Materanzi and Suskain

[2011] FamCA 151

FAMILY COURT OF AUSTRALIA

MATERANZI & SUSKAIN [2011] FamCA 151

FAMILY LAW – PRACTICE AND PROCEDURE - APPLICATION FOR ADJOURNMENT OF FINAL HEARING –solicitors for the mother ceased to act for her within days of the final hearing – barrister for the mother unable to represent her and seeking leave to withdraw – NSW Bar Association providing barrister at short notice – mother given grant of legal aid – mother has not filed any updated affidavit material – father borrowed funds to pay for legal representation – trial able to be listed for final hearing before another Judge promptly – application granted

APPLICANT: Mr Materanzi

RESPONDENT: Ms Suskain

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: SYC 776 of 2010

DATE DELIVERED: 9 February 2011

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Forrest J

HEARING DATE: 9 February 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Gould

SOLICITOR FOR THE APPLICANT: Karras Partners

COUNSEL FOR THE RESPONDENT: Mr White

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Wearne

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders

1. The oral application by the Mother for the trial to be adjourned is granted.

2. The matter be listed for final hearing before Stevenson J for five days commencing 21 March 2011.

3. By close of business on Friday 4 March 2011 the Mother is to file and serve all of her evidence that she intends to rely upon for the final hearing.

4. The Father shall have until Friday 11 March 2011 to file and serve any further affidavit of evidence that he considers appropriate to file in respect of matters in reply to the Mother’s evidence and/or fresh matters of evidence arising since the filing of his evidence in chief.

5. If the Mother has not engaged solicitors who have filed a notice of address for service by 18 February 2011, Mr O’Dowd, the Independent Children’s Lawyer, shall request the grants division of the New South Wales Legal Aid Commission to allocate to the Mother a family law solicitor from the Legal Aid office panel.

6. The Father’s application for his costs thrown away by the adjournment of the final hearing, to be paid on an indemnity basis jointly and severally by the Mother and Ms F of F Law Firm, be adjourned to 9.00 am on Wednesday 16 February 2011 and that any affidavit to be relied upon by the Mother or Ms F in relation to the costs application be filed and served by 4.00 pm on Monday 14 February 2011.

7. At hearing of the costs application, Ms F be given the opportunity to show cause why this Court should not refer the matter to the Law Society of New South Wales in respect of:

   a.     The circumstances under which the solicitor/client retainer between F Law Firm and the Mother was terminated;

   b.     Ms F’s failure to comply with this Court’s order made 8 February 2011 requiring her to produce certain documents to Mr White by Wednesday 9.30am on 9 February 2011.

8. By 4.00 pm on Monday 14 February 2011 the Mother provide to the Father’s Legal Representative a copy of all emails that were viewed by this Court on the computer and television monitors in this courtroom this morning Wednesday 9 February 2011.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 776 of 2010

Mr Materanzi

Applicant

And

Ms Suskain

Respondent

REASONS FOR JUDGMENT

1. On 17 November 2006, on what I understand was day five of a contested parenting hearing between the father, Mr Materanzi, and the mother, Ms Suskain, in respect of the parenting of their daughter, H, born in April 2004, the father and the mother agreed to a set of very comprehensive orders outlining the arrangements between them in respect of the parenting of H. 

2. On 9 February 2010, the father filed a fresh application initiating proceedings in this registry, in which he sought orders on a final basis, at least, that the child, H, live with him and that he have sole parental responsibility in respect of that child, and in which he sought orders that the child, H, spend such time with her mother as this Court may determine.  That application was first returned before this Court on 10 March 2010 when procedural directions were made.  Further procedural directions were made on 6, 7 and 13 April 2010. 

3. On 27 May 2010, the respondent mother filed her response and a notice of child abuse in which she raises allegations that young H was sexually abused by the father in or around June of 2009.  I note also that there are other allegations made that young H was sexually abused by the father at an earlier date in 2007.  On 31 May 2010, Judicial Registrar Johnston, as he then was, in this Court, put in place orders by consent that provided for H to spend limited daytime time with her father in a supervised arrangement, supervised by the father’s mother, who gave an undertaking to the Court in the usual form for someone in a family relationship with a father who is to be supervisor in such circumstances. 

4. On 2 June 2010, the child, H, resumed spending time with her father in accordance with those orders after a period of something like eight, or nine or ten months where she had not been seeing him at all.  On 8 June 2010, there were directions made by the Magellan Registrar in this Court and, on 13 August 2010, F Law Firm filed a notice of address for service as solicitors acting on behalf of the mother. 

5. On 1 September 2010, court orders were made in respect of the appointment of Dr R as the single expert.  Dr R is, as I understand from her report, a child psychiatrist, and has subsequently made a report in respect of the matter.  Significantly, I note at this stage, included ultimately in the recommendations of Dr R is a recommendation that the child, H, move from her mother’s principal care to her father’s principal care. 

6. I have not yet noted, but note now, that an Independent Children’s Lawyer was appointed at some point in the process, and that role is filled by Mr O’Dowd of the New South Wales Legal Aid Office. 

7. On 13 December 2010, there was a directions hearing convened by the Magellan Registrar of this Court, Ms George.  In attendance on that telephone linked up directions hearing, from the Court’s records, were Ms Graves of Counsel appearing for the mother, apparently instructed by F Law Firm.  There was a solicitor from the solicitors representing the father, and the Independent Children’s Lawyer.  On that date, as I read the records, the matter was listed for final hearing in this Court for five days commencing on Monday, 7 February 2011.  On that date, that is, 13 December 2010, it appears from what I see on the file that the Registrar made directions for the filing of evidence-in-chief that was to be relied upon by the parties by 28 January 2011.  Apparently, on 15 December 2010, that was amended so that the evidence-in-chief was to be filed by the parties by 27 January 2011. 

8. Then the matter was listed for a further directions hearing, presumably some sort of compliance hearing.  Firstly, just let me say this.  On the Court’s correspondence file, there is a letter from F Law Firm, the solicitors representing the mother, which bears the date, 7 January 2011, in which they raise questions in respect of the attendance in person of the expert, Dr R, rather than what was, at the time, being apparently proposed or considered, namely that she would give her evidence by phone.  Nothing was said in that letter to indicate, from F Law Firm’s perspective, that the matter would not be ready for trial in accordance with the previously referred to directions at all. 

9. On 27 January 2011, there was another directions hearing.  That one was not attended by the mother’s lawyers.  It was again a telephone hook-up, but Registrar George explains the non-attendance of the mother’s lawyers apparently, or possibly, by reference to the fact that she had only sent out the notice by email some two days prior, that it was to take place.  Another directions hearing was then scheduled for Monday, 31 January 2011. 

10. On that day, the directions hearing took place by telephone and Ms Graves of Counsel attended by phone on that day on the instructions of F Law Firm, appearing for the mother.  Ms Graves of Counsel informed Registrar George apparently that her instructing solicitor was away on holidays and that they may be in a position to file the affidavits of evidence-in-chief by Friday, 4 February. 

11. According to the notes taken by Registrar George that are on the Court file, no indication was given by Ms Graves, on behalf of F Law Firm or the mother, that there was any other difficulty, other than the fact that the solicitor was away on holidays.  I note that Registrar George also made a note in respect of the notes she took on 31 January, saying that at no time after 13 December and before that date, 31 January, had there been any representation made to the Court by F Law Firm that they would be unable to comply with the directions.  The father, of course, readied his case for trial and, I understand, complied with the directions for the filing of his evidence.

12. On Friday, 4 January 2011, F Law Firm filed a notice of ceasing to act.  Now, that is clearly only less than one working day before the commencement of the trial.  On Monday morning, 7 January, when this matter was called on, Ms Graves appeared and sought leave to withdraw.  I have already been through, in reasons I gave yesterday, some of the issues, and do not feel the need to do that any further.  Ms Graves was given leave to withdraw on the morning of Tuesday, 8 February, when the matter still had not yet commenced. 

13. The mother had indicated on the morning of Monday, 7 February, that she had only very recently become aware of the fact that she had been required by directions to file affidavits of evidence-in-chief in the proceedings on or before 27 January.  In fact, effectively, representing herself, she informed the Court from the bar table that it was 22 January when she first learned that the affidavits had to be filed by 27 January, if I recall what she said correctly.  Of course, the mother indicated at that point in time that she was not ready, therefore, for the matter to proceed and was seeking an adjournment.  That caused me, of course, and others involved, particularly the father and his legal representatives and, indeed, the Independent Children’s Lawyer and his briefed advocate, some serious consternation. 

14. Through the good offices of, firstly, Mr Gould, and then, secondly, what I can only understand was the administrative office of the New South Wales Bar Association, another barrister, Mr Robert White, attended at the court, effectively at my request, not directed at him, but directed through Mr Gould to the Bar Association in the course of the afternoon of Tuesday, 8 February, and, to his eternal credit, took up the cudgels of acting on behalf of the mother. 

15. After conferring briefly with her and taking instructions, Mr White indicated that he pressed her application for the adjournment.  He indicated that he needed time overnight to prepare that application which, in the circumstances, again reluctantly, I must say, I was prepared to give him.  I must say that Mr Gould, on behalf of the father, has, from the outset of when the adjournment application was made, firstly, by the mother, and again yesterday, indicated on behalf of the father that he opposed the adjournment application. I do not say that in a critical sense. 

16. I adjourned the matter to this morning at 10.00 am, and when the matter was recalled on this morning Mr White pressed the application for the adjournment and filed an affidavit sworn by the mother on yesterday’s date, 8 February 2010, which sets out very briefly her evidence in respect of the matter that she started to tell me about on Monday morning in respect of when she first became aware that her evidence-in-chief had to be filed by 27 January.  Attached to that affidavit were some emails from her Hotmail account going between the mother and Ms F, her solicitor, and, indeed, Ms Heather Graves, the barrister who had formerly been representing the mother. 

17. It transpired that, apparently, according to Mr White, because of printing difficulties, not all of the relevant emails that were on the Hotmail account had been able to be printed off.  The Court was able, with the assistance of its technology, to access the Hotmail account of the mother, and the relevant email communications were brought up on the Court’s internal monitors.  The mother, and then her counsel, Mr White, accessed the Hotmail account of the mother and the relevant emails.  That ultimately supplemented, it turned out, the emails that had been able to be printed out. 

18. I must say, at this stage I digress to refer to a very, very important point, in my view, in my determination in the exercise of my discretion in respect of this adjournment application.  The mother, although an Australian citizen, I believe, or, if not correct there, at least one having permanent residency in this country, was born in Country 1, South America.  I understand, therefore, that Spanish is her first language.  She suffers the unfortunate physical disability of having a very serious hearing loss.  I have seen something that suggests it is not quite profound hearing loss, which I understand probably means total hearing loss, but something not far short thereof. 

19. Further, unfortunately for the mother, it appears that she has not been able, to this point in her life – I understand the hearing loss is one suffered in her adult life, not something that she was born with – has not been able to master what I understand is the most efficient form of communication for people who have serious hearing loss, which is, I think, referred to in this country as Auslan or signing. She is unable to communicate with others through signing or a signing interpreter.  She has some capacity to lip-read, I understand, although the extent of her capacity is somewhat in doubt and in dispute in this case, but, for the moment, for this decision, it does not matter. 

20. She has, as it seems clear to me, been principally communicating, through the course of this hearing, at least, through a Spanish interpreter, or Spanish interpreters, engaged by the Court, who, I understand, write everything down for her to be able to read.  I am not sure if that is done in Spanish or English, but it does not matter. Indeed, when the mother does attempt to communicate through speech, she, of course, is able to do that in Spanish and some limited English but, with due respect to her, and not simply because of her accent but because, no doubt, of her hearing loss, I can only conclude, her pronunciation of the English language is somewhat difficult to understand, although not completely impossible.  So it seems that her ability to communicate, or to have been able to communicate with her solicitors, has principally been through written form of communication. 

21. Mr White advances, effectively, two bases for the adjournment application on this, what is now the afternoon of day three of this matter that was set for five days.  Firstly, he relies upon the fact that, and if I can put it in neutral terms this way, the solicitor/client relationship between the mother and Ms F was terminated in an untimely fashion and in a fashion that was grossly unfair to the mother in the circumstances of the preparation for this case, particularly given her disabilities and language issues that I have previously referred to.  I will return to that in a moment, discussing in more detail the evidence that supports that submission. 

22. The second limb of his application for an adjournment is that, given the fact that he only just came into the matter yesterday afternoon, without even, apparently, when he arrived here, fully comprehending the significance of the issues that faced him, after having become so familiar with the issues that faced him and, indeed, faced with the communication problems with his client in the absence of a solicitor providing any instructions to him as well, he submitted that he would not be able to, in all the circumstances, properly present her case at this point if the matter was to proceed – when I say not properly present her case, no reflection on his abilities, of course, but not able to do proper justice to her cause in the circumstances. 

23. In respect of the first limb, the affidavit evidence that was put before me this morning by Mr White, being the affidavit of his client previously referred to, says, in effect, that the first the mother knew that she had to file additional affidavits of evidence in the matter by 27 January was on 22 January.  As I recall the evidence, including the emails I have seen, I have no reason, at this point in time, not to accept that evidence as truthful.  Indeed, the documentary evidence I have seen supports the assertion made by the mother in that regard. 

24. Now, it is to be remembered that, I understand, Ms F was on leave for a period of time and out of the office up until around 31 January.  Apparently the Registrar was told on 31 January that Ms F was away, but it seems that Ms F was sending email communication to the mother that same day.  Whether that was wherever she was away from the office or from the office is unclear, although there are emails that I have seen that were going backwards and forwards between the three relevant people – that is, the mother, Ms Graves and Ms F, at all hours of the night on the night from 31 January to 1 February. 

25. But although the mother learned on 22 January of the affidavit deadline, there is no suggestion that she was in a position to be able to give instructions to a solicitor to prepare them because of the absence of her solicitor on leave at the time.  The first she was contacted, on the evidence I have seen, by her solicitors asking her to come in and give them the instructions for the relevant affidavits was by email on 31 January 2011 and, if I recall correctly, late in the night – that is, sometime around midnight, which is, in itself, an extraordinary thing, to be expecting the mother to be receiving and answering emails at that time of the night. 

26. Now, the mother then, from the emails I have seen, sent an email to Ms F at 11.21 am on Tuesday, 1 February, in which she was asking for clarification about whether it was 4.30 that day or 4.30 the next day that she was to come in.  I shall just set the scene for that. There had been an email exchange the night before where Ms F had asked the mother to come in the next day to see her to start the affidavit preparation process, already out of time, of course, and the mother had written and said she could come in after 9.30 am, after her daughter H had been taken to school. 

27. Then there was an email back from Ms F saying, “No, no, after 4.30 pm you can come and see me,” and she said, “tomorrow”, and that was an email that came after midnight, I understand.  Quite properly, the mother, apparently confused by whether the “tomorrow” meant Tuesday or Wednesday, sent an email back at 11.20 am on the Tuesday to Ms F asking, in the first instance, for her to clarify whether she meant 4.30 that day or 4.30 the next day. 

28. Now, that same email contained other material, the content of which I do not consider relevant at this point in time, but which the mother cc’d to other parties. One person, namely a Ms E, who, I heard yesterday, was a friend of hers, and just at the moment the email address of the other person escapes me, but there was another person.  I do not have a copy of the email.  It was not in the attachment, but we saw it on the screen and I think I read it out into the record earlier when it was on the screen.

29. Then, at 17.39 that day, just before 20 minutes to 6.00 pm on Tuesday, 1 February 2011, Ms F sent what appears to me to be a remarkable email.  It is remarkable in the nature of its content, in which Ms F asserted to the mother that by having sent the email I just previously referred to earlier that day off to other parties, who Ms F described as “third parties”, somehow the mother had breached solicitor/client privilege and, as a consequence, Ms F was terminating their solicitor/client relationship, terminating her retainer. 

1. If I recall correctly, it also referred to the fact that, as Ms Graves was instructed by her, the relationship between the client, the mother, and Ms Graves, as her counsel, was also terminated as a result of the alleged breach of solicitor/client privilege.  I do not understand the assertion that copying in a third person on an email that was sent by the mother to Ms F, in any way breaches solicitor and client privilege when, indeed, my understanding of the law is that the privilege pertains to the client.  I do not know whether Ms F just misunderstands or, at the point in time that she wrote the email, misunderstood the nature of solicitor/client privilege or whether there was some other reason why she said what she said. 

2. In any event, quite surprised, no doubt, and somewhat shocked, it appears, from the subsequent email communication the mother sent to Ms F, the mother sought some clarification and it appears was told she could, effectively, collect the files.  That was late Tuesday evening.  There is no other email communication from that day between Ms F and the mother, save for one, I think, where the mother asked could she come in and see her, and I think there was a reference for an email back from Ms F to the mother saying she could, and there is no evidence about what otherwise then happened. 

3. In paragraph 13 of her affidavit that was filed this morning and was relied upon by the mother, the mother says that she did not become aware until 3 February that Ms Graves had previously informed the court on 13 December and 31 January that “further affidavits would be filed by me on 27 January and 4 February”.  She says neither Ms Graves nor Ms F ever told her what had happened at the directions hearing on 13 December or on 31 January, and I have got no reason at this stage not to accept that as truthful evidence. 

4. Now, in all of these circumstances, it is not hard to determine that for a normal, able-bodied, able-hearing, English as a first language-speaking Australian citizen, being unceremoniously sacked as a client by one’s solicitor and counsel, on what effectively was just over three working days out from a five-day Magellan-listed hearing in the Family Court in which you raise sexual abuse allegations against your former partner and which a child psychiatrist single expert retained by the offices of the Independent Children’s Lawyer suggests that the child perhaps should be moved from your principal possession to the principal possession of the father, would be a rather disturbing set of circumstances.

5. One can therefore only begin to imagine how disturbing such circumstances would be to the mother in this case, who is far from meeting the characteristics of the description I just gave.  The other aspect that I have not mentioned yet is that I was also told yesterday, day 2 of the matter, that, indeed, investigations had determined that a grant of Legal Aid had not even been obtained by F Law Firm for the conduct of the trial.  Now, it seems to me, in all of the circumstances, that it would be grossly unfair to force the mother to trial today. 

6. Now, on the other hand, Mr Gould made the submission, on behalf of the father, that the matter should proceed.  Now, he rightfully points out that his client has borrowed money to pay for these five-day proceedings and, no doubt, that has caused him enormous expense.  Having only recently come to the bench, I have some idea – some fairly good idea – what sort of enormous expense that has caused him, and he, being properly prepared for the case, is perfectly entitled to have an expectation that the matter proceed in accordance with its directions.  Indeed, there is every indication that, in the best interests of H – there is no doubt about this, it is axiomatic that the child’s best interests are generally served by having parental dispute litigation about that child finalised as soon as can possibly be done. 

7. There is some merit in that submission.  Mr Gould submitted that if I allowed the mother to rely on her interim affidavits, as I have suggested, and the interim affidavit of Mr P, her husband, as I have suggested could be done during the course of the last two days, supplemented by some oral evidence-in-chief, that justice could still be done.  He suggested that Mr White appears capable of being able to pull the strings of this case together pretty quickly, and I have no doubt that Mr White has some capacities in that regard. 

8. Ms Wearne, appearing for the Independent Children’s Lawyer, supports the mother’s application for an adjournment in the circumstances, and I think it is appropriate to say that one of the main points of her submission was that if the matter can be brought back on fairly quickly and, indeed, if some other consideration can be given to the parenting arrangements and time that the child spends with the father in the interim, that it is properly the course to take to adjourn the matter in the circumstances of the difficulties faced by the mother in the immediate circumstances that were presented to her in the last two weeks. 

9. Now, I have not approached this issue lightly and with ease.  I have read in the material, including in the material that has been read as evidence in the case in the father’s evidence, that he perceives the mother to be a person who deliberately takes advantage of her circumstances, her disability, and attempts to use it to achieve delays and the like.  There may be merit in that evidence. 

10. It might be true, but I am just not able to make that finding today.  I have been concerned, I must say, about evidence I have seen about, and actually have experienced myself, the mother’s capacity to be punctual – a couple of times in the last three days she has not even been able to get here to court on time – and I have read with serious consternation the number of days that her daughter has missed school in the last two years and the number of days that she has been late for school, and that is interesting.  There is no evidence about the circumstances, but that troubles me, and it is a matter that I would think the mother is going to need to address in the final hearing. 

11. And so, as I say, there may be some merit in the father’s position in that regard.  However, ultimately, having considered all of those things, I do determine that it would not be appropriate, in the circumstances, to press the mother to trial.  Other things I have considered are the expense that this has caused, not only the father, but the court, at times when its resources are limited – the pushing out of a matter and taking up some time that other litigants would be using. 

12. Nevertheless, I consider it appropriate, in all the circumstances, and having seen the evidence that I have seen, to adjourn the matter.  I am satisfied as well that one of the reasons why an adjournment is appropriate is that it can be brought back on very quickly.  Stevenson J and her associate have made it clear to me that the matter can be listed for a five day hearing, the same five days it was listed for hearing this time around.  I am a little bit concerned about whether it will finish in five days, given the communication issues, but her Honour has indicated that five days is available for her to hear the matter commencing on 21 March 2011. 

13. Accordingly, I accede to the mother’s application to adjourn the proceedings.  I am attracted to the submission made by Ms Wearne that I put in place some orders that deal with:  (a) the filing of further material, or filing of evidence-in-chief by the mother and (b) the obtaining of legal representation for her.

I certify that the preceding forty-one (42) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 9 February 2011.

Associate: 

Date:  21 April 2011