RENNICK & RENNICK

[2009] FamCA 1146

FAMILY COURT OF AUSTRALIA

RENNICK & RENNICK [2009] FamCA 1146

FAMILY LAW – PROCEDURAL – Adjournment application – Loss of legal representation – Father’s failure to take appropriate steps – Interests of mother, children and other litigants – Application refused

APPLICANT: Mr Rennick

RESPONDENT: Ms Rennick

INDEPENDENT CHILDREN’S LAWYER: Kendall Hawdon

FILE NUMBER: BRC 3108 of 2007

DATE DELIVERED: 26 October 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Jordan J

HEARING DATE: 26 October 2009

REPRESENTATION

THE APPLICANT: Appeared in person

SOLICITOR FOR THE RESPONDENT: Mr S Fisher, Solicitor, Neumann & Turnour Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr J Selfridge

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Forest Glen Lawyers

IT IS NOTED that publication of this judgment under the pseudonym Rennick & Rennick is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER:  BRC 3108 of 2007

MR RENNICK

Applicant

And

MS RENNICK

Respondent

REASONS FOR JUDGMENT

EX TEMPORE

1. In this matter, the father makes application for an adjournment of the trial.  This matter is listed for three days before me.  The matters in issue relate to the parenting and care arrangements for two children:  C, who has just turned 10, and K, who is four years of age.

2. The parties separated in 2006.  At that time, they were resident in G.  The mother moved to N at the time of separation and the father instituted proceedings in relation to both the care arrangements and where the children should reside.  Those matters have been the subject of protracted litigation which, in turn, has, amongst other things, placed strains upon the finances of the father.  I am unaware of the wife’s arrangements in relation to her past and present legal fees. 

3. In any event, the matter was before me in February 2009 and on 3 April 2009, the matter was listed for trial.  At that stage, the trial was to be early November 2009.  On 20 May 2009, the matter was subject to further directions which advanced the trial date by a fortnight, I gather, to today, 26 October 2009.  The father’s application is based largely upon his lack of legal representation. 

4. The father says that he has recently had a disagreement with his previous solicitors about fees.  Exhibit 1 discloses that on 6 October 2009, the previous solicitors on the record, Condon Charles Lawyers, filed a Notice of Ceasing to Act.  Necessarily, of course, that decision to file a notice of discontinuance would have been taken only after the father and Condon Charles had been in discussion about the solicitors’ capacity to continue to act and their need to be placed in funds.  It also follows from that, that the father has been alerted to this difficulty for, it would seem, some time well prior to 6 October. 

5. In any event, the father says that the reality for him is that he is without legal representation.  He wishes to present a case.  He maintains that it is in the children’s best interests to return to reside in G and he wishes to have the opportunity to properly prepare and present such a case.

6. The mother opposes the adjournment application.  She is anxious to have the matter heard and determined.  Her material indicates that she is currently pursuing career study and employment opportunities and her capacity to do so is compromised by the uncertainty surrounding this litigation. 

7. Mr Selfridge of Counsel, instructed by the Independent Children’s Lawyer, indicates that their position is that they neither support, nor oppose the adjournment application made by the father.

8. In considering adjournment applications, I am obliged, of course, to consider the interests of the parties and the interests of justice. 

9. The father’s position is, of course, an important one and his rights need to be carefully considered.  He has a right to be heard and a right to present a case.  Of course, that right was recognised by the orders made on 3 April 2009 and 20 May 2009 in relation to preparation for trial.

10. The father was required by those directions to file material by 18 September 2009.  Having regard to Exhibit 1, I suspect that it was as that date approached that the solicitors for the father were in negotiation with him about their retainer.  Exhibit 1 indicates that the father is in debt to that firm and previous counsel to the extent of approximately $50,000. 

11. The reality of life at the moment is that so many litigants, who would much prefer to be represented by lawyers, find themselves in a position where they are unable to fund that exercise, with the consequence that they have no option other than representing themselves.  A very large percentage of children’s cases in the Family Court and Federal Magistrates Court are conducted by parties without the benefit of legal representation. 

12. I note that the matter was listed for trial as far back as April 2009 and the question of legal fees was obviously a reality on 3 April, as it was in the lead-up to September. 

13. The father has indicated that he is in poor financial circumstances, wherein he is not only unable to pay his lawyers, he is unable to provide regular financial support for the children.

14. That being the case, the father is faced with the reality that, to the extent I can judge it, it is going to continue to be somewhere between difficult and impossible for the father to pay for lawyers to represent him.  He may not, and probably will not, have access to his file until such time as he finds $50,000 to pay his previous lawyers, and then he would have to put any new lawyers in funds sufficient to meet the preparation costs and the costs of trial which, one would anticipate, could be many thousands of dollars. 

15. The father has not said anything to me in the course of submissions this morning which would give one any optimism about the father’s capacity to find and pay tens of thousands of dollars to his previous and new lawyers.  As a consequence, I am very concerned that an adjournment may not secure to the father what he says the adjournment is necessary for, and that is, to secure legal representation. 

16. I note that this matter has not been the subject of any application for an adjournment prior to today’s date and no notice was provided to the Court about an intended application for an adjournment.  The cases presented by the mother and the Independent Children’s Lawyer appear, on their face, to be prepared and presented in the absence of any understanding that the matter was to be the subject of an adjournment application.

17. Having so far directed my attention to the father’s position, I take the view that the mother’s right to have this case heard and determined is no less compelling.  The parties separated three years ago.  They have been in constant litigation and, therefore, a state of uncertainty over that period.  In this case, we are dealing with two young children who are necessarily affected by their parents’ ongoing conflict and I am obliged, amongst other matters, to have regard to the interests of the children in hearing and determining adjournment applications. 

18. In this matter, in addition to the broad inherent concerns one has about the adverse impact of unresolved litigation upon children, I also have the more direct evidence on that point which emerges from the report of Ms B.  At paragraph 21, C, who has just turned 10, is saying to the Court through the Family Consultant:

    “She just wanted all ‘the court stuff’ to finish and didn’t want to talk to people about her parents any more.  She was particularly concerned about saying things about her father in interview.”

    And paragraph 24:

    “[C] reported that her parents don’t talk to each other and that this makes her feel sad inside and ‘I don’t know what to do.  I love both my Mum and Dad and it’s really awkward.’”

19. C has said elsewhere that she likes living in N.  She wants to stay in N.  She would be sad if she had to live in G.  She states that she has lots of friends and that there are lots of fun things to do in N.  Of course, those latter points may be the subject of some dispute from the father, but the combination of those comments and observations enable me to conclude as a fact, that, in addition to inherent concerns, I here have a 10-year-old child who is expressly aware of the ongoing litigation and asks this Court to make a decision and to bring it to an end so that she can get on with her life. 

20. In addition to the parties and their children, in considering an adjournment application, I am also obliged to have regard to the interests of other litigants.  If this matter is adjourned, I will be out of Court for three days.  This matter will go back into the trial list and it will occupy the time of myself or another Judge for three days at some time in the future.  That has the effect of delaying the hearing of other cases with other children and families in crisis or instability, who are awaiting the allocation of the very limited financial resources of this Court.

21. Those considerations indicate that, on the one side of the balance sheet, I have the interests of the father pointing in one direction.  On the other side of the balance sheet, I have the interests of the mother, the children and other litigants all pointing against an adjournment. 

22. In further weighing up those competing considerations, I take account of my observations of the father before me this morning.  I accept that he is not a lawyer, he is a builder, and would be as uncomfortable in Court as lawyers might be trying to construct a building.  Nevertheless, that is a fact of modern litigation.  My observations of the father are that he is a capable speaker.  He has demonstrated in the short exchanges with the Bench that he has an appreciation of the matters in issue and the matters that are important to him, including an appreciation of the progress of the various Family Consultants’ reports.  I am satisfied that, although it will be difficult, the father is able to address the Court and address issues and do his best to present a case.

23. I am concerned that the father has, for a number of weeks, failed to put in place any contingency plans to put material before the Court in the event that his adjournment application is unsuccessful.  The wife and the other interested parties should not, in my view, be prejudiced as a result of the father’s failure to take some alternate steps to put together some part of his case.

24. In the end result, I have decided that I should not grant the adjournment application. 

25. My inclination would be to proceed with the matter forthwith.  However, in acknowledgement of the difficulties the father finds himself in and, notwithstanding that it appears that, to some extent, he has failed to take adequate steps to address some of those matters, I propose to give the father the rest of today to peruse the wife’s material and to gather his thoughts for the purposes of the presentation of his case tomorrow, which will include cross-examination and the like.

26. Subject to any submissions that might be made to the contrary, notwithstanding that the father has not filed any material, I would propose to give him the opportunity to enter the witness box first thing tomorrow morning to give any evidence he intends to rely upon orally.  That would give him the opportunity to answer any matters set out in the mother’s affidavit material.  The father will need to appreciate that, once he has completed that exercise, he will be cross-examined by the solicitor for the mother and Counsel for the Independent Children’s Lawyer, and he will then have the opportunity himself to cross-examine the mother and any of the other witnesses to be called in this case.

27. I am comforted in my decisions by the knowledge that, in this case, there is a legal representative for the children who is also available to cross-examine witnesses and to ensure that all relevant matters to be considered are canvassed adequately before the Court. 

28. I propose to stand the matter over to 10 o’clock tomorrow.  I do need to indicate that some people in this Court would be aware of my personal circumstances, which include limited future availability.  We will have to endeavour to conduct the case within the remaining two days.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Jordan

Associate: 

Date: