Merino & Artigas
[2022] FedCFamC1F 544
Federal Circuit and Family Court of Australia
(DIVISION 1)
Merino & Artigas [2022] FedCFamC1F 544
File number(s): SYC 6408 of 2018 Judgment of: ALTOBELLI J Date of judgment: 14 June 2022 Catchwords: FAMILY LAW – PROCEDURAL – Application to withdraw from the record – Where the mother discharged her legal representation in any event – Application to withdraw granted – Where the mother makes adjournment application on the basis of needing time to prepare her case – Where litigation has already been delayed – Considerations of the mother’s conduct in litigation, the public interest and the interests of the child in having the prolonged litigation conclude – Application to adjourn dismissed. Division: Division 1 First Instance Number of paragraphs: 10 Date of hearing: 14 June 2022 Place: Sydney Counsel for the Applicant: Mr O’Reilly Solicitor for the Applicant: Doolan Wagner Family Lawyers The Respondent: Litigant in person Counsel for the Independent Children's Lawyer: Mr Ladopoulos Solicitor for the Independent Children's Lawyer: Legal Aid NSW Sydney Central ORDERS
SYC 6408 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR MERINO
Applicant
AND: MS ARTIGAS
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
ALTOBELLI J
DATE OF ORDER:
14 JUNE 2022
THE COURT ORDERS THAT:
1.Leave is granted to the legal representatives for the Respondent to withdraw from the record.
2.The Respondent’s oral application for an adjournment of the final hearing is dismissed.
3.The final hearing is adjourned to 15 June 2022 at 10am.
4.By no later than 14 June 2022 at 2pm, the Respondent is to identify the affidavits already filed on which she intends to rely and notify the Applicant, the Independent Children’s Lawyer and chambers of the same.
5.By no later than 14 June 2022 at 5pm, the Respondent is to notify the Applicant, the Independent Children’s Lawyer and chambers of the minute of order that she proposes the Court make on a final basis, if different from those in her Amended Response filed 20 May 2022.
6.By no later than 15 June 2022 at 10am, the Respondent is to provide a proof of evidence by way of dot points to the Applicant and the Independent Children’s Lawyer.
THE COURT NOTES THAT:
A.The Respondent’s solicitor and Mr Fantin of counsel appeared on behalf of the Respondent but were granted leave to withdraw from the record.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Merino & Artigas has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
(Revised from Transcript)ALTOBELLI J:
This case is about a child, X, who will soon turn nine years old. The litigation commenced in 2018 which means that for almost half of this child’s life there has been litigation concerning her. The matter has been in my docket for quite some time and I have therefore had the opportunity on several occasions to interact from the bench with the mother, the father’s representative and the Independent Children’s Lawyer. The matter was listed for hearing in June 2021 and a s 102NA order was made facilitating the mother’s legal representation. Trial directions were made as recently as 12 April 2022. On 21 April 2022 the mother’s s 102NA solicitor came on the record.
The current arrangement provide for X to spend alternating weekends and half the school holidays with the father provided such time be supervised or in the presence of the father’s partner.
On the first day of the final hearing, the mother’s appointed legal representation pursuant to s 102NA sought leave to withdraw on the basis of lack of proper instructions. It must be noted that the mother’s counsel, Mr Fantin, made a number of statements in respect of which the Court places no weight whatsoever and I exclude those comments firmly from my mind. Based on my numerous interactions with the mother she has presented as a courteous, intelligent and articulate woman who is very concerned for the welfare of her daughter. The mother explained to me that she terminated the relationship with her lawyers in any event. It therefore becomes irrelevant as to the basis such leave to withdrew is sought. Their services had been terminated.
The mother consequently makes an adjournment application. The mother submits that the reason for such an application is that she has not been able to prepare her trial affidavit because of health reasons, computer problems and, I detect, a lack of satisfaction with the legal assistance that she was provided. The mother provides no particulars, however, as to her health concerns and what computer problems there were. It is noted that the assertion of computer problems is inconsistent with a particular email from her solicitor that refers to her preparing her trial affidavit. The mother initially sought an adjournment for six weeks, but I explained that that could not be accommodated by the Court. Counsel for the father and for the Independent Children’s Lawyer both opposed the adjournment on behalf of their clients.
The Court is faced with a number of possibilities as to how to proceed. Firstly, one possibility is to simply adjourn the proceedings to the next available hearing date in my docket, which would not be until February 2023 resulting in a delay of six or seven months. This option would continue this litigation for this family, which would be a very unsatisfactory outcome for X. The submission is made that even if an adjournment were granted, given the somewhat tortuous and difficult procedural history of the matter, there would be no assurance that the mother would be ready on the next occasion. I do not know whether that is the case or not, but it is a factor I take into account. The mother did receive the benefit of legal representation which she has declined.
Secondly, another possibility, as submitted by counsel for the father, is that I proceed on an undefended basis today. I am not prepared to do that in circumstances where the mother is here and is, as I have observed, very intelligent and articulate. I see no basis to proceed on an undefended basis.
Thirdly, a further possibility is that I could allow the mother time today to identify the affidavit material on which she relies and to prepare her cross-examination of the witnesses in the father’s case, other than of the father himself. That would allow the proceeding to commence tomorrow and continue to the end of the week and hopefully conclude all of the evidence. I am told from the bar table that neither party has required Dr C, the single joint expert, to be made available for cross-examination. The advantage of that course of action is that it sees the Court deal with the case as best it can on the available evidence. It limits the mother’s ability to cross-examine the father, particularly in relation to risk issues that she contends continues to exist and which warrants an order for ongoing supervision of the father. The mother would be limited in not being able to cross-examine possibly the most important person in the father’s case, that is, the father. The mother would also have limited time, and she would have the disadvantage of not having her own evidence-in-chief, so to speak, by way of her affidavit. Nonetheless, the disadvantage is largely brought upon by herself by the way in which she has not been able to prepare for the hearing and has terminated her legal representation.
Fourthly, a possibility proposed by myself is that I would hear this matter on an interim basis and then adjourn the matter for further hearing. The benefit of proceeding on an interim basis is that the evidence would not be tested in cross-examination and to that extent, it would place less pressure on the mother to cross-examine. She would make submissions and, in effect, tell me what she believes is in the best interests of X. As I have observed, she is quite capable of doing that. It would mean that the Court could review all of the evidence to date, albeit on an untested basis, and make an informed decision about how X should spend time with her father between now and the final hearing. The disadvantage, as pointed out by both counsel for the father and the Independent Children’s Lawyer, is that it means that this litigation is hanging over X’s head – they are my words – not just until the adjourned final hearing, but until a judgment is delivered. Noting the length of time that this litigation has been ongoing, that would be a disadvantage. There is an obvious disadvantage to the father who is funding his own costs of the litigation. There is a disadvantage to the public in terms of provision of Legal Aid to the Independent Children’s Lawyer. There is a disadvantage to other litigants in this Court, because if I adjourn this case for another four days, let us say, in February 2023, that is to the disadvantage of other families who have been patiently waiting for their turn to have Court time, and who have complied with trial directions.
Thus, there are advantages and disadvantages with each of the proposals. The greatest concern for the Court is to minimise the pressure of ongoing litigation to X. This would limit the options to either an interim hearing or to proceed to hear the matter as best we can during the course of the week. The mother would be disadvantaged, but the mother has, in effect, made a choice to represent herself. So what difference does it make, ultimately, whether it is an interim or a final hearing that takes place this week?
I am very conscious of the number of cases that are waiting to be heard and the public interest. When all of those considerations are taken into account, I decline to grant the mother’s application for an adjournment. I decline to hear this matter on an interim basis. I decline to proceed on an undefended basis.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Altobelli. Associate:
Dated: 14 June 2022
0
0