LENOX & MOTTOLA & RIGA‑GIORDANO (EX TEMPORE)

[2013] FamCA 1173

FAMILY COURT OF AUSTRALIA

LENOX & MOTTOLA & RIGA‑GIORDANO (EX TEMPORE) [2013] FamCA 1173

PRACTICE AND PROCEDURE – Two applications for hearing to be adjourned for a short period of time not opposed by other two parties – Where both self-represented litigants sought to have the hearing adjourned for a short period to get legal representation – Where a number a matters could be done in the intervening period to prepare the matter for hearing

Legal Aid Commission Act 1979 (NSW)

APPLICANT: Mr Lenox

1st RESPONDENT: Ms Mottola

2nd RESPONDENT: Ms Riga-Giordano

INDEPENDENT CHILDREN’S LAWYER: Ms Batey

FILE NUMBER: SYC 6958 of 2010

DATE DELIVERED: 9 September 2013

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 9 September 2013

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Self-represented Litigant

SOLICITOR FOR THE 1ST RESPONDENT: Self-represented Litigant

COUNSEL FOR THE 2ND RESPONDENT: Ms Druitt

SOLICITOR FOR THE 2ND RESPONDENT: Ms Gray of KBD Legal

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Hill

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Batey of Batey's Family Lawyers

Orders

1. Leave is granted to Ms S to appear today for the 3^rd Respondent.

2. Leave is granted to Ms S to withdraw from the proceedings and the interpreter for the 3^rd Respondent is excused.

Later

1. In respect of the father and the mother’s respective applications for adjournment, an adjournment is granted in respect of the hearing to the week commencing 23 September 2013.

2. The mother shall file and serve an Amended Response prior to the resumption of the hearing.

3. Each party shall file and serve one consolidated trial affidavit of themselves prior to the resumption of the hearing. Both parties are to annex to their respective affidavits their full criminal history.

   (a)       In respect of the mother’s affidavit, she shall also:

   (i)Address why she did not comply with urinalysis testing as requested by the Independent Children’s Lawyer on the occasions alleged in 2012 and 2013, and

   (ii)Annex a report from her General Practitioner as to her entire medical situation, including her recent medical episode and illness.

4. The mother shall file and serve an affidavit of her partner prior to the resumption of the hearing. The affidavit shall include his full criminal history and his history of rehabilitation.

5. Leave is granted to the father to file and serve a Further Amended Initiating Application prior to the resumption of the hearing.

6. The document signed by the parties, to which some amendments have been made by the Court, shall become Court’s Exhibit 1 in today’s proceedings, annexed hereto.

7. By consent, orders be made in accordance with paragraphs 1, 3, 4, 5, 6 and 7 of Court’s Exhibit 1:

   BY CONSENT:

   1.That the names of the children B born 2004 and C born 2008 be placed on the Airport Watch List at all points of entry and exit to the Commonwealth of Australia by the Australian Federal Police.

   2.No order.

   3.That within 10 days of this Order the Applicant Father provides to the Second Respondent or her legal representative the signed application for passport for the child B. Such application to include any requisite supporting or identification material required by the Father.

   4.That within 10 days of receiving the above application for passport for B and an application for passport for C, the Mother shall provide to the Second Respondent or her legal representative the signed application for passport for both B and C. Such application to include any requisite supporting or identification material required by the Mother.

   5.That within 10 days of this Order Mr F provides to the Second Respondent or her legal representative the signed application for passport for the child C. Such application to include any requisite supporting or identification material required by the Father.

   6.That the Applicant and the Second Respondent pays 50% each of any application fees associated with any passport application for B.

   7.That the Second Respondent pays any application fees associated with any passport application for C.

8. The matter is adjourned for further hearing to Monday 23 September 2013 at 10.00 am.

9. The listings of 10 and 11 September 2013 are vacated and the matter is listed for further hearing on 25 to 27 September 2013.

Notations:

1. The Family Consultant Ms T is to give evidence on Monday 23 September 2013.

2. The Independent Children’s Lawyer will put material before the Court as to the full criminal history of the mother and her partner, including Facts tendered on sentence or sentencing Remarks for offences which they have been convicted.

3. The mother is put on notice that she may be required to undertake drug testing in the future.

4. It is noted that the parties are relying upon the following documents and the following witnesses in their respective cases:-

   Witnesses:

   Father:  Himself and both of his parents

   Mother:  Herself and her partner

   Maternal Grandmother:  Herself and her sister Ms H

   Independent Children’s Lawyer:      Family Report writer

   Documents:

   Father:             Amended Application filed 5 September 2013

   Consolidated affidavit of himself – to be filed

   An affidavit of the paternal grandmother

   An affidavit of the paternal grandfather

   Parenting Questionnaire filed 22 November 2012

   Mother:           Amended Response – to be filed

   Consolidated affidavit of herself – to be filed

   Affidavit of her partner – to be filed

   Parenting Questionnaire filed 30 November 2012

   Maternal Grandmother:        

   Amended Response filed 4 September 2013

   Affidavit of herself sworn and filed 4 September 2013

   Affidavit of Ms H sworn and filed 6 September 2013

   Parenting Questionnaire filed 14 November 2012

   Independent Children’s Lawyer:     

   Family Report dated 8 August 2013 in respect of B

   Family Report dated 8 August 2013 in respect of C

5. It is noted that the parties agree to the maternal grandmother obtaining passports in respect of the children.

6. It is noted that it is the intention of the parties when the passport of the child B issues that the Second Respondent will give the passport to the Applicant Father to hold.

7. Paragraph 2 of Court’s Exhibit 1 is noted.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Lenox & Mottola & Riga-Giordano has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: SYC 6958 of 2010

Mr Lenox

Applicant

And

Ms Mottola

First Respondent

And

Ms Riga-Giordano
Second Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. The application that the Court has now been met with is something different from that which was originally made.  Originally there was no application by the mother for an adjournment and an application only by the father for an adjournment for six to eight weeks.  The reality is that if this hearing were vacated for the three days that it has been allocated for this week plus the two days of 23 and 24 September 2013, the Court would not simply be in a position to relist it in six to eight weeks’ time. 

2. The father’s application was then amended and both the father and the mother of the children then sought that these three days of the hearing be vacated, that the days on 23 and 24 September 2013 be retained and that the rest of that week be added, that is, the 25 through to the 27 September 2013.

3. In these circumstances, the provisions of section 57 of the Legal Aid Commission Act 1979 (NSW) do apply and certainly whether or not special circumstances exist is quite different now that the application itself has been changed. In this situation, the father clearly was advised very late in the piece that his grant of legal aid was not being extended to this part of the hearing, which is the critical part of his application. He also only just gained access to documents being produced on subpoena and there are lengthy documents that have been produced on subpoena.

4. Bearing in mind that the father has now taken some steps to engage counsel, who I am informed he says that he is available on the adjourned dates, who is prepared to accept instructions regardless of whether he has an instructing solicitor and the father will fund the appearance whether or not he receives legal aid.  On that basis it seems fairly firm that one way or another the matter will proceed on that date and we are actually only talking about a short adjournment of the proceedings, which were not going to be completed today in any event. 

5. I am not sure when the mother was advised that she also had legal aid refused, but she certainly has taken a number of steps available to her, including contacting the Law Society and more recently the Bar Association, and I was also unaware of a charitable organisation providing a legal service, but that is another avenue that she has sought.

6. Again, considering her application is only for this matter to be adjourned for two weeks and does mean that the matter will be able to be completed in one week, I do think that the matters fall under the category of special circumstances and accordingly an adjournment to that date is granted.

7. Since we have the opportunity to raise some of the matters about refining some of the issues, there are a few things that I wanted to raise today.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 9 September 2013.

Associate:                 

Date:    2 October 2013