Papp and Myers (No 2)

[2019] FamCA 825

FAMILY COURT OF AUSTRALIA

PAPP & MYERS (NO. 2) [2019] FamCA 825

FAMILY LAW – PRACTICE AND PROCEDURE – Where the mother sought an adjournment application for a final hearing – where the mother had a grant of legal aid – grant termination – where the mother has altered legal representation on a number of occasions – where the final hearing was less than one month away – where there was an expert report which would go stale if the Application was granted – Application dismissed.

Aon Risk Services Limited v Australian National University [2009] HCA 27

APPLICANT: Mr Papp

RESPONDENT: Ms Myers

INDEPENDENT CHILDREN’S LAWYER: JLM Family Lawyers Pty Ltd

FILE NUMBER: SYC 5372 of 2018

DATE DELIVERED: 31 October 2019

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Harper J

HEARING DATE: 31 October 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr White SC

SOLICITOR FOR THE APPLICANT: Michael Conley Lawyers

COUNSEL FOR THE RESPONDENT: Mr Manning Solicitor Advocate

SOLICITOR FOR THE RESPONDENT: Manning Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Newland

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: JLM Family Lawyers Pty Ltd

Orders

1. The Application in a Case seeking an adjournment of Final Hearing dates on 27  and 28 November 2019 and filed on 29 October 2019 be dismissed.

2. The time for the Respondent Mother to file and serve her trial affidavit be extended up to and including the close of Registry filing on 15 November 2019.

3. The listing date 11 November 2019 for compliance check be vacated.

4. The matter be listed on 18 November 2019 at 10:00am for a compliance check.

Notations

1. The Final Hearing dates of 27 and 28 November 2019 are confirmed.

2. Application may be made by any party to appear by telephone on 18 November 2019.

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 Papp & Myers 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: SYC 5372 of 2018

Mr Papp

Applicant

And

Ms Myers

Respondent

REASONS FOR JUDGMENT

1. These are oral reasons for judgment in proceedings SYC 5372 of 2018.  These are parenting proceedings as presently constituted, concerning the child X, born in 2015 (“the child”).  The parenting aspect of the proceedings is currently listed for final hearing on 27 and 28 November 2019. 

2. The matter came before me on 14 August 2019, on which occasion the respondent mother appeared for herself. During the course of a lengthy mention the mother applied for an adjournment of the proposed final hearing dates on the basis that she needed time to obtain legal representation and prepare her Affidavit evidence with the support of a grant of Legal Aid. 

3. My own observation of the mother was that she was an intelligent and articulate person who was quite capable of putting forward her arguments in a coherent fashion.  On 14 August 2019, the mother, a number of times, stated that she had Affidavit evidence which was almost complete, and that she just needed a lawyer to put the evidence together.  At one point, for example, she told me that she had her draft Affidavit ready on her phone and was therefore in a position to finalise it very quickly.

4. On 14 August 2019, I was not satisfied that the final hearing date should be altered or that any adjournment of the final hearing should be permitted. One of the factors which influenced my thinking at that time was the existence of a single expert’s report which was issued in February 2019. Experience suggests that when parenting matters are allowed to drift, it imposes additional burdens upon the parties and ultimately the child, by the need for updated expert reports to be obtained. In my view, it is highly desirable for a final hearing to take place in its close temporal proximity to the date of a single expert’s report as possible.

5. The matter was listed by the Court on 31 October 2019 on the basis that the mother contacted Chambers and expressed her wish to make another adjournment application of the final hearing dates. In accordance with that intention, an Application in a Case seeking orders for the adjournment of the final hearing dates was filed by Manning Lawyers on behalf of the mother, with an Affidavit in support. The Court listed the matter for mention or hearing of the adjournment Application on 31 October 2019. On that occasion the mother was represented capably by Mr Manning, who had been brought into the matter at short notice, and Affidavits sworn by Mr Manning and the mother were read and relied upon. 

6. The applicant father in the proceedings was represented by Senior Counsel who provided a helpful Case Outline, together with an Affidavit of Ms H, affirmed on 30 October 2019.  The Exhibit to Ms H’s Affidavit was marked Exhibit “A” on the application for adjournment. 

7. It is undisputed that between 14 August 2019 and 31 October 2019, the mother did indeed engage G Lawyers to represent her and correspondence provided in the evidence relied upon by the father demonstrates that there was a number of letters passing between the solicitors for the father and the then solicitors for the mother. One of those letters, dated 25 October 2019, from the mother’s solicitors to the father’s solicitors confirmed that the mother’s Affidavit was drafted and would be ready to be filed on Monday, 28 October 2019, that is, in accordance with the trial directions made by the Court. 

8. It appears that between 25 October 2019 and 31 October 2019, the mother’s then existing grant of Legal Aid was terminated and G Lawyers ceased to represent her. 

9. No affidavit in a final sworn form has been filed by the mother, and that was one of the bases upon which Mr Manning relied heavily in his submissions contending that an adjournment was appropriate in the circumstances.

10. I note here that when the matter was first called before me on 14 August 2019, the mother had representation by a solicitor who was appearing on the basis of the then existing grant of Legal Aid. Shortly after the hearing commenced on 14 August 2019, the mother terminated the retainer of that solicitor and continued to appear for herself. One cannot help but observe there appears to be something of a pattern of the mother retaining and then terminating legal representation. However, I am insufficiently apprised of the details behind that pattern of behaviour to draw any clear inference from it.

11. However, it is beyond doubt that the mother has known since at least 14 August 2019 that there would be a final hearing concerning her child on 27 and 28 November 2019. It is also clear from the transcript of 14 August 2019 that the Court made it very clear to the mother that she needed to focus very carefully upon the preparation of her Affidavit material. I am comfortably satisfied that attention has already been given to the preparation of Affidavit material in support of the mother’s parenting case, but that for unspecified reasons that has not been completed. 

12. When I say unspecified reasons, the mother gave evidence that G Lawyers required a payment of $15,000 before releasing the draft Affidavit to any new solicitors or to the mother. That may well be true, but it is not clear to me at all why the mother is not able to prepare Affidavit material in time for the final hearing on 27 and 28 November 2019, which is still just under a month away.  It is not clear to me either why there has been a termination of solicitors representing the mother in circumstances where she has had a grant of Legal Aid, but that grant has itself now been terminated. 

13. Mr Manning made reference to the High Court decision in Aon Risk Services Limited v Australian National University [2009] HCA 27, for the purpose of focusing on the question of prejudice. He contended that the prejudice to the mother would far outweigh that to the father, who really only faced the prejudice in the nature of costs and perhaps a short delay in the resumption or the allocation of new final hearing dates. I do not accept that submission.

14. I am persuaded by the submissions of the Independent Children’s Lawyer that further delay in the final determination of these proceedings is not in the best interests of the child, particularly in light of the existence of Ms D’s expert report which is presently less than a year old, and the Court should be in a position to act upon it as soon as it possibly can. 

15. The Independent Children’s Lawyer also submitted that it appeared that the father was not actually spending time with the child in accordance with existing interim orders. This was inimical to the opinion of Ms D, that the child should be spending regular time with the father, even on an interim basis.  What was missing from Mr Manning’s reference to Aon Risk Services Limited v Australian National University [2009] HCA 27 was an acknowledgement that the High Court also makes clear that case management considerations, including the reasonable and just claims of other litigants to judicial time in this or any other Court, is an important factor to be taken into account.

16. It is simply not possible to vacate a final hearing even if it is relatively short, in the nature of two days, and allocate fresh dates a short time later in this Court where there are hundreds of cases which require judicial time and in which the circumstances might be described as more urgent and involving extremely distressing situations of domestic violence or high danger to children. This is a case where neither party makes any allegation of risk factors. 

17. Accordingly, I am not satisfied that the final hearing should be adjourned. I do not perceive any of the evidence and submissions made that the best interests of the child have been kept firmly in the forefront of the mind of the mother in her assertions that it was more in the interests of justice to vacate the final hearing dates than to retain them.  Accordingly, I dismiss the mother’s application filed on 30 October 2019.  I note that the final hearing dates of 27 and 28 November are confirmed. 

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Harper delivered on 13 November 2019.

Associate: 

Date:  13 November 2019