MAYER & MAYER

[2018] FamCA 531

FAMILY COURT OF AUSTRALIA

MAYER & MAYER [2018] FamCA 531

FAMILY LAW – INTERLOCUTORY APPLICATION – Where the mother seeks an adjournment of the trial – Where the father and Independent Children’s Lawyer oppose the adjournment application – Where the mother asserts she cannot be ready for trial because she is self-represented and English is her second language – Where the mother alleges the father poses a risk of harm to the children – Where current interim orders provide for the children to spend only supervised time with the father due to the mother’s allegations about the risk he poses – Where relatively swift determination of the litigation is required for the children – Where the evidence proved the mother can competently communicate in writing and there is no objective reason why she cannot file her affidavit material in advance of the trial – Ordered the adjournment application be dismissed and the parties be granted further time to file and serve evidence prior to the trial.

Family Law Act 1975 (Cth) s 69ZW

APPLICANT: Mr Mayer

RESPONDENT: Ms Mayer

INDEPENDENT CHILDREN’S LAWYER: Susan Gray

FILE NUMBER: CSC 263 of 2017

DATE DELIVERED: 12 July 2018

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 12 July 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Oliver

SOLICITOR FOR THE APPLICANT: Marino Lawyers

COUNSEL FOR THE RESPONDENT:

In person

SOLICITOR FOR THE RESPONDENT:

In person

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT:            

Not Applicable

Not Applicable

Orders

(1)The Application in a Case filed by the mother on 27 June 2018 is dismissed.

(2)The Response to an Application in a Case filed by the father on 4 July 2018 is dismissed.

(3)The Application in a Case filed by the father on 6 July 2018 is dismissed.

(4)Any and all other outstanding applications for interim relief are dismissed.

(5)The time for the parties’ compliance with Order 5 made by Justice Tree on 31 May 2018 is extended to Thursday, 2 August 2018.

(6)The time for the parties’ compliance with Orders 8, 10, 11 and 12 made by Justice Tree on 31 May 2018 is extended to Wednesday, 8 August 2018.

(7)Pursuant to s 69ZW of the Family Law Act, the Queensland Child Welfare Authority shall produce to the Court any further documents or information pertaining to the parties and their two children not already produced to the Court pursuant to subpoena.

(8)Leave is granted to the Independent Children’s Lawyer to furnish a copy of these orders to the Queensland Child Welfare Authority.

(9)No order as to costs.

NOTATIONS

A.The trial remains fixed to commence on Monday, 13 August 2018.

B.The compliance hearing remains fixed before the Registrar at 9:30 am on 9 August 2018.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: CSC 263 of 2017

Mr Mayer

Applicant

And

Ms Mayer

Respondent

And

Independent Children’s Lawyer

EX TEMPORE

REASONS FOR JUDGMENT

1.On 31 May 2018, Tree J listed these proceedings for trial before him in North Queensland commencing on 13 August 2018. 

2.The proceedings concern parenting orders between the applicant father and respondent mother in respect of their two young children under Part VII of the Family Law Act 1975 (Cth) (“the Act”).

3.On 27 June 2018, the mother filed an Application in a Case seeking an adjournment of the trial, which application is opposed by both the father and Independent Children's Lawyer. In support of her application, the mother relied on her affidavit filed on 27 June 2018 and made submissions through her interpreter. The father relied upon his Response to the Application in a Case and his affidavit, both of which were filed on 4 July 2018.

4.The reasons advanced by the mother for the adjournment were that she is now self-represented and, since English is her second language, she is not confident she can have her case ready for trial in little more than a month’s time. She has made an application for a grant of legal aid, which she expects to be determined one way or the other next week.

5.These proceedings were commenced over a year ago in April 2017. In May 2018, the proceedings were fixed for trial in August 2018 and the single expert report was released about a week ago. Presently, the children spend only supervised time with the father because of the mother’s allegations he poses a risk of harm to them, which allegations he asserts are specious. Those interim arrangements have applied since June of 2017. He alleges the mother continues to breach the orders and continues to make false allegations against him. Indeed, the Independent Children's Lawyer confirms a current investigation is on foot with the Queensland child welfare authority, which is expected to be completed by the time of trial. The father deposed that all allegations so far investigated have been unsubstantiated and he asserted the same result will follow from the current investigation. 

6.So far, the mother has been represented by various lawyers. Her last lawyers recently gave notice of the cessation of their representation of her, but she did not depose why that occurred. There is no evidence or explanation before the Court as to:

(a)Why she cannot get replacement lawyers promptly; 

(b)If she previously enjoyed a grant of legal aid, why the grant of legal aid cannot be transferred to her new lawyers; and

(c)If her last lawyers withdrew because the grant of legal aid was terminated, why she expects a fresh grant to be made in her favour.

7.While English is not the mother’s native language, she is able to communicate in writing satisfactorily. She has done so adequately with the father’s lawyers in respect of this very application. In fact, the father asserts the mother is much more competent in the English language than she is willing to admit. That could be so, but am unable to make a finding. Regardless, the evidence proved she can competently communicate in writing. Time is relatively short, but there seems no objective reason why the mother cannot have her affidavit material filed in advance of the trial.

8.The mother has known since May 2018 of the trial fixed to start in August 2018. Any problems she has encountered with her lawyers is a matter for her to resolve. No aspect of the evidence fairly imputes that her current predicament of being without any legal representation is the fault of her past lawyers. The current interim parenting regime is unsatisfactory to the father and, because of the issues at stake, the children need and deserve a relatively swift determination of the litigation.

9.In the circumstances, the opposition of the father and Independent Children's Lawyer to the adjournment was understandable. The adjournment application will be refused.

10.To minimise inconvenience to the mother, the procedural orders made by Tree J will be amended to give the mother (and the father) more time to file and serve evidence. The father acceded to that remedy. 

11.The evidence of risk posed by the father to the children is important to the mother. For that reason, I will make an order under s 69ZW of the Act directed to the Queensland child welfare authority requiring it to produce to the Court any further documents related to its current inquiry which have not already been produced pursuant to any past subpoena. That will ensure, for the parties’ mutual benefit, that all current independent documents related to the issues joined between them will be available to tender in evidence.

12.Given that the mother’s application to adjourn the trial is refused, the father conceded that his parallel application for variation of the existing interim parenting orders need not be pursued and so that application will also be dismissed. 

13.For those reasons, I make the following orders.

ORDERS DELIVERED

14.I make the following notations

NOTATIONS MADE 

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 12 July 2018.

Associate: 

Date:  20 July 2018