Naczek & Dowler
[2011] FamCA 179
•10 March 2011
FAMILY COURT OF AUSTRALIA
| GOLDY & GOLDY | [2011] FamCA 179 |
| FAMILY LAW - PRACTICE AND PROCEDURE – adjournment – where the mother’s solicitors forwarded material related to prior proceedings to the father’s solicitors without instruction – balancing of the best interests of the children and the need to do justice to each of the parties – orders that the matter be adjourned to allow the mother to seek legal advice |
| Family Law Act 1975 (Cth) |
| APPLICANT: | Mr Goldy |
| RESPONDENT: | Ms Goldy |
| INDEPENDENT CHILDREN’S LAWYER: |
| FILE NUMBER: | ADC | 4823 | of | 2008 |
| DATE DELIVERED: | 10 March 2011 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Dawe J |
| HEARING DATE: | 10 March 2011 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Hurley |
| SOLICITOR FOR THE APPLICANT: | Sykes Bidstrup |
| COUNSEL FOR THE RESPONDENT: | Ms Gray |
| SOLICITOR FOR THE RESPONDENT: | Paul G Doube |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Fuda Duncliffe |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Services Commission |
Orders
That the final hearing of the trial be adjourned to commence on 27 June 2011 and concluding on 8 July 2011 (10 days) before the Honourable Justice Dawe.
That the matter be adjourned for further consideration to Thursday 17 March 2011 at 9.15am for mention before the Honourable Justice Dawe.
IT IS NOTED that publication of this judgment under the pseudonym Goldy & Goldy is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT ADELAIDE |
FILE NUMBER: ADC 4823 of 2008
| Mr Goldy |
Applicant
And
| Ms Goldy |
Respondent
REASONS FOR JUDGMENT
This is a matter which has been in the Magellan list for a considerable period of time. It is a matter which concerns the welfare of three children.
The Court has made orders by way of directions with a view to preparing the matter for final hearing. The matter has been listed to commence for six days before me this morning. The orders in relation to the preparation of the matter for trial have not been complied with on time; however, material is now before the Court which may have enabled the Court to proceed to hear the matter to a conclusion this week and next week.
However, at the commencement of the trial this morning counsel for the mother informed the Court and counsel for the father and the Independent Children's Lawyer that the mother was seeking an adjournment of the trial in order to obtain independent legal advice in relation to the ongoing representation by her present solicitor and, as a result, no doubt, instructed counsel. That was based upon the information available to the mother this morning that earlier this week the mother’s solicitors forwarded to the father’s solicitors, without her instructions, material in relation to a motor vehicle accident claim proceedings including experts’ reports.
The mother now seeks an adjournment of the trial in order to consider her ongoing legal representation. This is an unusual matter both in relation to the issues to be determined and in relation to the request for the adjournment. If the information was only made available to the mother this morning then that is an explanation for the late application.
Regrettably, when considering the request for the adjournment it is a question of balancing both the best interests of the children (which would obviously suggest that the trial proceed as soon as possible) but at the same time the need to ensure that justice is done to each of the parties so that the matter is heard in a manner which complies with the rule of law.
In these circumstances, therefore, I note that the father’s counsel do not take any position about the adjournment save and except a desire to be heard on the question of costs.
The Independent Children's Lawyer’s counsel has correctly pointed out the matter has been plagued by difficulties in relation to listings and compliance with the orders of this Court and difficulties in relation to the arrangements for a specialist expert witness coming from interstate. The Independent Children's Lawyer also seeks an order for costs thrown away for the six or seven days set aside for trial.
Bearing in mind the factors to which I have referred, I regret that it appears there is no alternative other than to adjourn the trial and I therefore adjourn the final hearing of the trial to the 10 days commencing 27 June 2011 (when counsel have indicated that counsel for the father and Independent Children's Lawyer will be available).
It has been requested that I list the matter before me for mention on Tuesday morning to ascertain the progress of the matter. That is obviously less than a week, Monday being a public holiday. I am prepared to list it at that time; however, I will hear from counsel in a moment as to whether the Wednesday or Thursday of next week might not be a more suitable listing to ascertain the progress of the matter.
Counsel for the mother is opposing the order for costs.
I perceive a difficulty in relation to counsel for the mother arguing the question of costs today due to the unusual position of the instructing solicitor in this matter where there may be a clear conflict of interest in relation to the end result of any cost orders. Consideration might be given if another solicitor is instructed by the mother to put a different argument to the Court as to who should be responsible for the costs thrown away. I therefore do not propose to determine the issue of costs but will also adjourn that to next week for consideration of the progress of the matter in order to allow further consideration to be given to the submissions concerning costs.
It is clear, however, that there will need to be further material put to the court as to the basis upon which the disclosures were made to the father’s solicitors. Significant in this argument in relation to costs is the independent role of the Independent Children's Lawyer and counsel who have clearly incurred significant costs. I will not say anything more at this stage because I want to hear further argument as to the order for costs; against whom it should be made or might be made and the discretion for the court to fix a period for which the costs could be considered thrown away, namely whether indeed the costs are thrown away for the whole of the listings for this next six days.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 10 March 2011.
Associate:
Date: 15 March 2011
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