Materanzi and Suskain (No 2)

[2013] FamCA 810

FAMILY COURT OF AUSTRALIA

MATERANZI & SUSKAIN (NO. 2) [2013] FamCA 810

FAMILY LAW – CHILDREN – Where the mother made an oral application to adjourn the final hearing of the proceedings – Where the basis of the mother’s application is that she has been unable to secure legal representation and only recently became aware of her refusal of Legal Aid – Where the mother’s application for adjournment of the proceedings is opposed by the father and the independent children’s lawyer – Where the proceedings between the parties has a long history in this Court – Where the father is seeking a significant change to the existing parenting arrangements for the child of  the parties – Where the court determined that the matter be adjourned in the interests of justice – Where the mother’s application is granted and new hearing dates allocated.

FAMILY LAW – CHILDREN – Interim parenting – Where the independent children’s lawyer sought an interim order that the time the child spends with the mother on Thursdays be suspended – Where there was evidence that changeovers were difficult and a source of conflict – Consideration of the best interests of the child – Where the court determined that pending further order the Thursday time be suspended.

Family Court of Australia 1975 (Cth)

APPLICANT: Mr Materanzi

RESPONDENT: Ms Suskain

INDEPENDENT CHILDREN’S LAWYER: Legal Aid New South Wales

FILE NUMBER: SYC 776 of 2010

DATE DELIVERED: 11 September 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Aldridge J

HEARING DATE: 11September 2013

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Manfre

THE RESPONDENT IN PERSON: Ms Suskain

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Mr O’Dowd

Orders

1. That leave is granted to the parties to inspect material produced under subpoena by the Department of Family and Community Services, NSW Police, CC Primary School and S Primary School.

1. That this hearing is hereby vacated.

2. That pending further order, Order 1.2.2 made on 18 April 2012, with respect to the mother spending time with the child on Thursdays, is hereby suspended.

3. That I fix this matter for hearing for five (5) days 20-21 February 2014, 25-27 February 2014 commencing at 10am.

4. That each of the parties, that is the father and the mother, are to file and serve any further affidavit material upon which they would seek to rely by no later than close of business on 24 January 2014.  No affidavit material may be filed after that date without prior leave of the Court.

5. That by consent and pending further order, orders are made in accordance with the handwritten document signed by the parties, initialled by me and dated today, set out herein:

   That to implement order 6 of the Orders of 14 April 2013 the child H shall spend time with the mother as follows:

   (a)  3pm on 18 December 2013 to 3pm on 9 January 2014;

   (b)  3pm on 20 September 2013 to 3pm on 29 September 2013.

6. That an updated family report shall be prepared for the assistance of the Court.  I note that the Family Consultant will be available in January 2014 to take the required steps to prepare such a report.

7. That, in the event of any difficulties, liberty is granted to the Independent Children’s Lawyer to restore the matter to the list upon giving three (3) days notice.

8. That leave is granted to the Independent Children’s Lawyer to issue such subpoena as is necessary.  Such subpoena are to be made returnable and inspected prior to the first day of the hearing.

NOTATIONS:

1. I note that the Court will have the CART system available for the assistance of the mother for the hearing fixed.

1. I note that this matter shall proceed to hearing on 20 February 2014 whether or not the mother is legally represented. 

2. I note that the Independent Children’s Lawyer has foreshadowed an Application for Costs against the mother in the sum of $2,002.  The costs of the Independent Children’s Lawyer as against the mother are hereby reserved.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Materanzi & Suskain 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 SYDNEY

FILE NUMBER: SYC 776 of 2010

Mr Materanzi

Applicant

And

Ms Suskain

Respondent

REASONS FOR JUDGMENT

Introduction

1. These reasons were delivered orally.

2. This is an application by the respondent mother in these proceedings to vacate the hearing of the father’s application which has been listed for three days commencing today.  The basis of the mother’s application is that she has been unable to secure legal representation, only became aware of her refusal of Legal Aid recently and has not, in the time available since, been able to organise to have a lawyer act for her.

3. The matter was fixed for hearing at a directions hearing on 6 May 2013.  At that time, the mother was expecting a barrister to appear for her on that day.  The barrister did not do so.  However, the independent children’s lawyer, then appearing, telephoned counsel and a date to suit her convenience was fixed as a trial date.  There was no suggestion then by the barrister that her availability was conditional. 

4. At the same time, the parties were directed to file their affidavit and other material on which they were to rely by 23 August 2013 and the matter was put in for a directions hearing on 30 August 2013.  Neither party filed their affidavits by 23 August 2013, with the father filing his affidavit on 4 September 2013.  There was no appearance by the mother at the directions hearing on 30 August. 

5. It appears that the mother instructed a firm of solicitors to act for her and they made an application for Legal Aid on her behalf.  It appears that on 30 May 2013, Legal Aid was refused.  A further application was made on 13 June 2013 and a reply was received on 17 June 2013 from Legal Aid advising that their decision remained unchanged.  On that day, the lawyers for the mother indicated that the mother’s appeal against the refusal of a grant of Legal Aid would be referred to the Legal Aid Review Committee. 

6. Unfortunately, it was not until 6 September, which was Friday of last week, some three business days ago, that the Legal Aid Review Committee advised that the appeal had been disallowed.  The correspondence that the mother had had with the lawyers indicates that they did not regard themselves as representing the mother, other than to seek a grant of Legal Aid, until such a grant of Legal Aid was made and it was for that reason they did not attend on 30 August. 

7. On 2 September 2013, the independent children’s lawyer wrote to the mother advising her that the matter may proceed on an undefended basis today if she did not file her affidavits by then.  The mother asserts that a draft of her affidavit has been prepared but sent to five different lawyers or people for checking as she does not have the expertise to finalise it herself. 

Previous proceedings

1. The matter has had a significant history in this Court.  On 9 February 2011, Forrest J vacated a five day hearing for final parenting orders on the basis that the mother did not have legal representation, because the barrister then appearing sought to withdraw and there was no other available.  There was also, at that time, a failure by the mother to file updated affidavit material.  The hearing came on before Stevenson J on 21 March 2011 and it proceeded.  Stevenson J ordered that the child H (“the child”), live with the father and that during school term times, the child spend time with her mother each alternate weekend from the conclusion of school on Friday until the commencement of school on Monday and from the conclusion of school on Thursday to the commencement of school on Friday in each other week.

2. The matter was before the court on 28 February 2012 when Rees J discharged the order for time during school term and replaced it with an order that the child spend time with her mother each alternate weekend from the conclusion of school, or 3 pm, on Friday until 7 pm on Sunday and from the conclusion of school on Thursday, or 3 pm, to 7 pm that evening in each other week.  Her Honour also restrained the mother from removing the child from CC School and from approaching or attending that school without the father’s written consent.  Those orders were made because of a history of difficulties with changeover, with the mother continuing to contact the child at school and the mother unilaterally changing the child’s school.

Present proceedings 

1. In the present proceedings, the father originally sought an order that the child have no contact with her mother and that all orders that she spend time with her be discharged.  This is because he asserts that there are such difficulties at changeover times by which the child is severely affected and he also asserts that when the child is with her mother she takes that time to denigrate the father and tries to undermine the child’s relationship with her father and the father’s new wife. 

2. Today it was indicated that, having had regard to the family consultant’s report, the father no longer sought a no contact order but, rather, sought as his prime order that all time the child is to spend with her mother be supervised or, alternatively, that the time the child spends with her mother be reduced to Saturday and Sundays only with changeover at an independent contact centre.  The position of the independent children’s lawyer at final hearing is still not clear, but the independent children’s lawyer indicated that it was their view that it was not in the child’s best interests for the Thursday time to continue.

3. The father has filed a detailed affidavit which sets out significant details and communications between him and the mother in relation to the changeover asserting what he says are the difficulties that arise from it.  Although the mother asserts that a number of the things that he says are not correct and, indeed, have been fabricated, she accepts that changeovers are a difficulty.  She blames the father for this.  There is, therefore, a significant factual dispute which will need to be determined on a final hearing.  It is difficult to do so, but not impossible, without an affidavit from the mother.  Certainly, without such an affidavit, the mother would be disadvantaged, if the matter proceeds today with her having to give detailed evidence-in-chief in the witness box.

4. The mother is profoundly deaf.  These court proceedings are being conducted with the assistance of CART, which is an instantaneous transcription service, so that the mother may read from a screen what is being said by others.  For ease of understanding what she says, she is typing her responses on a laptop which are being displayed on a screen and the answers being read on to the transcript.  The mother is being assisted by a person from the Deaf Society who is sitting with her.  This means, of course, that the proceedings are being conducted slowly.  That is no criticism of anybody and, indeed, the technology available makes it easier for everybody in the court room to communicate, but it does take time.  There is no doubt that if this matter were to proceed, it would not conclude in the three days that were allocated for it, or in the two days and slightly more than an hour that remain.

5. The mother says that if she is given an adjournment, the Deaf Society will assist her to find a lawyer.  She also asserts that another application for legal aid might be successful, because having looked at the application that was lodged on her behalf, by the previous lawyers, there were errors.  For example, her address is, in one document, described as Suburb TT, although the relevance of that to a different outcome would seem to be questionable.  The mother also asserts that one of the errors was that she had not seen her child for six months, which was clearly wrong, I am not sure what any difference that would make to the outcome. 

6. The issue, ultimately, to be borne in mind, is to balance the rights and interests of the mother to have a trial where she is represented, and her interests are advanced as best they can be, against the rights of the father, as a litigant who is entitled to have his case heard.  Overriding both these considerations are the interests of the child.

7. The Independent Children’s Lawyer joins with the father in opposing the adjournment application.  She, very fairly, points out that if the mother had found a lawyer at short notice and as a consequence the lawyer was not able to be ready for trial today, that would tip the scales in favour of an adjournment.  That is not the position.  There is no guarantee of any kind that if there is an adjournment, a lawyer will be found to appear for the mother, or that legal aid will be granted to pay for that lawyer.

8. Secondly, she submits that had the father persisted in seeking a no contact order that would have been a factor that supported an adjournment because of the severe nature of the orders sought and the significant change to the parenting relationships.  However, because a no contact order is no longer sought it is submitted that the change to the parenting arrangements now being pursued by the father is not such that requires an adjournment. 

9. The father’s primary application is that the mother be restricted to supervised time, at a contact centre, on Saturdays and Sundays.  That would limit her time with the child to no more than two hours on a Saturday and two hours on a Sunday at the most, in the presence of others.  I think that is a significant change to the parenting arrangements and whilst the order now sought by the father is not an order of such severity as a no contact order it is still an order that would be approached with caution. 

10. In that regard, the report of the family consultant did not recommend a no contact order but recommended that the child continue to spend time with her mother on alternate weekends, from Friday until Sunday.  It was, however, the recommendation of the family consultant that consideration be given to the two hours on a Thursday night.  The family consultant did not, specifically, address the question of supervised time, as proposed by the husband either in his primary or secondary position.  There is no doubt that it had not been specifically raised at that time.

Conclusion

1. Whilst it is true that at some stage the court will need to draw a line and proceed to hear the matter, regardless of the state of preparedness of the mother.  However, taking into account the date of the refusal of the appeal by the Legal Aid Review Committee, the nature of the orders sought by the father, the fact that the trial will not conclude this week in any event and the desirability for the mother to be able to present a case in an appropriate way, notwithstanding the opportunities she has had, the interests of justice indicate that the balance tilts in favour of vacation of the hearing date. 

2. The court raised with the mother the possibility of imposing, if the matter date were to be vacated, an order that affidavits be filed by a certain time, and that if they were not filed by that time, they could not thereafter be filed without the leave of the court previously given.  The mother indicated that she understood and did not oppose that order.  Although it is not possible to make an order that binds the court in advance, the mother has been clearly made to understand that it is the court’s present intention to proceed on the next hearing date, whether or not she has a lawyer acting for her.

Interim order sought by the independent children’s lawyer

1. The issue then turns to the interim order sought by the independent children’s lawyer, supported by the father pending the final hearing that Thursday time be suspended.  Although the mother disagreed with the father’s version of the events, as set out in his affidavit, she agreed that changeovers were difficult and a source of conflict.  She attributes the blame for that to the father.  It is not possible on an interim hearing to come to a view as to which of the two versions is correct.  It is sufficient to say that if the father’s version is correct, in the last few months, the mother has frequently been significantly late returning the child on Thursday – often as late as 8.30 pm.  If that is so, that is clearly not desirable. 

2. The mother said that whatever difficulties had existed in the past with returning the child on Thursday nights, it was because she had had a class that finished late, which made it difficult to return the child on time, and that as she was no longer in that class, it would be no difficulty in the future.  The last difficulty attested by the father at changeover was on 31 August 2013.  The issue is whether the benefit to the child spending time with her mother and her half-siblings on Thursdays is outweighed by the detriment of a conflict caused to her parents and the difficulties in the late changeover which, by implication, are accepted by the mother, have occurred recently.

3. The primary consideration under section 60CC of the Family Law Act is for the child to have a meaningful relationship with both the child’s parents – excepting, of course, that the overarching requirement is to act in the best interests of the child.

4. The child seems to have a good relationship with both parents, as emerges from the family report.  The main difficulties that the child seems to have seem to arise out of the conflict with her parents and because of that conflict, the child at some times, according to the family consultant, then says to her mother, in particular, what she thinks her mother might wish her to say about the father so as to avoid to be seen to be enjoying the company and the time she spends with the father as much as she does.

5. The disruption to the child’s routine, and the conflict between her parents, according to the family consultant, is starting to have a significant impact on the child and her relationship with both parents.  After rejecting the possibility of supervised time, or a no contact order, the family consultant continued:

   It is this writer’s assessment that, at this point in time, at least, it might be more in [H]’s interest if Mr [M] and his wife were to be able to find a way of supporting [H]’s relationship with her mother, whilst also helping her to develop her resilience, so that she can find ways, other than splitting herself – for example, by presenting an unauthentic account to one parent of her life and relationship with the other – to deal with her problematic family situation.

6. She then continued shortly afterwards to say that to reduce the number of changeovers, and therefore the opportunities for conflict, it was recommended that consideration be given to removing the two hours on a Thursday night. 

7. Whilst the mother does not accept all of the matters that are set out in the family consultant’s report, that nevertheless remains the only evidence before the court, together with the evidence of the father.  On an interim basis, and subject to any evidence and findings that will be made on a final hearing, the material as it is at present indicates that not only will the child continue to have a meaningful relationship with both parents if the Thursday night time is suspended, it might in fact enhance her relationship with both parents. 

8. As far as can be seen, the child seems to have a good relationship with other persons in both households.  It was suggested by the mother that the difficulties arising with the Thursday night time could be alleviated by changeover taking place at her mother-in-law’s house some 700 metres away from the mother’s residence. 

9. There is no evidence from the mother-in-law as to whether she would be prepared to do so, as to her suitability, and she was not a person who was interviewed for the purpose of the family consultant’s report.  The nature of her relationship, thus, with the child, is unknown.  In those circumstances, that order cannot be made.  However, the nature of the relationship of the child with the other persons is such that it does not have any particular impact on the proposed order. 

1. The change in the circumstances by the suspension of Thursday time is on the evidence as it presently stands, which of course is subject to evidence and findings at the final hearing, that she is likely to benefit from the suspension of Thursday time because, even though she will see her mother for less, the conflict between her parents will be reduced and the pressure on her to try and please both in that situation of conflict will be reduced. 

2. The other matters raised by section 60CC are either not relevant or cannot be the subject of a determination on the evidence that presently stands. Taking all these matters into account, the appropriate order is that until further order of the court, the Thursday night be suspended.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 11 September 2013.

Associate: 

Date:  2 October 2013