Lenton & Keble

[2020] FamCA 677

FAMILY COURT OF AUSTRALIA

LENTON & KEBLE AND ANOR [2020] FamCA 677

FAMILY LAW – PRACTICE AND PROCEDURE – where the second respondent seeks an adjournment of the final hearing to obtain legal advice – where the applicant, the first respondent and the ICL oppose that application – where the final hearing is listed to commence the same day – where the second respondent has had ample time to engage a lawyer – where the proceedings have been on foot for three years – where the second respondent has not complied with procedural orders – the second respondent’s application for an adjournment be refused.

Family Law Act 1975 (Cth) s 97
Family Law Rules 2004 (Cth) rr 1.04, 1.08

Mertens & Mertens [2016] FamCAFC 136

APPLICANT: Mr Lenton

FIRST RESPONDENT: Ms Keble

SECOND RESPONDENT: Mr Davie

INDEPENDENT CHILDREN’S LAWYER: Heinz & Partners

FILE NUMBER: MLC 8563 of 2017

DATE DELIVERED: 1 June 2020

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 1 June 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Lia, Sarah Lia

SOLICITOR FOR THE FIRST 

RESPONDENT:

Ms Stone, Ballarat Lawyers

THE SECOND RESPONDENT: In person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Ms Gleeson, Heinz & Partners

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 8563 of 2017

Mr Lenton

Applicant

And

Ms Keble

First Respondent

And

Mr Davie

Second Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This matter comes before the Court today for final hearing in relation to the parenting arrangements for the child Z, who is aged five years. 

2. The parties to the proceeding are the applicant Mr Lenton, who is the former partner of the first respondent mother and who has been a father figure to the child throughout his life. The applicant is the person to whom the child refers to and knows as his dad. 

3. The first respondent mother is Ms Keble.

4. The second respondent is Mr Davie who is the child’s biological father, albeit that he has had a limited role in the child’s life. 

5. On 9 October 2019 I made procedural orders in anticipation of a first day hearing which was listed on 7 February 2020.  At the time those procedural orders were made, the second respondent was legally represented.  The second respondent’s lawyers filed a Notice of Ceasing to Act on 18 October 2019.  That notice confirmed that they had informed the second respondent at his last known residential address that the next court event was to occur on 7 February 2020.  The address to which the notice was provided was an address in Suburb B, which the second respondent has today confirmed is the residential address of his father. 

6. The matter next came before the Court on 7 February 2020.  That day there was no appearance by the second respondent.  I made trial directions that day listing the matter for final hearing before me to commence on 1 June 2020.  I made further procedural orders regarding the filing of trial affidavit material and for the preparation of a family report. 

7. The final hearing was to commence before me today.  The second respondent appears in person and he makes an oral application for these proceedings to be adjourned.  That application is opposed by the applicant, the first respondent and the independent children's lawyer (“ICL”).  The second respondent submits that an adjournment is necessary to enable him to obtain legal advice and to prepare for a hearing.  He submits that he has had difficulties in preparing the matter and that he has had a death in his family, which resulted in him having to travel to Queensland. 

8. The second respondent also referred to the birth of another child in his family. Upon further inquiry it emerged that his infant child was born in … 2018, almost 18 months prior to the time when this matter was actually fixed for hearing.  The second respondent submits that he wishes to play a role in the life of the child, that it is necessary for him to seek orders of the Court to ensure that he is able to fulfil and play a role in the child’s life.  He urges the Court to adjourn the proceedings to enable him to obtain legal advice so that he can participate in the Court process and orders can be made that will ensure that he has the opportunity of playing a meaningful role in the child’s life. 

9. During the course of submissions, I raised with the second respondent my concern as to his non-compliance with a series of orders regarding the preparation of this matter for final hearing.  In particular, I drew his attention to the orders made by me on 9 October 2019 which required that he file an amended Response to Initiating Application by 6 December 2019.  The second respondent confirmed that he had not complied with that order.  He could provide no explanation as to why that order was not complied with.  I also drew his attention to the orders that I had made on 7 February 2020 and, in particular, paragraph 4 of those orders which required the second respondent to file and serve his amended Response to Initiating Application and his affidavits of evidence-in-chief by 3 April 2020.  The second respondent confirmed that he had not complied with those orders.  Again, he could provide no explanation as to his non-compliance with those orders.

10. The applicant opposes the adjournment application. The applicant’s solicitor submitted to the Court that these proceedings were commenced in 2017, thus they have been on foot for a considerable period of time. It is submitted, therefore, that the proceedings have been burdensome not only on the parties but on the child and that the time has now come for the proceedings to be brought to a conclusion.  The applicant’s solicitor further submitted that there has been significant preparation undertaken for the commencement of the final hearing. 

11. The matter has had two family reports; the proceedings started their life in the Federal Circuit Court and having had a trial listing in that Court, which necessitated the preparation of a family report, as well as the trial preparation undertaken pursuant to my orders of 7 February 2020.  It was submitted, and I accept, that the second respondent has been represented for much of the proceedings and has had ample opportunity to engage with the Court processes.  He has elected not to do so.  As a result, it is submitted that the time has now come for the proceedings to be brought to a conclusion and for the trial to proceed as listed. 

12. The solicitor for the first respondent made similar submissions in opposition to the adjournment application.  She noted that the proceedings have been on foot since 2017, that there has been a trial listed in the Federal Circuit Court which ultimately resulted in the transfer of the proceedings to this Court and that there have been two family reports prepared.  It was submitted that in circumstances where the second respondent has not engaged in the preparation of either family report, that the matter should now proceed notwithstanding that he has not filed material in accordance with my trial directions.  In addition to the second respondent’s non-compliance with directions around the preparation of the two family reports, it was noted that he has failed to comply with orders for hair follicle testing.  The second respondent confirmed during his submissions that he has not complied with orders for hair follicle testing.  His explanation for his non-compliance was that he could not afford the costs of those tests. 

13. The ICL similarly opposes the second respondent’s application for an adjournment.  She noted that the second respondent was legally represented at the time that I made orders listing the matter for a first day hearing, therefore he must have had notice of the hearing listed on 7 February 2020.  I accept that submission, particularly in light of the information contained in the Notice of Ceasing to Act filed on 18 October 2019, which confirms that the next Court listed date was 7 February 2020.  The ICL pointed to the non-compliance by the second respondent with the trial directions made on 7 February 2020 as well as the orders made on 9 October 2019.  She also relied upon the non-compliance by the second respondent with the orders for drug testing, particularly the hair follicle tests. 

14. The ICL also noted that the second respondent has not been reliable in terms of the time he has spent with the child, notwithstanding the opportunity he has had to spend time with the child.  In support of that submission, the ICL referred me to paragraph 43 of the family report dated 11 May 2020, wherein the family consultant noted the reports of the mother as to the second respondent’s engagement with the child.  It was reported by the first respondent to the family consultant that the second respondent had spent no time with the child since late 2019 and that there was no established routine or pattern of time between the child and the second respondent.  The first respondent indicated that there had been arrangements previously made where the second respondent had failed to attend. 

15. The ICL submitted that in circumstances where the proceedings have been on foot for a prolonged period and where there have been two listed trial dates, the time has now come for the proceedings to be brought to a conclusion.  She noted that the applicant and first respondent have been stable and consistent figures in the child’s life and in circumstances where there is agreement between those two parties as to future parenting arrangements for the child, the matter should be allowed to proceed to a conclusion. 

16. The determination of any adjournment application is always a delicate balancing act.  The Court has a wide discretion to grant adjournments but it is not an unfettered discretion.  In the decision of Mertens & Mertens [2016] FamCAFC 136, Kent J helpfully summarised the matters to be taken into account when determining an application for an adjournment as follows:-

    [3]The Court obviously has a wide discretion to grant adjournments but it is not a discretion which is unfettered. The Court should take into account the reasons for the adjournment, any period of delay in making the application, any prejudice or disadvantage to other parties that cannot be compensated by way of orders for costs and indeed, since decisions of the High Court, for example in Aon Risk Services v Australian National University [2009] 239 CLR 175, the effect also upon the Court and other litigants before the Court of the adjournment.

    [4]The fundamental consideration is whether the adjournment is necessary to do justice as between the parties.

    [5]Added to that which I have already observed, s 97 (3) of the Family Law Act 1975 (Cth) (“the Act”) imposes an obligation upon the Court to endeavour to ensure that proceedings are not protracted and the Family Law Rules 2004 (Cth) (“the Rules”) express objectives for cases to be resolved in a just and timely manner at a cost to the parties and to the Court which is reasonable in the circumstances of the case. I refer to, for example, r 1.04 of the Rules. Notably the Rules also impose responsibilities upon parties to proceedings. For example, r 1.08 imposes an obligation upon parties to ensure their readiness for court events; and to give notice as soon as possible of an intention to apply for an adjournment…

17. Having regard to those considerations, I am not persuaded that it is appropriate in the circumstances of this case to grant an adjournment of the proceedings.  That this is so is on a number of bases.  The second respondent provides no explanation as to why the adjournment is necessary other than to assert that he requires the assistance of a lawyer.  The reality is that the position with respect to his legal representation has not changed since October of 2019.  The second respondent has had a period of almost eight months to secure legal representation for this hearing.  He provides no explanation as to why he has not secured such representation since his previous lawyers filed the Notice of Ceasing to Act to which I earlier referred. 

18. Further, the second respondent provides no explanation or reason as to why it is that he has not complied with procedural orders made by me on 9 October 2019 and 7 February 2020, which required him to file an amended Response to Initiating Application and trial affidavit material in anticipation of today’s hearing.  Although he had referred to the birth of his second child as a justification for non-compliance with Court orders, upon further examination of that explanation it emerged that the child had been born in … of 2018, well prior to me making those procedural orders fixing this matter for trial. 

19. There is also no reasonable explanation provided by the second respondent as to why he did not participate in the preparation of the family report for these proceedings or, indeed, the family report for the trial that was listed in the Federal Circuit Court.  The second respondent indicated that he had work commitments at the time of the preparation of the first family report.  That does not explain why he did not participate in the report in respect of these proceedings. 

20. As I have indicated above, notice in relation to these proceedings has been forwarded to his previous residential address at the home of his father. The second respondent indicates that his father has not passed on mail to him.  However, in circumstances where the ICL indicates that the second respondent’s father has made direct contact with the ICL regarding these proceedings, that communication referred to in the helpful and detailed case outline that is prepared by the ICL filed 27 May 2020, I consider that it would be unlikely that correspondence to the father from the Court would not be passed on to him by the paternal grandfather. 

21. Further, I note that the second respondent has had notice of today’s hearing and only at the eleventh hour gave notice of his intention to seek an adjournment of the proceedings.  It was not until after 4.00pm on 31 May 2020, being the Friday before the commencement of this trial on Monday 1 June 2020 at 10.00am that the second respondent saw fit to forward an email to the ICL giving notice of his intention to seek this adjournment.  Again, there is no explanation proffered by the second respondent as to why he has left his notification of his intentions in that regard to that late period in the context of what has been a long-running proceeding.  The other parties to the proceeding have been engaged in Court processes for three years, a long period.  The parties have engaged in the preparation of two family reports at significant expense to the community. 

22. Further, the child, who is aged only five years, has no other experience of life other than a life where his caregivers have been engaged in litigation regarding parenting arrangements.  He was aged only two years at the time this litigation commenced.   

23. I am satisfied, having regard to that history that the time has come for these proceedings to reach their conclusion.  The proceedings have been burdensome on the applicant and the first respondent but, more importantly, they have no doubt significantly impacted upon the child. It is in my view that his best interests are served by ensuring that the proceedings are brought to an end.

24. Having regard to all of those matters I am satisfied that the adjournment application made by the second respondent should be refused.   

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 1 June 2020.

Associate: 

Date:  1 June 2020