted on behalf of the mother it would be for a reasonable period of time, being a short period, because the Principal Registrar could hear it on 22 October 2010 with the competing interim parenting applications. I have pointed out already the fallacy of that contention. Moreover, as I made clear during argument, the mother’s application for the discharge of Mr P and the independent children’s lawyer is not a matter which ought be delegated to a Registrar, even the Principal Registrar, and even if there is power under the Family Law Rules 2004, for the reason that the exigencies of the case are such that as few steps as are necessary should be the objective rather than to take the risk of enlarging the number of steps. Plainly enough, if this matter were to go to the Principal Registrar, a disenchanted party could seek a review before a judge, and then an appeal to the Appeal Division. By a judge of the Court dealing with the matter, even if there subsequently be an appeal, at least one unnecessary step would be eliminated, so that there would be two steps rather than potentially three steps.
In all the circumstances, I am not satisfied that the mother has given adequate reason for her request for the adjournment. I have dealt with the aspect of prejudice to the mother. In my view, there would be intolerable prejudice to the father if the mother’s application for adjournment is granted because, unnecessarily and unfairly, there would be delay in the setting down, hearing and determination of his application for interim parenting orders that the child spend time with him, which has not occurred now since March 2010, the child being 3½ years old. There would also be intolerable prejudice to the child’s case by the uncertainty, during the patency of the mother’s application, as to whether the child’s lawyer will be the existing independent children’s lawyer or another. Plainly, the matter cannot progress, in the child’s best interests, until that is determined by a judge.
In all of the circumstances, the application for adjournment is refused.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Reilly delivered on 5 October 2010.
Associate:
Date: October 2010
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