MULLALY & MULLALY
[2018] FamCA 250
•23 April 2018
FAMILY COURT OF AUSTRALIA
| MULLALY & MULLALY | [2018] FamCA 250 |
| FAMILY LAW – PROCEDURAL – Adjournment application – Consideration of s 57 of the Legal Aid Commission Act 1979 – Where there are special circumstances in this case which prevent the court from granting the father’s application for adjournment – Where the application for an adjournment was dismissed |
| Family Law Act 1975 (Cth) Legal Aid Commission Act 1979 s 57 |
| Re F: Litigants in person guidelines (2001) FLC 93-072 Rowell & Keogh [2011] FamCAFC 74 |
| APPLICANT: | Ms Mullaly |
| RESPONDENT: | Mr Mullaly |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
| FILE NUMBER: | PAC | 471 | of | 2011 |
| DATE DELIVERED: | 23 April 2018 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Watts J |
| HEARING DATE: | 5 March 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Gillies, SC |
| SOLICITOR FOR THE APPLICANT: | Matthews Folbigg Pty Ltd |
| SOLICITOR FOR THE RESPONDENT: | Litigant in person |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
Orders (made 5.3.18)
The husband’s application for an adjournment of the final parenting hearing is dismissed.
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 Mullaly & Mullaly 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 SYDNEY |
FILE NUMBER: PAC 471 of 2011
| Ms Mullaly |
Applicant
And
| Mr Mullaly |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
Competing proposals for final parenting orders in respect of B born in 2009, aged nine (“the child”) were scheduled for a hearing over four days commencing 5 March 2018. At the commencement of the hearing the father made an oral application for a four week adjournment of the final hearing. That application was dismissed. I reserved my reasons and now provide them.
That application for an adjournment had been foreshadowed in an email sent by Mr C, a solicitor instructed by the father initially for the purpose of drafting a document that set out the basis of the father’s adjournment application. That email was sent at 17:42 on Friday 2 March 2018 (Exhibit 1).
Final parenting orders in this matter were originally made by Stevenson J on 2 April 2012. It is common ground between the parties that the child has not seen his father since early 2015 apart from the occasion in February 2017 when he saw his father in Dr D’s rooms for the purposes of the interview for the expert report.
SECTION 57 LEGAL AID COMMISSION ACT 1979
The father tendered a letter from Legal Aid NSW refusing his application for legal aid. He had made the application for legal aid on 11 February 2018 and received the refusal letter on 21 February 2018. The father did not provide a copy of that application to the court. This letter records:
4.1.A refusal on the merit test as all relevant court documents had not been supplied to the Legal Aid Commission; and
4.2.A refusal on the means test having regard to the father’s general financial circumstances.
The father gave evidence that he intended to appeal the refusal of his Legal Aid application and provide the Legal Aid authorities with further documentation in relation to his financial circumstances and documents relevant to the merit of his application.
Section 57 of the Legal Aid Commission Act 1979 is in the following terms:
Where it appears to a court or tribunal, on any information before it:
(a) that a party to any proceedings before the court or tribunal:
(i) has appealed, in accordance with section 56, to a Legal Aid Review Committee and that the appeal has not been determined, or
(ii) intends to appeal, in accordance with section 56, to a Legal Aid Review Committee and that such an appeal is competent,
(b) that the appeal or intention to appeal is bona fide and not frivolous or vexatious or otherwise intended to improperly hinder or improperly delay the conduct of the proceedings, and
(c) that there are no special circumstances that prevent it from doing so,
the court or tribunal shall adjourn the proceedings to such date on such terms and conditions as it thinks fit.
The Full Court in Rowell & Keogh [2011] FamCAFC 74 held that s 57 Legal Aid Commission Act created a presumption that an adjournment will be granted unless there are “no special circumstances that prevent it from doing so”.
The question that arises on the facts in this case is whether there are “special circumstances” that prevent an adjournment of the proceedings. The Full Court at [40] adopted as a definition of “special circumstances” as reflecting a requirement of a distinguishable feature.
THE HISTORY OF THE FATHER’S LEGAL REPRESENTATION
The following table sets out the history of the father’s legal representation at court events between June 2015 and February 2018:
| Date of court event | Lawyer | Firm |
| 30.6.15 | H Lawyers | |
| August ‘15 | Mr E | H Lawyers |
| 11.12.15 | Mr F | H Lawyers |
| 1.2.16 | Ms G (saying there are going to be new lawyers | |
| March ‘16 | Mr F | J Lawyers |
| April ‘16 | Mr F | J Lawyers |
| 20.7.16 | Ms K with leave | L Lawyers |
| 18.8.16 | Ms K | L Lawyers |
| 4.10.16 | Ms K | L Lawyers |
| 13.6.17 | Ms M | L Lawyers |
| 24.8.17 | In person | |
| 21.9.17 | Ms N | O Lawyers |
| 6.2.18 | Ms N | O Lawyers |
So it can be seen that the father has instructed at least four (and possibly five) different lawyers in these proceedings. He has on more than one occasion “lost confidence” in the lawyer he has had at a particular time.
There is some uncertainty as to the circumstances in which Ms N from O Lawyers, the father’s last lawyer on the record, ceased to act. The father in effect fired his lawyers by filing a Notice of Address for Service himself on 28 February 2018.
In the email from Mr P dated 2 March 2018, he records the father’s instructions that his previous solicitor “withdrew from the matter on or around 22 February 2018”. It is asserted that on that day Ms N said to the father words to the effect “You have no confidence in me and have lost trust in me therefore I will be withdrawing as your solicitor”. It is unclear as to whether that is an accurate statement.
Exhibit 3 is an email from Ms N of O Lawyers to the mother’s lawyers which is in the following terms:
Unfortunately we do not hold any monies in trust as we are awaiting the outcome of our legal aid application.
We also put you on notice that we have an outstanding invoice and to date, have not been paid any monies in relation to this matter. In the event that our client does not pay our outstanding fees, prior to the hearing and in the event legal Aid is not granted, we will need to seek leave to withdraw from the matter. ….
The father gave evidence that notwithstanding the evidence he gave in his affidavit filed 19 September 2017 which was that while he was currently employed on a full-time basis by October he no longer had any contracts. It was unclear as to what his source of income was between October and the current date. He indicated that he was in receipt of some Centrelink payments but I have no corroborative evidence of that. His partner is in full time employment. He had negotiated some arrangement with the bank in relation to mortgage payments on the home in which he and his partner live. He said he had no savings.
RELEVANT RECENT HISTORY OF THE LITIGATION
At the appearance before Justice Foster on 13 June 2017 the father appeared with Ms M, solicitor. By way of order on 13 June 2017 Justice Foster noted that the parties anticipated the final hearing would take approximately four days. He listed the matter before a Registrar on 24 August 2017 to check the parties’ compliance with directions for trial. His Honour ordered that each party file and serve one consolidated affidavit of their evidence in chief and one affidavit from each of the witnesses upon which they relied no later than 18 August 2017. The mother complied with that direction. The father failed to comply with that direction.
At the directions hearing before Registrar Murdoch on 24 August 2017 the registrar noted that the father, who appeared in person, had not complied with the directions. She noted that his explanation was that his solicitors had ceased to act. The father sought a four week adjournment before Registrar Murdoch. The Registrar noted that Dr D, the expert in the matter, was not available until the new year and because the father was not spending time with the child she granted a further extension but noted that no further extensions of time to the father to file his affidavit material would be given. Time was extended for the father to file an Amended Response until 31 August 2017 and to file affidavits by 14 September 2017. The father failed to comply with that order, filing his affidavits on 19 September 2017.
When the matter came back before Registrar Lioumis on 21 September 2017 liberty was given to approach the list clerk to obtain hearing dates for four days and the matter was listed for hearing commencing 5 March 2018. All parties and the Independent Children’s Lawyer were advised of the hearing dates by letter dated 21 September 2017.
At the time the father filed his affidavit and the affidavit of his partner on 19 September 2017, he was represented by Ms N from O Lawyers.
The last thing that Ms N was actively involved in was the contested proceedings before Registrar Murdoch on 6 February 2018, where on behalf of the father, she had raised notices of objection in respect of subpoenas issued to Company Q; Victoria Police and Suburb R Public School. The notices of objection to those subpoenas were dismissed.
MR P’S EMAIL
As already mentioned, Mr P sent an email to my associate and copied it to the lawyers for the mother. That email asserts that the father instructed Mr P to write to the court foreshadowing the basis upon which the father sought an adjournment. I have already mentioned the uncertainty over statements made in that email. I have not heard from Ms N as to the circumstances in which she purports to cease to act.
A notice of address for service of the father providing his service address at Suburb S, Suburb R and his email address, … was filed on the portal on 28 February 2018 at 1.02am. That document seems to have been filed by the father himself.
The father relies on the late withdrawal of the solicitor who he has had since September 2017.
When Justice Foster originally dealt with the matter on 13 June 2017, Ms T of counsel was noted as being briefed on behalf of the father. That was at a time when the father was represented by Ms M.
Mr P says that on 1 March 2018 he made inquiries as to whether or not Ms T was available and she was not and nobody in her chambers was available. He does not say he made any other attempt to obtain alternate counsel.
This is the second occasion upon which the father has sought an adjournment on the basis he has lost legal representation (as recorded above, he also did that on 24 August 2017).
THE CHILD’S BEST INTERESTS
The seriousness of the orders sought by the mother and the Independent Children's Lawyer
Mr P in his email puts on behalf of the father that this is a complex parenting matter involving serious allegations of family violence in which the mother, and I would add the Independent Children's Lawyer, seek to vary final orders previously made by the court to prevent the father from having a relationship with the child. He submits on the father’s behalf that there is a real risk of a denial of a fair hearing to the father. Having said that, the father has filed his evidence and will be afforded the guidance during the hearing as set out in Re F: Litigants in person guidelines (2001) FLC 93-072.
The vulnerability of the mother’s mental status
Counsel for the mother submitted that any delay in the proceedings would negatively impact the mother’s parenting capacity. In Dr D’s report he states that the mother has been “traumatised by the relationship and has a chronic adjustment disorder with heightened anxiety from the continued threats and intimidation”. The behaviour that the mother asserts was perpetrated by the father, some of which is conceded by him, illustrate that her fears are well-founded. I accept that the granting of an adjournment can only have a deleterious effect upon the mother as the child’s primary carer.
The prospects of a successful Legal Aid application
I was invited to make a finding that there were poor prospects of a successful appeal from the current refusal of a grant of legal aid for the father both because of merits and because of means. Given the recommendations in Dr D’s report, the volume of material in relation to the father’s mental status and the behaviour that has historically been exhibited possibly as a result of that mental status, there is some force in the submission that the father’s appeal on merit has real difficulties. Similarly there are significant questions about the father’s financial circumstances and how the father is currently assisting in the funding of the payments on a mortgage of $600,000.
I find there is at least significant uncertainty about the prospects of the father’s foreshadowed appeal as to both merit and means.
The costs thrown away by the mother
Currently there are poor prospects of the mother recovering any costs under any costs order that is made as a result of the monies that she has lost for the preparation and attendance at the hearing that was scheduled for four days.
No prejudice to the mother
The father indicated that he would not agree to any order suspending the current 2012 orders which provided that the child spend significant face to face time with him. The father submitted that although he was not agreeing to a suspension, the court would find that it would be unlikely that he would bring a contravention application or if he did, that it would be successful. The fact that the father was not prepared to agree to a suspension of the current final orders is a relevant consideration in the adjournment application.
CONCLUSION
Were it not for s 57 of the Legal Aid Commission Act, the father’s application for adjournment would clearly fail.
Turning to s 57, I find there are special circumstances in this case which prevent the court from granting the father’s application for adjournment which are:
33.1.The possible effect of an adjournment on the mother’s mental status and as a result, on her parenting capacity;
33.2.The lateness of the application for an adjournment;
33.3.The unlikelihood of the mother recovering her costs thrown away by the adjournment;
33.4.The resistance by the father to any suspension of the current orders as a condition of any adjournment;
33.5.The father’s history of non-compliance of orders for filing material;
33.6.The uncertainty as to the circumstances in which the father’s last lawyer ceased to act;
33.7.The prior application by the father for an adjournment on the basis that an earlier lawyer had ceased to act for him; and
33.8.The significant uncertainty over the efficacy of any legal aid appeal the father might make.
Accordingly I dismissed the father’s application for an adjournment.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 23 April 2018.
Associate:
Date: 23.4.2018
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