Mendoza and Lawler

[2007] FamCA 1684

FAMILY COURT OF AUSTRALIA

MENDOZA & LAWLER [2007] FamCA 1684

FAMILY LAW – CHILDREN – APPLICATION TO ADJOURN FINAL STAGE Div 12A hearing – Where mother’s solicitors failed to inform her of trial dates or directions – In child’s and the interests of justice that hearing is adjourned – Application granted

Family Law Act 1975 (Cth)

APPLICANT: Mr Mendoza

RESPONDENT: Mr Lawler

FILE NUMBER: (P)NCF 565 of 2006

DATE DELIVERED: 10 October 2007

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Justice Ryan

HEARING DATE: 10 October 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms O’Rourke

SOLICITOR FOR THE APPLICANT: Legal Aid Commission of New South Wales

COUNSEL FOR THE RESPONDENT: Mr Attia

SOLICITOR FOR THE RESPONDENT: JR Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Olsen

Orders

1. That on the mother's application the trial listed to commence 15 October 2007 is vacated.

2. That this matter is listed for final hearing for four days commencing 25 February 2008 before me.

3. That the parties file and serve all affidavits upon which they propose to rely no later than six weeks prior to the commencement of the final hearing.  In relation to the above order, the father need only file such updating material as he considers appropriate.

4. That any party and/or the Independent Children's Lawyer shall give the Court expert no less than 14 days notice in writing that she is required for cross-examination.

5. Liberty to apply on 48 hours notice.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: (P) NCF 565 of 2006

MR MENDOZA  

Applicant

And

MR LAWLER  

Respondent

REASONS FOR JUDGMENT

1. These reasons were delivered orally.

2. This is an application by the mother to vacate a four day final hearing scheduled to commence on Monday next, 15 October 2007. 

3. The proceedings concern the child who is the parties' four and a half year old son future living arrangements.  Presently the child lives primarily with his mother and spends time with his father in accordance with a series of interim orders made during this LAT hearing.

4. During the LAT hearing an expert's report was obtained from Ms S.  This report, which is dated 28 March 2007, was released to the parties shortly afterwards.  Ms S recommends that final orders are made so that the child lives primarily with his father and has regular unsupervised periods with his mother.  If the recommendation is implemented it will change a lifelong status quo.

5. On 4 June 2007 I allocated the above trial dates.  On that day the next financial year’s judicial calendar had not yet been finalised and it was not possible to fix the trial dates.

6. By letter dated 21 June 2007 the list clerk wrote to the parties' lawyers and the Independent Children's Lawyer informing them of the specific trial dates.

7. It is the mother's unchallenged evidence that she understood trial dates would be allocated some time during November 2007.  It is her unchallenged evidence that the Court's 21 June 2007 letter was not sent to her. More relevantly, she says she was not even informed of its contents.  It came as a surprise to her to learn in early September 2007 that the Court had allocated mid-October 2007 trial dates.  When she became aware of the mid-October 2007 trial dates, the time period for filling affidavits had all but expired.

8. It is submitted on the father’s behalf that the mother appears literate and that she appears to have sufficient acumen to herself make inquiries of the Court, pursue her lawyers and other avenues, in order to ensure that her case was being advanced in accordance with the timetable.  I accept that submission.

9. The point that the submission does not address, however, is the advantage to litigants of legal representation.  Those advantages are well known and do not require restating here.  A person who is legally represented is entitled to rely upon their lawyer to inform them of trial dates and the timetable for compliance with pre-trial directions, including filing affidavits.  Silence from the lawyer does not, per se, mean that a litigant would themselves make other enquiries in order to second guess whether the lawyers silence means something is happening which the lawyer is not communicating or, alternatively, confirmation that nothing is occurring.

10. In this case, the mother inferred that silence from her lawyers indicated the latter.  That is, that possibly there might be trial dates allocated some time in November 2007 but that at this stage, other than arranging her own psychotherapy, there was nothing that her lawyer required from her.  In the circumstances, it is not unreasonable that the mother failed to make further inquiries of the Court or the Independent Children's Lawyer to ascertain what may have been happening with the allocation of trial dates and preparation for trial. 

11. The net effect of these findings is that, firstly, I accept the mother was unaware until early September 2007 that her case was listed for final hearing commencing 15 October 2007.  Next, that the mother was unaware she was required to file and serve her affidavits by early September 2007.  Finally, that the mother's lack of awareness is not as a consequence of any failure on her part. 

12. The father submits that even if the Court is satisfied that the mother's difficulty in now attempting to deal with the trial scheduled to commence on Monday is not of her own making, the Court must balance the difficulties she faces with the potential consequences for the child of a delayed trial.  Although not put as forcefully, I understand the submission is also made that the Court would not readily accede to an adjournment application in circumstances where the father commenced this case 12 months ago, has diligently attended to his obligations as a litigant and is thus entitled to have his case heard as soon as is reasonably practicable.  I accept these submissions.

13. Disadvantage to the child is probably the more telling issue, however, in this particular case.  The child will start school next year and I agree with Ms O'Rourke and Ms Olsen that it is desirable that his living arrangements are settled so that if there is to be a change in his living arrangements any change is implemented before school commences.  An immediate advantage of settling his arrangements before school commences is that there is no risk that he needs to change school in his first year.  It also means that he can start school without being concerned about whether he will be continuing to live with his mother or changing to live with his father.  These matters all weigh heavily against the mother’s adjournment application.

14. If, as the mother submits, the hearing commences on Monday it almost certainly follows that she is not in a position to present her case properly.  Her affidavits are not done, she has only now submitted an application for legal aid to fund the trial, and she has not been able to secure the therapeutic support referred to in Ms S' report.  The child's future is best served if both parents are in a position to present their cases and, as a consequence, obviously, his interests to the extent that they interconnect, properly. 

15. If the mother's adjournment application is refused, the probability is that the Court will hear the father's case well presented, the Independent Children's Lawyer's case reasonably well presented.  The significance of the qualification is only that the Independent Children's Lawyer would not have the benefit of being able to assess and analyse the mother's circumstances and, to the extent that they interconnect, the child's circumstances with her.  The mother's case will not be properly presented.  In the circumstances this consideration must take precedence to the difficulties which may arise as a consequence of the hearing being adjourned to a date after the child commences school. 

16. In all of the circumstances, regrettably, I am satisfied that the adjournment application must succeed and I order accordingly.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan

Associate

Date: 5 June 2008