Parmenter & Louwen (No 2)
[2023] FedCFamC1F 918
•12 June 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Parmenter & Louwen (No 2) [2023] FedCFamC1F 918
File number(s): CSC 452 of 2021 Judgment of: JARRETT J Date of judgment: 12 June 2023 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Adjournment application – Cross-examination prohibited pursuant to s 102NA – Where respondent appeared three months prior and sought an adjournment of the trial because he had not been appointed a lawyer for the purposes of s 102NA – Where further application for adjournment sought on first day of trial – Where no evidence that the respondent had taken reasonably prompt steps in that time to engage legal representation pursuant to s 102NA – Adjournment refused Legislation: Family Law Act 1975 (Cth) s 102NA(2) Division: Division 1 First Instance Number of paragraphs: 13 Date of hearing: 12 June 2023 Place: Cairns Counsel for the Applicant: Mr Raeburn Solicitor for the Applicant: Preston Law Solicitor for the Respondent: Litigant in person ORDERS
CSC 452 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS PARMENTER
Applicant
AND: MR LOUWEN
Respondent
ORDER MADE BY:
JARRETT J
DATE OF ORDER:
12 JUNE 2023
THE COURT ORDERS THAT:
1.The application for the adjournment is refused.
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 a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JARRETT J:
On 7 March this year, I attempted to have a trial of these proceedings. On that day, the respondent appeared represented by a solicitor and counsel and sought an adjournment of the proceedings. The solicitor and counsel were briefed for the purposes of the adjournment only. The transcript reveals that whilst the respondent’s trial material had been filed, there were some many documents that the solicitor and counsel said they needed to consider before a trial could be run. There was also an issue about the service on the respondent of some directors’ penalty notices from the Australian Taxation Office. In the result, on that day, I was persuaded - reluctantly, as Mr Raeburn says - to grant the adjournment sought by the respondent.
During the course of the argument, the following exchange took place between me and counsel for the respondent. I said:
Well, how long do you say, if there is to be an adjournment, [Mr NN], should it be for?
Counsel said:
Your Honour, assuming the funding can be made available, there is certainly at least -
My response was:
No, I’m not adjourning it to get funding. I’m adjourning it for there to be a 102NA lawyer appointed because that is a certainty.
Counsel then said:
Well, then, your Honour, on my experience of 102NA appointments, it would be approximately eight weeks.
So consistently with the submissions made by counsel for the wife before me now, the proceedings on 7 March, 2023 were adjourned for the purposes of the respondent obtaining representation under the cross-examination scheme because s 102NA(2) of the Family Law Act 1975 (Cth) was engaged. That subsection was engaged by an order made by a judge of the Federal Circuit and Family Court of Australia (Division 2) sometime last year. That order remains in place and there has been no application to set it aside. Accordingly, the respondent and the applicant are prevented from cross-examining each other personally. Any cross‑examination must be conducted by a legal representative.
The basis of the application for the adjournment before me now, set out in the application in a proceeding filed by the respondent on 9 June, 2023 is that whilst he had a lawyer appointed for him last Friday, the lawyer withdrew. His affidavit sets out correspondence dated 8 May, 2023 from a firm called PP Lawyers. It says that:
Today, we have been appointed by Legal Aid to act on your behalf in relation to your family law matter under the -
[Sit down, sir.]
...under the cross-examination scheme. Given the final hearing takes place on 12 June 2023, it is rather a very short time within which certain steps must be taken. We do not yet have access to your file on the portal. We have filed a form, notice of address for service. When accepted we will have access to the documents filed by you and your former partner.
In his affidavit and from the bar table, the respondent contends that the letter from the lawyer to which I have just referred is misdated and, in fact, it was received by him on 8 June, 2023. There is no evidence from the lawyer before me and the reference in the body of the letter to 12 June, 2023 notwithstanding the date of 8 May, 2023, tends to suggest that there is no typographical error. Against that proposition, however, is that a notice of address for service was not filed by those solicitors until 8 June, 2023. That seems to be consistent with the content of the letter and if the letter was in fact sent on 8 May, 2023 then there seems to have been an inordinate delay on the part of the lawyers in getting onto the record. The filing of the notice of address for service on 8 June, 2023 is probably more consistent with there being a typographical error in the date on the letter. I am therefore prepared to accept that the letter was received by the respondent on 8 June, 2023.
On the following day, by email, PP Lawyers write to the respondent and said this:
There was some mix-up about the trial dates. We were given to understand that it was a one-day trial, but now we know it is a three-day trial, and neither the barrister nor I am available for three days at this stage, so Legal Aid has appointed a new law firm to represent you. You should hear from them soon. Sorry about this mix-up. Hope all goes well with your case. Best of luck.
Those lawyers have not removed themselves from the record of this Court and there was no appearance by them this morning when the matter was called. Their discourtesy and unprofessional conduct is a matter of significance, for were it the case that they were before me, some more information might be able to be shed on this matter which might allow me to more fully understand the factual matrix relied upon by the respondent. There is no evidence before me either that any new law firm has contacted the respondent. I do not know whether it has or it has not.
Critically, however, there is a question about when the appointment of the s 102NA lawyer was pursued by the respondent. During the course of argument this morning, I asked the respondent when he applied for that lawyer and he told me that it was “months ago”. I told him that I was not prepared to take anything that he said to me from the bar table at face value, this being a court and a court acting on evidence, and so he offered to obtain documents that demonstrated what it was that he was saying. The documents have been produced – they are exhibit 1 before me now – but they do not demonstrate what the respondent was telling me at all. Those documents refer only to a criminal prosecution. He has apparently been charged with some offences and on the basis of what he does say from the bar table, apparently there is a trial or some other proceeding in some other court in relation to those things today. But the documents do not demonstrate that he made any application or approach to Legal Aid for a s 102NA lawyer “months ago”.
The process for obtaining a s 102NA lawyer is not one whereby a party to the proceedings makes application for such, as I understand it. The process, as I understand it to be, is that the court makes an order or gives notice that a matter is subject to s 102NA(2) of the Act. That notice is given to the Legal Aid Queensland, who is a party to some agreement with the Commonwealth for the provision of legal services in return for funding from the Commonwealth for the provision of those services, and so, once given notice that s 102NA(2) is engaged in a particular case, Legal Aid Queensland contacts the parties concerned to organise that representation. That seems to be what occurred in this case some time ago.
Submissions made on 7 March, 2023 by counsel for the applicant and reiterated by him today without any suggestion that they were inaccurate, either by counsel for the husband on 7 March, 2023 or today by the respondent, was that the respondent had a s 102NA lawyer appointed to him in October last year. That appointment was made after an order was made by Judge Cope in October, 2022. The appointment of a lawyer was made on 17 October, 2022. That lawyer apparently was sacked by the respondent however, and some lawyers that had previously acted for him on a paid basis were re-engaged. As was suggested by counsel for the applicant, those matters are reflected in the Court’s records by reference to notices of ceasing to act and notices of acting. For reasons that are not now particularly relevant, the private lawyers, if I might use that term, again ceased to act but then, on 7 March, 2023 there were solicitors and counsel engaged by the respondent, as I have already indicated, for the purposes of the adjournment application.
So, it is clear that Legal Aid has been fully aware of this application since October last year. There is no explanation in the material before me as to why the engagement of a s 102NA lawyer was not pursued after 7 March, 2023 with Legal Aid. Whilst the toings and froings last week with the lawyer are curious, none of those matters, though, go to explain the lapse since 7 March, 2023 and the late engagement of those lawyers. Procedural fairness is a two-way street. Parties who often complain of a lack of procedural fairness are asking courts to do things which will visit procedural unfairness on the other party. Here, the other party has come to Court - this will be the second time - ready for a trial with counsel.
Costs were reserved on the last occasion, and again, the respondent does not offer any adjournment on terms that he pay the applicant’s costs thrown away by the adjournment. In those circumstances, I am not satisfied that allowing him yet further time to secure a lawyer under the cross-examination scheme or otherwise is appropriate.
That will mean, of course, that he is not able to cross-examine the applicant in these proceedings, but that is the effect of the law.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jarrett. Associate:
Dated: 25 October 2023
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