Longley and Stavridis

[2011] FamCA 871

FAMILY COURT OF AUSTRALIA

LONGLEY & STAVRIDIS [2011] FamCA 871

FAMILY LAW – Final hearing adjourned when solicitors and counsel withdrew as practitioners for mother and mother seeks alternative representation – serious parenting case – parents did not cohabitate – child has always lived with mother – child’s time with father having been interrupted due to allegations and investigations of abuse by father of child – independent children’s lawyer’s expressed preliminary view that child reside with father – best interests of child require brief adjournment – costs.

Family Law Act 1975 (Cth), s 117.

Goode and Goode [2006] FamCA 1346; (2006) FLC 93-286.

APPLICANT: Ms Longley

RESPONDENT: Mr Stavridis

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER: Mr M Finn

FILE NUMBER: DGC 2266 of 2008

DATE DELIVERED: 8 November 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 9 November 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms L McCreadie

SOLICITOR FOR THE APPLICANT: Quintessential Lawyers

COUNSEL FOR THE RESPONDENT: Mr A Skerlj

SOLICITOR FOR THE RESPONDENT: MK Steele & Giammario

COUNSEL FOR THE INDEPENDENT CHILDREN’S

Orders

IT IS ORDERED THAT:

1.The mother’s application for an adjournment of the final hearing be granted and the final hearing of this matter be refixed to commence on Monday 28 November 2011 at 10.00 am estimated to take 5 – 10 days.

2.Any practitioners who are retained by the mother to act on her behalf in this proceeding forthwith file and serve a Notice of Address for Service.

3.By not later than 12.00 noon on 21 November 2011 the mother file and serve any further evidence upon which she relies including, but not limited to, a response to the father’s affidavit sworn on 2 November 2010.

4.By not later than 12.00 noon on 14 November 2011 the mother, and any counsel or lawyers she has retained, view the VARE tape of the child S born … 2000 and do so by arrangement with my Chambers or my Court Officer.

5.By not later than 12.00 noon on 24 November 2011 the mother cause to be filed and served any outline of case document which is different from the document which was filed and served for today’s proceedings NOTING THAT it is not permissible to rely on “all affidavits previously filed” and the mother and counsel for the mother today confined the mother to reliance on her affidavit sworn or affirmed on 27 October 2011.

6.The mother pay the costs thrown away this day as follows:-

a)of the father in the sum of $3,225; and

b)of the independent children’s lawyer in the sum of $2,834.

Nothing in this order affects the rights of the mother to seek a contribution to these costs from her previous legal representatives.

7.Until further order, and pending the final hearing, the child spend time with the father on each weekend from after school on Friday until the commencement of school on Monday with collection and return to be from and to school.

8.All documents produced pursuant to subpoena be released to all parties for viewing and photocopying solely for the purpose of these proceedings including providing expert witnesses with a copy of that material.  The notes or photocopies must not be further disseminated other than as is required for preparation of each party’s case.

9.The independent children’s lawyer ensure that Dr E, psychologist, and Mr P, family consultant, have a copy of any relevant subpoenaed documents.

10.The Court Book be marked Exhibit “C9” NOTING THAT none of the contents have been admitted into evidence or will be admitted unless tendered by a party with all other parties being given an opportunity to object.

11.Liberty is reserved to the parties to seek to have this matter mentioned in the event that an issue arises that needs to be attended to in order for the matter to be ready for trial on 28 November 2011.

12.Quintessential Lawyers and Ms McCreadie be and are hereby excused on the basis that they withdraw as practitioners for the mother.

13.The reasons for decision this day be transcribed and when settled copies be made available to the parties and any solicitors who may, by that stage, be acting for the mother.

14.That pursuant to Sections 65DA(2) and 62B the particulars and the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

AND IT IS NOTED BY THE COURT that in the event that any party fails to participate in the proceedings by not attending court or filing documents they are required to file the matter may proceed to a final determination on the final hearing date without any further input from that defaulting or non-appearing party.

IT IS NOTED that publication of this judgment under the pseudonym Longley & Stavridis is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGC 2266  of 2008

Ms Longley

Applicant

And

Mr Stavridis

Respondent

REASONS FOR JUDGMENT

ex tempore

1. These proceedings concern the child, S, born in 2000.  The final hearing is listed to start today and has been so listed since July 2011.

2. Today the mother attended court and Ms McCreadie of counsel appeared on her behalf. The mother’s solicitor did not attend court. Counsel has since withdrawn from acting on behalf of the mother and the mother now seeks an adjournment so she can have alternative legal representation for the final hearing of the parenting proceedings.  

3. The paramount consideration in determining whether the adjournment ought to be granted and for what period is the best interests of the child. That is not to say that it is the only consideration but it is the paramount consideration. Counsel for the father opposes the adjournment. Amongst other things, he submits that his client is funding the proceedings privately, is prepared to proceed with the trial which has been listed for many months and that there are significant concerns about the mother’s capacity to care for the child. However, he reluctantly concedes that it would be worse if I any trial with which I now proceed was found, on appeal, to have miscarried and a new trial be required.

4. The mother will succeed in her application for an adjournment based on the fact that her case, which is a difficult case, is manifestly unprepared and she says that she proposes to and will obtain alternative representation.  Counsel for the independent children’s lawyer concedes that the child’s interests require that his mother have an opportunity to be competently represented and submitted that the adjournment should be granted, although for the shortest possible period.

5. I do wish, however, to say something of the history of the matter because I have taken it into account in relation not only to the adjournment but also the duration of the adjournment.  These parenting proceedings came into my docket on 12 July 2011, having been in the Magellan list between 1 March 2011 and that date.  On 12 July 2011, I conducted a first day hearing and set the matter down for trial to commence on 7 November 2011, estimated to take 10 days.  The mother was represented by Taussig Cherrie Fildes, solicitors, and counsel appeared on her behalf on that day.

6. Pursuant to an order made on 24 March 2011, Mr Finn solicitor was reappointed as an independent children’s lawyer for the child; Mr Eidelson appears on his behalf.  The independent children’s lawyer is under a specific duty to take steps to minimise for the child the trauma associated with proceedings and to facilitate an agreed resolution of matters at issue in the proceedings to the extent that it is in the best interests of the child to do so. 

7. It was clearly apparent that it was a high conflict case in which there had been proceedings for almost all of the child’s life.  As best I recall, the first proceedings were within one year of his birth and related to paternity in connection with the father’s child support liability.  The first interim parenting orders were made on 2 June 2003, when he was two and a half years old.  There have been a number of professional reports, from which I discerned that the child has been seen by many professionals over his young life.

8. Dr J, psychologist, prepared a family report on 28 November 2003, and then another report three years later on 7 May 2005, seeing the family and the child in relation to the preparation of each report. 

9. Ms D, family consultant employed by the Court, prepared reports on 15 October 2008 (when the child was eight years old) and on 17 August 2010 (when the child was nearly 10 years old).  Ms D’s last report foreshadowed difficulties for the child if the conflict between his parents continued.  She expressed specific concerns about the extent to which the mother was consciously or unconsciously unable to foster a relationship between the father and the child and gave a number of concrete examples of the mother’s conduct. 

10. After the release of Ms D’s last report, there was an alleged incident at Bunnings, which led the mother to apply for a suspension of time between the father and the child.  The child was submitted to a police interview, recorded as a VARE tape on 8 January 2011. 

11. The Department of Human Services attempted to interview the child on 11 May 2011, but the child refused to be interviewed.

12. Victoria Police and DHS both found the allegations about the father to be unsubstantiated.

13. The child was assessed by Dr N in 2011. 

14. Mr P, family consultant, saw the family in September and October this year, and published his report on 11 October 2011. 

15. In addition to the above assessments, which directly affected the child, the mother has been psychiatrically assessed twice by Dr E, once in 2004 and once in 2011.   The father was assessed by Dr E in 2011.

16. There have been five notifications to the Department of Human Services, three of which were closed at intake level and two of which were not substantiated.

17. The independent children’s lawyer informs me that the child was seeing a social worker from Centre Care last year and into this year.  He saw a psychiatrist, Dr F, approximately two years ago for one or two sessions, and the mother has required the child to see Dr Y since November last year.  The child’s attendances on Dr Y was a unilateral arrangement on her part but not one which the father or the independent children’s lawyer now seek to disturb. 

18. As indicated, on 11 October, Mr P’s family report was published.  It was somewhat late, and my recollection is that a mention at which directions for trial were to be made was adjourned to permit the parties a reasonable opportunity to digest the contents of the report. 

19. The matter came before me on 20 October for specific directions for filing of documents for the trial.  It was always going to be a tight schedule.  It was not assisted the mother ceasing to instruct Taussig Cherrie Fildes just prior to the family report being published.  The mother instructed Quintessential Lawyers to act on her behalf and they retained Mr Harrison of Counsel who appeared on 20 October 2011.  Mindful that the mother’s new solicitors would have to be confident that they had all relevant court documents, certain reports were copied and  provided to Mr Harrison and my Court officer provided him with a copy of the Court file index.

20. On 20 October, I directed or ordered, inter alia, that:-

    a)the trial date be changed to 8 November 2011;

    b)information be obtained by the independent children’s lawyer in relation to the child’s attendance at school and excuses or reasons which had been provided by the mother as to his non-attendance;

    c)the mother file and serve her evidence in any amended application by 28 October and that the father do likewise by 3 November;

    d)the independent children’s lawyer express a preliminary view by not later than Friday 4 November;

    e)each party provide documents which they sought to tender to show to witnesses to my court officer for inclusion in a court book.

21. I directed that the parties do all acts and things necessary to ensure that he, she and his or her lawyers and counsel view the VARE tape of the child prior to the trial.  It confounds me why the parties had not been directed, as part of Magellan management, to obtain and view the VARE tape before the matter was even sent to me or, even more so, why none had thought to do so by their own initiative.  It is am important piece of evidence on anyone’s case. 

22. Each party was required to file an outline of case document.  I also made orders by consent expanding the child’s time with the father. 

23. The mother filed her amended application on 31 October, seeking orders for joint parental responsibility, that the child continue to live with her but spend extensive time with the father for two out of each three weekends, half school term holidays, half of the long summer school vacation and on special occasions.  There was no requirement for the time between the father and the child to be supervised; it was what could be conservatively referred to as “about turn”.  The mother sought the continued involvement on a therapeutic basis of Dr Y’s treatment, an ability for either parent to travel interstate or internationally on giving notice, and:-

    the mother had permission to relocate with the child to the [U Town] area at the conclusion of the school year 2012.

24. The mother lives in CC Town and the father lives in Suburb HH.  The mother’s proposed relocation would coincide with the child completing his primary school education at his current school but moving further away from the father’s residence to start secondary school in U Town in 2013.  That said, I understand that the parties have always lived at or about where they currently reside.  They never lived together.

25. The mother’s affidavit of evidence was affirmed on 27 October 2011 and filed on 31 October 2011.  Omitting formal parts, it is 13 paragraphs or seven pages long.  More than two pages, or 30 per cent of the document, recites the orders the mother seeks which are accessible by looking at her amended application which was filed at the same time.  If the purpose of the mother’s affidavit was to put before the Court evidence of the history of the family and to explain how she has parented the child to date it is a deficient attempt.  Not all affidavits have to be comprehensive in an historic sense.  However, if the purpose of the affidavit is to set out evidence upon which she relies in support of the orders she seeks, then my preliminary view is that it indicates that the mother does not have much to say.

26. The father filed his affidavit of evidence-in-chief before the due date;  it is 164 pages long.  The first 45 pages are narrative comprising 172 paragraphs and the balance are annexures.  A long affidavit is not necessarily a good affidavit but it is fair to say that the father and those who advise him have made an attempt to put evidence before the Court.  The father filed other affidavits with which I will deal below; he has also complied with an order that he provide documents for any court book upon which he seeks to rely.

27. As I understand it, the mother’s case is that she now realises that over the years she may have misinterpreted some of what the child said to her about his father and may have exposed the child to, and allowed the child to absorb, her negative feelings about the father.  Come what may, she now sees the benefit of the child having a meaningful relationship with the father, involving regular and frequent and unsupervised overnight time and that she believes that she and the father and the child would benefit from her and the father attending a parenting course(s).

28. As I understand it, the father’s case is that the mother has made a series of unfounded allegations against him for the sole purpose of depriving him of a meaningful relationship with the child and, in the process, caused or permitted the child to be subjected serial assessments and interrogations for the purpose of proceedings based on malicious and unfounded allegations which she knows should not and could not be substantiated. The father’s case may be characterised as one in which, at the mother’s hands, the child has been emotionally abused.  Needless to say, the father’s case will require the court to have regard to the mother’s allegations and behaviour over a significant period of time.

29. I note that the preliminary view expressed by the independent children’s lawyer late last week and filed with the Court was to the effect that the residence of the child should change so that he resides primarily with the father and sees his mother on alternate weekends, half school holidays and special days.

30. Having regard to the allegations of the father, if the matter were to proceed today it would be necessary for the mother, who is the applicant, to either give extensive evidence viva voce or for her to be cross-examined at great length.  Whilst the husband, through Mr Skerlj, may choose not to cross-examine the mother extensively it is likely that the independent children’s lawyer, who represents the best interests of the child, would have do so for the purpose of putting evidence before the Court from which I could discern his best interests.  The mother’s application for an adjournment now is somewhat irresistible but one of the benefits that can be obtained from the adjournment is that she is given a further opportunity to put relevant evidence before the Court and that can take the form, at least initially, of a response to the father’s affidavit.

31. I return to the events of today.  This morning Ms McCreadie, of counsel, appeared for the mother.  Early on, Ms McCreadie informed the Court that she had only met her client “two minutes before Court” and when I asked her why that was so Ms McCreadie responded that she received the brief last weekend with no contact details for her client.  It transpired that her client’s correct telephone number appears on the first page of annexure “A” to the only affidavit upon which the mother relies.  It also transpired from the mother that the mother was requested only to be at Court at 10.30 am today in anticipation of the final hearing commencing at 11 am. As I recall, the matter commenced prior to 11 am today but I was not asked to stand the matter down in consideration of it being called on early.

32. Ms McCreadie informed the Court that her client was abandoning any application to relocate the child to U Town.  I note that her amending application just filed and her affidavit in support seeks a relocation. 

33. Ms McCreadie confirmed that she had accepted the brief and been content with an allowance of conference for only 30 minutes before the case commenced because she had quite “comprehensive discussions” with her instructing solicitor last week by telephone and only needed to clarify a couple of issues with the mother in relation to the opening and was “not going to take a great a deal of time”.  Ms McCreadie confirmed that yesterday she attended Court to view the VARE tape and inspected subpoenaed material.  When the mother was heard on the issue of an adjournment she confirmed that she had only just met Ms McCreadie;  she said that she had expected to have at least a day with counsel to discuss the matter but had never been advised of an appointment time;  I did not hear from her that she sought one either.  The mother says that at approximately 9 am this morning she received a call from her solicitors asking her to meet counsel at 10.30 am today in the precincts of the Court but she was already on her way.

1. I asked Ms McCreadie how long she wanted the matter stood down so as to be able to get instructions from her client and she said “half an hour” for the purpose of “reality testing her client’s case” or words to that effect.  I stood the matter down until 2.15 pm.  In doing so, I was mindful that the child’s best interests require that his mother have the opportunity to be appropriately represented in the proceedings.

2. At 2.15 pm Ms McCreadie said that she was unable to continue to act for the mother due to ethical constraints and that during the adjournment she had consulted with three senior barristers to confirm her position.  She said that her solicitor was similarly unable to continue to act and they both sought leave to withdraw.  Ms McCreadie explained that the non-attendance of her instructing solicitor at Court was because her instructing solicitor is not in the office today due to family issues involving one of her own children and some health concerns.  The mother said that she wanted an adjournment so that she could see another lawyer and retain other representation.

3. I stood the matter down (for a second time) so the mother could obtain details of alternative representation.  I took the view that the matter would have to be adjourned for only as long as was necessary for the mother to obtain a new lawyer but that it was unlikely to be in the child’s best interests that the adjournment be granted for any greater period than was necessary.

4. Upon resuming in court, the mother informed the Court that she had an appointment on Thursday, 10 November 2011 to see Kathy Jeffries at Robin Harrison & Associates and that she would take steps to transfer her entitlement to legal aid to Robin Harrison & Associates.  She says, though, if legal aid is not available to her she has been offered assistance by her neighbour “Mr SS” who will pay her legal costs;  my recollection is that on an earlier mention date the mother’s neighbour was funding the retainer of Taussig Cherrie Fildes to act on behalf of the mother.

5. Whilst the mother was represented, the parties informed the court of the evidence upon which they relied.  I make a note of those details here because, subject to subsequent advice to the contrary, each party will be entitled to rely on how each other party to the proceeding said they would run his/her case.

6. Ms McCreadie, then for the applicant mother, relied only upon the mother’s affidavit affirmed on 27 October 2011 and the affidavit of the mother’s boyfriend, Mr C.  As I said, the applicant for relocation at the end of 2012 was specifically abandoned. 

7. The respondent father, through Mr Skerlj, said the father would rely upon the following evidence:-

   a)His affidavit sworn 2 November 2011;

   b)Affidavit of Mr L, father’s housemate, sworn 2 November 2011;

   c)Affidavit of Ms K, father’s girlfriend, affirmed 2 November 2011;

   d)Affidavit of Ms O, father’s sister, affirmed 2 November 2011; and

   e)Affidavit of Mr O, father’s brother in law, affirmed 2 November 2011.

8. The materials and evidence arranged by the independent children’s lawyer were as follows:-

   a)Family Report dated 15 October 2008 by Ms D, Regulation 7 family consultant in relation to proceedings being pending in the Federal Magistrate’s Court[1];

   b)Family Report dated 17 August 2010 by Ms D, Regulation 7 family consultant in relation to proceedings being pending in the Federal Magistrate’s Court[2];

   c)Report dated 26 March 2011 from Sexual Offences and Child Abuse Investigation Team SOCIT, Diamond Creek in relation to alleged assault(s) of the child by the father in November 2010[3];

   d)Magellan Report from Department of Health, Cheltenham, dated 11 May 2011[4];

   e)Report by Dr N, consultant forensic psychiatrist, of his assessment of the child dated 7 July 2011[5];

   f)Psychiatric Assessment of the parents by Dr E, consultant psychiatrist, dated 10 October 2011[6];

   g)Affidavit of Dr E sworn 6 May 2004 annexing his psychiatric assessment of the mother dated 30 January 2004[7];

   h)Section 62 G Family Report prepared by family consultant, Mr P, dated 11 October 2011[8].

   [1] Exhibit “C1”.

   [2] Exhibit “C2”.

   [3] Exhibit “C3”.

   [4] Exhibit “C4”.

   [5] Exhibit “C5”.

   [6] Exhibit “C6”.

   [7] Exhibit “C7”.

   [8] Exhibit “C8”.

9. The father and the mother (through her then counsel) confirmed that neither requires Ms D, the author of the SOCIT report, the author of the Magellan report, or Dr N, to be available for cross-examination. 

10. The independent children’s lawyer seeks to obtain some viva voce evidence from Dr E, and the other parties may well cross-examine him.  All parties, as I understand it, require Mr P, family consultant, for cross-examination. 

11. All of the above documents relied upon by the independent children’s lawyer have been allocated an exhibit number and will be retained pending the adjourned date.  They documents will keep the exhibit numbers for the final hearing.

12. The husband’s practitioners provided to the Court documents for inclusion in a court book.  I am not aware of any other party to the proceedings having done so.  What I have is a folder with documents numbered 1 to 89 that has been copied and given to each party to the proceeding.  There should also be an extra copy in the witness box.  The parties can add to that Court book between now and the final hearing.  I will not read anything in the Court book without it being specifically tendered.  It is merely there and organised in that way for ease of reference.  It is an exhibit[9].

    [9] Exhibit “C9”.

13. So, returning to the mother’s application for an adjournment.  Reluctantly, the counsel for the father concedes that the matter must be adjourned but seeks the earliest final hearing date that is possible.  That is, with respect, a sensible position.

14. The independent children’s lawyer accepts that the matter must be adjourned and says that it is the child’s best interests that the mother be given an opportunity to obtain legal representation.  There was some discussion between Mr Eidelson and myself on this point.  There is a distinction, which the mother must now appreciate, between her being given an opportunity to be represented and actually being represented, or being represented effectively and competently.

15. I am satisfied that between now and 28 November the mother has an adequate opportunity to obtain representation, particularly in light of her having made an appointment to see a solicitor at 3 pm this Thursday.  The mother and Ms McCreadie each confirmed that the further solicitor is aware that a final hearing is imminent.  Whether or not the mother avails herself of the opportunity to obtain further representation, is a matter that is entirely up to her.  Whether she chooses lawyers who will skilfully present her case is a matter for her.  Absent some unforeseen circumstance, the parties should assume that this parenting case will proceed on 28 November.  The mother may at that stage, of course, represent herself.  That is not an uncommon phenomenon in this Court.  The mother does need to recognise that, whilst the independent children’s lawyer is representing the child’s interests, if she acts for herself, neither the independent children’s lawyer’s nor his counsel will assist her to argue her case.  In fact, the independent children lawyer’s preliminary view is that the child should reside with the father.  The independent children’s lawyer will not act on her behalf nor give her advice, notwithstanding that he represents the child’s best interests.  If the mother is to act for herself, she will need to be like any other self represented litigant and familiarise herself with court procedures, the basis upon which the court makes decisions in children’s cases and be in a position to argue her case.

16. Counsel for the father made an oral application that between now and the adjourned date the child should reside with the father, who will take him to school each day.  It is an urgent interim change of the parent with whom the child lives.  The father resides some 40 to 45 minutes away from the child’s school.  It was not specified, but I gather that the child would be permitted to see the mother on some basis, probably on the weekends.  The father’s application was based in part upon paragraph 6 of the recommendations in Dr E’s most recent report.[10]  In that Dr E opines:-

    Noting the Family Court reports and based upon my own assessments of the parents, I continue to have significant reservations as to [the child’s] wellbeing whilst in the care of his mother with particular reference to her ability to allow and foster a relationship between [the child] and his father.  This is, of course, an opinion made in the absence of an assessment of [the child] himself; in that respect, I note the DHS assessment dated 11 May 2011, in which it is noted that the police investigation is closed, and the department informed that [the child] and [Ms Longley] both provided inconsistent information which raised issues as to the validity of the allegations.  It was further alleged that [Ms Longley] has not been supportive or encouraging of the relationship between [the child] and his father.

    [10] Exhibit “C6”.

17. The reports of Dr E have not been tested in cross-examination, although I recognise his reference to the DHS assessment as being correct – that is, that reservations have been expressed about the mother’s parenting for a considerable time and at least from May 2011. 

18. Dr E’s reference to the previous family reports would include that of Ms D, who expressed significant concern about matters which the child had mentioned to her which appeared to follow a strong lead by the mother.  That includes the essay entitled “The Boy who Hates his Father”.  The short essay is annexed to the father’s affidavit but was originally referred to Ms D by the mother at the assessment interviews for Ms D’s report of October 2010 and eventually handed to Ms D by the child when Ms D interviewed him.  It is neatly typed and formatted.  It reads:-

THE BOY WHO HATED HIS FATHER

There is a boy named the [S] his family split up so he always had to swap all the time.  He more like his Mum because she was like him.  [The child’s] dad hated his mum so he probably didn’t like [the child] very much either but [the child] didn’t care because let’s just say that he hated his dad.  [The child] always fought to stay with his mum all the time.  His dad always forced him to play soccer but that was because he used to like playing soccer it was 2007 when he liked playing soccer but that is the past it is 2010.  He always promised [the child] that he will sign [the child] out of soccer by the end of the year but he always resigned [the child] to the next year.  But that wasn’t all he was selfish, mean bitch.  [The child’s] dad is always getting into fights with his family.  [The child’s] cousins [AE] and [LL] call his dad Uncle fungus.  Once the child’s auntie told his dad off because he hit [AE] in the tummy and pulled her hair, [AE] cried.  [The child] hated his dad even more.  Last but not least [the child’s] dad on father’s day were at his yaya’s (grandma in Greek) house with his Auntie, Uncle and his cousins for lunch when his dad started a fight with everyone so he left and stayed at home by himself only to come and get some food and take it back to his house.  He left the child at yayas house but [the child] was happy because his dad wasn’t there.  When [the child] plays with his friends his dad pulls him away from them and says stop being silly which makes him feel sad and angry because he was having fun.  [The child] gets very nervous when his dad tells him off and embarrassed when he smacks his bum in front of them.  When the child goes to [the beach] for the holidays [the child] cries to go back to his mum’s house.  [The child’s] dad promises him that he can go home the next day but when the next day comes he doesn’t let him.  Every time [the child] tries to tell his dad how he feels his dad says “that’s your mother talking” this makes [the child] angry and hate him even more and more because he doesn’t listen to him.  [The child] wishes his dad would die and thinks about killing him.  [The child] wants to torture his dad while killing him very slowly.  Now [the child] is skipping school on the days his Dad picked him up so he won’t go to his dads.  [The child] has been happier ever since.

1. In her last report, Ms D expressed some doubts as to whether the above essay was written by the child, as alleged by the mother, or by the mother herself.  At the hearing on 20 October 2011, counsel for the independent children’s lawyer (then Mr Hoult of counsel) accepted that the independent children’s lawyer should be in a position at the final hearing to adduce evidence of the child’s written expression as at 2010 with a view making a submission as to whether the child could have written the essay himself.  It does appear to be well constructed, well punctuated and employ good grammar for a child in Year 4 or 5 unless he is exceptionally clever.  It is also consistently written in the third person.

2. I make no findings today in relation to substantive issues. All of the evidence is untested but it is apparent that there are numerous allegations and counter allegations to be considered and issues to be tried.

3. In the course of making submissions in support of an urgent interim change of residence, counsel for the father was going to proceed to refer to some notes of Dr Y, who is the child’s therapist.  I asked him to reflect on that course prior to doing so. 

4. This is a worrying case.  It is an extremely serious case.  But my first impressions are that it is not a case which requires an interim change of residence of the child for the next 21 days before the matter is again listed for final hearing.  Upon the independent children’s lawyer making known to counsel for the father and the father that he, the independent children’s lawyer, does not support any urgent interim change, the father did not press his application.  It was not necessary for me to ask the mother to respond or for the independent children’s lawyer to make submissions in opposition to the application.

5. Had I been required to determine the father’s oral application, I would have done so in accordance with the legislative pathway set out in Goode’s case[11] having first considered the practicality or otherwise of shared care and substantial or significant time.  However, as the father did not press the application after a certain point, I will merely not grant leave for him to make the application orally.  It follows that the father or any other party can make a further application for interim orders at anytime in the future.

   [11] Goode and Goode [2006] FamCA 1346; (2006) FLC 93-286

6. It is agreed that over the next 21 days, that the child spend all of the weekend time with his father he will be going to school for the rest of the time and returning to his mother’s home, which is close by the school, each evening.

7. The mother now realises the importance of the child seeing the father regularly.

8. The father seeks his costs thrown away today in the sum of $5,500, but on scale he concedes that they would be recoverable only to an extent of somewhere in the vicinity of $3,225.  Counsel for the father did not press an order for indemnity costs.  The quantification of costs at $3,225 includes something close to the highest rate for junior counsel.

9. Likewise, the independent children’s lawyer seeks costs.  His counsel confirms that the independent children’s lawyer is under a duty to seek to recover his costs thrown away today, which amount to $2,834. 

10. The mother says she has not got any money and cannot pay, and she is very sorry that the proceedings have had to be adjourned.  In short, she opposes the order for costs. 

11. Under section 117(1) each party has to bear their own costs unless under section 117(2) there are circumstances which I find justify a departure from the general rule and am satisfied that one party should be responsible for, and pay, the costs of another.

12. I take into account the matters set out in section 117(2A).  The first is the financial circumstances of the parties to the proceedings.  The mother says she hasn’t got any money to pay costs; the father is funding these proceedings privately; the mother doesn’t have details about his financial circumstances but doesn’t point to anything which remotely satisfies me that he can afford incur costs for a wasted day in Court. 

13. The mother is in receipt of legal assistance.  I do not know whether that extends to Victoria Legal Aid funding another party’s costs in the conduct of these proceedings.

14. The independent children’s lawyer is of course funded by Victoria Legal Aid as well.  That does not mean that his costs do not have to be borne by someone.  Legal Aid funds are scarce; assistance extended to one case means that there is less legal aid to go to other cases.  It is a matter of protecting the public purse, or that part of it which is allocated to providing legal representation to litigants who qualify for it.

15. In any costs application there may be one matter which overwhelmingly requires that one party pay the other’s costs.  In this case, I find that it is that the mother has come to Court apparently unprepared and is now without counsel and a solicitor, and the matter cannot proceed.  It is open to the mother to now act for herself and, if she did, the matter proceed this afternoon with evidence starting tomorrow and the remainder of the trial to run this week and next week.  However, the mother applies for and has obtained an adjournment because she wants to get alternative legal representation.  Therefore, the other two parties have incurred costs which are wasted.  So, whist the mother might think that she is in an unfortunate situation and can’t afford to pay anyone else’s costs, she makes no submission as to why the other parties should be out of pocket.

16. I am satisfied that the mother ought to pay the costs of the father and the independent children’s lawyer thrown away today.  I am satisfied that the quantum of costs claimed is reasonable.

17. Nothing in this determination of costs affects whatever rights the mother may have to seek to recover from her previous solicitors (Quintessential Lawyers) or counsel or to seek that they contribute to her liability to do so.  The mother, or any other party for that matter, may provide these reasons for decision to Victorian Legal Aid without contravening the prohibition about publication.

18. I direct that these reasons be transcribed urgently and, when transcribed, that a copy be sent by email to each party to the proceeding (or their practitioner) and, in the mother’s case, to Quintessential Lawyers as well as any other practitioner who the mother may advise my associate then acts or may act on her behalf, but who has not had sufficient time to file a Notice of Address for Service.  I note that the mother’s appointment with a new solicitor is 3 pm this Thursday and it is my intention that these reasons be published by then.

19. Previously, provision was made for preparation of an addendum report by the family consultant, Mr P, specifically to follow the release of Dr E’s report on 11 October 2011.  There has not been any addendum report prepared to my knowledge.  If one is to be prepared, it would be of assistance to the court for the family consultant to be aware of how matters have progressed and what the mother’s case is now.  The independent children’s lawyer will facilitate provision of extra documents and affidavits to the family consultant in a timely manner.

I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 8 November 2011.

Associate:

Date:  10 November 2011