Lilley and Hayfield

[2012] FamCA 669

FAMILY COURT OF AUSTRALIA

LILLEY & HAYFIELD [2012] FamCA 669

FAMILY LAW – CHILDREN – no appearance by the parties

Family Law Act 1975 (Cth)

APPLICANT: Mr Lilley

RESPONDENT: Ms Hayfield

FILE NUMBER: PAC 5710 of 2007

DATE DELIVERED: 12 July 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 12 July 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: No appearance

COUNSEL FOR THE RESPONDENT: No appearance

Orders

IT IS ORDERED THAT

1.All outstanding applications be adjourned to 2 August 2012 at 9.00 am (“the adjourned date”) estimated to take not longer than one hour for consideration of the pending proceedings being dismissed (without a hearing on the merits) if the parties are not in a position to progress the matter.

2.Pursuant to section 68L(2) of the Family Law Act 1975 the interests of the child J born … January 2006 be independently represented by a lawyer AND IT IS REQUESTED that Victoria Legal Aid arrange such representation and the independent children’s lawyer be appointed in sufficient time for the independent children’s lawyer by the adjourned date to:-

a)     have familiarised him/herself with all of the facts of the case;

b)     have spoken with the parents or, if the father is not available, his mother; and

c)     to make recommendations of the further conduct of the matter.

3.Forthwith upon appointment by the said Victoria Legal Aid or otherwise the independent children’s lawyer file a Notice of Address for Service.

4.My Chambers collate relevant documents from the Court file, index them and send them to Victoria Legal Aid to be passed on to the independent children’s lawyer and provide copy of the index of documents to each other party to the proceedings.

5.I reserve liberty to the parents and the independent children’s lawyer to make application on the adjourned date for the request for the appointment of an independent children’s lawyer to be discharged or as he/she may be advised.

6.The reasons for judgment this day be transcribed and, when settled, copies be made available to the parties.

7.The bundle of correspondence requesting adjournments and the responses thereto be marked Exhibit “A” and remain on the Court file.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Lilley & Hayfield 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 MELBOURNE

FILE NUMBER: PAC 5710 of 2007

Mr Lilley

Applicant

And

Ms Hayfield

Respondent

REASONS FOR JUDGMENT

EX-TEMPORE

1. These proceedings concern J born in January 2006 (“the child”).

2. The child is six years old and in the primary care of the mother who resides in Town B in Victoria.  The father resides in Sydney, New South Wales but, whilst the proceedings have been assigned to me, he has been an inpatient on and off at a psychiatric hospital for treatment for his mental health.

3. The matter came into my docket in early May 2012.  At that point, there had been a hearing before Cronin J in December 2011 and then it seems again on 17 February 2012 when parenting orders were adjusted to provide for some supervision of the father’s time with the child and for the transport associated with the visits. All outstanding applications for final orders were adjourned to a list awaiting a judge on a date to be fixed. 

4. Clearly, the file has some history in the Parramatta Registry of this Court commencing in October 2007, when the child would have been 20 months old, and now occupies four volumes.  Interestingly I could not locate on the court file any family report or social science assessment or like evidence. 

5. Cronin J’s reasons of December 2011 describe the matter “as an unashamed mess” and one aspect of previous parenting orders as “absurd”. There is, however, no identification of the issues requiring determination at a final hearing or what processes may lead to issues being clarified and render the matter and the parents ready for trial.

6. A first date for hearing before me was appointed for 16 May 2012. At the time of notification of the first hearing listing, the parties were requested to consider the appointment of an independent children’s lawyer and whether either sought to be heard in opposition to such an appointment. It was apparent, even at that early stage, that one party, the father, had mental health issues, resides interstate and was representing himself. Furthermore, I had some concern about the rate at which the matter had progressed, or failed to progress, through the court system in two Registries without much, if any, clarification of the justiciable issues.

7. The principles for the conduct of child related proceedings, set out in Section 69N(3) to (7), require the court to give effect, inter alia, to the following precepts:-

   Principle 1

   (3)  The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.

   Principle 2

   (4)  The second principle is that the court is to actively direct, control and manage the conduct of the proceedings.

   Principle 3

   (5)  The third principle is that the proceedings are to be conducted in a way that will safeguard:

   (a)  the child concerned from being subjected to, or exposed to, abuse, neglect or family violence; and

   (b)  the parties to the proceedings against family violence.

   Principle 4

   (6)  The fourth principle is that the proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child-focused parenting by the parties.

   Principle 5

   (7)  The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.

8. I will follow the principles.

9. Independent representation of the child’s interests may bring some clarity to the proceeding but no response was received from the father. The mother sought time to take legal advice on the appropriateness of the child’s interests being represented.

10. Shortly prior to the first day the mother wrote to the court seeking an adjournment of the hearing. She asserted that the parties had been told by Cronin J that their matter would not be heard “until towards the end of the year”. The mother said that that an earlier hearing could disrupt her selection for a Public Authority.

11. On 14 May 2012, the mother’s solicitors filed a notice of ceasing to act on her behalf to regularise the position that the mother is a litigant in person.  Shortly thereafter the mother notified the court that she had been advised by the father’s mother that the father had been admitted to hospital in New South Wales with “acute and severe anxiety and depression,” and he was an inpatient in the Mental Health Unit facility at that hospital.

12. The first day hearing was adjourned to today, 12 July 2012. 

13. On 10 July 2012 a letter was received by my chambers from the mother which appears to be copied to the father via his mother (“the paternal grandmother”).  It requests a further adjournment to a date not earlier than 30 July 2012 “by reason that [father] is still in hospital.”  The mother requests that the adjourned date not fall between 13 and 17 August 2012 or during the September school holidays presumably for New South Wales.

14. I will adjourn the proceedings to 2 August 2012 but make clear, by these reasons, that I require some progress and clarification of the proceedings by that date.   

15. Historically, these proceedings commenced by the father’s application filed on 4 November 2010 with the father seeking orders for, inter alia, equal shared parental responsibility and that the child live with him each alternate weekend (from Friday to Tuesday), from Monday to Tuesday in the other week, half the school holidays and on special days. The father also sought that the child have telephone communication with the parent with whom he is not living each night between 7.00 p.m. and 7.30 p.m. At that stage, the father’s application recites that he was a tax consultant by occupation and resided in Sydney in New South Wales. It says that the parties commenced cohabitation in 2002, married in 2004 and separated in 2006. In his affidavit in support of the application the father deposes that the mother relocated the child to rural Victoria, unilaterally, in mid 2009 in furtherance of her career and that orders were made in December 2009 and April 2010 under circumstances which the father found unsatisfactory but which nonetheless contemplated the child continuing to reside in Victoria. In this context the father was seeking orders for regular face to face time and communication. Under a heading “Property” the father sought that the mother pay him $125,000. It does not appear that the father has ever filed a financial statement.

16. By a response filed on 7 February 2011, the mother sought a dismissal of the father’s application on an interim and final basis, a variation of spend time orders and a transfer of the proceedings to the Federal Magistrates’ Court at Melbourne for inclusion in the Geelong sittings. In her lengthy affidavit in support she deposed, inter alia, to the applicant father having consented to her move from Melbourne and that he suffers from serious mental illness and an addiction to alcohol. The mother sought no financial relief and filed no financial statement.

17. On 7 February 2011, which was the return date of the father’s applications, the proceedings were adjourned to a Docket Registrar on 15 February 2011.

18. On 15 February 2011 the father was self represented and the mother was represented by a lawyer. The mother was ordered to file a financial statement within 21 days and the proceedings were transferred to the Federal Magistrates’ Court at Melbourne for inclusion in the Geelong sittings on a date to be notified.

19. It does not appear that the mother ever complied with the order to file a financial statement and nor did the file go to the Federal Magistrates Court.

20. A decree nisi of dissolution of marriage was granted, in Melbourne, on 14 April 2011.

21. On 2 June 2011 an order was made, by consent, by Collier J in Parramatta varying the Order of 15 February 2011 and providing a transfer of the matter to this Registry of the Court.

22. The matter came before Registrar Sikiotis, in Melbourne, on 13 July 2011. Both parties were represented. The matter was adjourned for a telephone mention on 16 November 2011 and, in the meantime:-

    a)The father was to “file and serve by 3 August 2011 any relevant affidavit identifying the financial issues in dispute”; and

    b)The mother was to “file and serve by 31 August 2011 an amended response … for final orders to address property and financial issues, and relevant affidavit in reply and a financial statement.”

    Neither party filed any documents in compliance with the Order.

23. On 5 October 2011 the mother filed an amended application in a case seeking a dismissal of the father’s applications (again) and on the same day also filed an affidavit directed, in part, to the merits of his case or, to be more precise, the lack of merit.

24. On 16 November 2011, the father appeared for himself and a solicitor appeared for the mother. The proceedings were adjourned to Cronin J on 20 December 2011 and each party was ordered to file further documents which appear to be by way of compliance with earlier orders.

25. On 2 December 2011 the father filed a response seeking a dismissal of the mother’s application in a case. There is an affidavit sworn by the father on 1 December 2011 with a large annexure. It is a rambling document containing irrelevant and inadmissible material. There may be relevant facts within the 65 pages but they are not immediately apparent.

26. Insofar as the parties seek or oppose parenting orders, this is a proceeding to which the Less Adversarial Trial provisions of Division 12A of Part VII of the Family Law Act1975 (Cth) (“the Act”) apply. Section 69ZT operates to exclude various divisions and chapters of the Evidence Act1995 (Cth) which deal with general rules about giving evidence[1], cross examination[2], documents, hearsay, opinion, admissions, evidence of judgments and convictions, tendency and coincidence, credibility and character. However, neither s 55 nor s 135 of the Evidence Act are excluded. Therefore it remains the case that:-

    a)Only relevant evidence is admissible. Section 55 provides that relevant evidence is evidence which if it were accepted, could rationally affect (either directly of indirectly) the assessment of the probability of the existence of a fact in issue in the proceedings; and

    b)The court may exclude or limit the use of evidence which is relevant and thus admissible if the court is satisfied that the probative value of the evidence is substantially outweighed by the danger that the evidence might:-

    i)be unfairly prejudicial to a party[3]; or

    ii)be misleading or confusing[4]; or

    iii)cause or result in undue waste of time.[5]

    [1] With the exception of ss 26, 30, 36 (s 69ZT(1)(a) of the Act refers).

    [2] With the exception of s 41 relating to improper questions.  

    [3] Section 135(a) Evidence Act1995 (Cth)

    [4] Section 135(b) Evidence Act1995 (Cth)

    [5] Section 135(c) Evidence Act1995 (Cth)

1. Insofar as these proceedings relate to financial matters, the rules of evidence are not displaced. There has been no consent pursuant to Section 69ZM(2)(b) of the Act nor a decision under Section 69ZT(3) of the Act. It is far from certain that less adversarial proceedings can be heard together with proceedings that are not but no one appears to have turned their mind to that yet.

2. I will not read the father’s affidavit of 1 December 2011. I am not obliged to consider material which is in an inappropriate form. It would be unfair and unjust to the mother and any other party for me to attempt to distil from the father’s long annexure what is relevant and then have regard to it. Finally, it is impossible to determine relevance without knowing what the issues are.

3. On 20 December 2011 the mother filed a response to initiating application seeking a dismissal of the father’s application filed 2 December 2011, security for costs in the event that the financial matter proceeds and some parenting and procedural orders. Her affidavit, also filed 20 December 2011, is lengthy and it is indexed. She has still not filed a financial statement.

4. As I said earlier in these reasons, the matter eventually came to me in May 2012.

5. It is of concern to me that, since the matter has been in my docket and two court events have passed (16 May 2012 and today), the father has not participated in the proceedings in any way. Correspondence has been sent by the mother and copied to the father’s mother. However, the mother has previously deposed to a cooperative relationship with her mother in law, including the mother in law acting arguably to the detriment of the father.

6. It appears that it is accepted by the mother that the father is currently under a disability which precludes him from being able to participate in the proceedings. 

7. It would be appropriate for the father, somebody on his behalf or the mother to consider whether it is appropriate for a case guardian to be appointed within the meaning of Part 6.3 of the Family Law Rules 2004 and to do so sooner rather than later.

8. Where, as here, the mother seeks to adjourn proceedings and the father cannot participate in them I doubt that allocation to a docket for final hearing is appropriate.

9. In the absence of there being any current social science evidence in relation to the child’s wellbeing, I require someone to tell me on the adjourned date what is going on with the parenting aspects of the case and, preferably, with the financial aspect too. 

10. I will adjourn the matter to 2 August 2012 as I note that fits comfortably within the dates that are acceptable to the mother. In the meantime, I will proceed to request the appointment of an independent children’s lawyer pursuant to section 68L of the Act. I do so with the intention that, regardless of what steps may be taken by either of the child’s parents between now and 2 August 2012, there will be someone before the court who can tell me what is going on in relation to the child.

11. I expect that before 2 August 2012 the independent children’s lawyer will:-

    c)Hold discussions with the mother;

    d)Hold discussions with the father if possible;

    e)Hold discussions with the paternal grandmother if the independent children’s lawyer considers that is appropriate to do so;

    f)Form a personal view about whether the father likely needs a case guardian, although it will not fall to the independent children’s lawyer to make that application. 

    The independent children’s lawyer may also give consideration as to what he or she thinks is the best outcome – the best outcome for the child in relation to the current proceedings – and to communicate that in open correspondence to each parent. 

12. If it does not appear that in the foreseeable future the father will be in a position to prosecute his application, it may be appropriate to have that application struck out with a right of reinstatement. Alternatively, it may be appropriate that all proceedings be dismissed making clear that there is no determination on the merits, although dismissal would create problems for an application for alteration of property interests having regard to the parents having become divorced in mid-May 2011.

13. I accept that the lack of preparedness of the matter is not entirely the fault of the parties.  It would be of assistance if those who allocate cases to judicial dockets for final hearing could do so within the timelines that the parties have been told to anticipate.  In this case I gather that the parties were told that they would have a hearing later in 2012 and were not advised that the matter would be allocated to a judge any earlier than that. 

14. I do not want the child or his parents to be deprived of the priority that they now have in the court and the fact that their matter can be allocated extensive judge time if it needs and soon.  By the same token, I do not want to displace other cases which are ready to be heard from coming on for determination.

15. Absent some activity by the parties, I will require each to address me on the next return date why the proceedings ought not be dismissed or, alternatively, struck out. I would consider extending to each parent leave to have any further application which is filed within a year listed to me initially for directions so that they will avoid the pre-trial court events and will not have to start the whole process all over again.

16. I will be available to hear submissions and entertain any application on 2 August 2012 for the independent children’s lawyer to be discharged, but, in the meantime, I want one to be appointed so that the case can progress consistently with the child’s best interests.

I certify that the preceding forty two (42) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 12 July 2012.

Associate: 

Date:  27 July 2012