Richards and Young

[2009] FamCA 53

FAMILY COURT OF AUSTRALIA

RICHARDS & YOUNG [2009] FamCA 53

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournment – whether part-heard hearing should be adjourned – applicable principles – relevant facts

Family Law Act 1975 (Cth)

Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146
 Cheung v R (2001) 209 CLR

 Reynolds v Reynolds (1973) 1 ALR 318

APPLICANT: Mr Richards

RESPONDENT: Ms Young

INDEPENDENT CHILDREN’S LAWYER: Legal Aid Commission of New South Wales

FILE NUMBER: BRF 3190 of 2005

DATE DELIVERED: 2 February 2009

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: The Hon. Justice Rose

HEARING DATE: 2 February 2009

REPRESENTATION

APPLICANT (IN PERSON): Mr Richards

COUNSEL FOR THE RESPONDENT: G Waterman

SOLICITOR FOR THE RESPONDENT: Delaney & Delaney

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: J Lloyd

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: K Beckhouse

Orders

1. That the Application for an adjournment filed by the father on 29 January 2009 is dismissed.

2. That the oral application made by the father for a “stay” is dismissed.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: BRF 3190  of 2005

MR RICHARDS

Applicant

And

MS YOUNG

Respondent

REASONS FOR JUDGMENT

Introduction

1. By his Application filed 29 January 2009 the father in the proceedings seeks an adjournment of the continuation of the hearing of the consolidated proceedings in which orders are sought by the parties by way of parenting orders and property settlement.

2. The principal order sought by the father pursuant to his application is in the following terms:

   “That the dates for the hearing of the final trial for this LAT be vacated and that the matter be adjourned until such time as the applicant has proper legal representation.”

3. In response to the question I raised with the father and to which reference had previously been made at the commencement of the proceedings today by me and by counsel for the mother in the course of his submissions, I was informed by the father that the period of time sought for the adjournment would be five months.

4. The Application for Adjournment is opposed by the mother.

5. Counsel for the independent children’s lawyer informed me that his instructions are that the preference would be for the hearing to continue but otherwise submitted to the court’s order.

6. The grounds for seeking the adjournment are essentially that the father has been unsuccessful in obtaining legal representation having sought to give instructions to a number of lawyers since September 2008 and that his difficulties in that regard were compounded by the alleged inefficiency of staff at the Legal Aid Commission.

7. So far as a succession of lawyers are concerned, according to the father’s Affidavit sworn on 29 January 2009, one or more of such lawyers did obtain preliminary instructions but either did not carry out those instructions or, otherwise upon further consideration declined to represent the father any further and in particular to carry out the necessary preparation and to be instructed to appear for him at this hearing.

Relevant procedural background

1. The relevant procedural background to these proceedings is as follows.

2. On 5 March 2008, having completed day one of the hearing in accordance with the Less Adversarial Trial procedure and the matter not resolving, I made directions for hearing of an application for interim orders as well as noting various agreements that had been reached to further communication between the parties.

3. On 24 April 2008 I adjourned an application of the father to 30 April 2008 on a part heard basis to determine the periods of supervised time that the father should spend with the three children, the subject of the proceedings.  I made orders in relation to the payment of the then child expert’s fees.

4. On 30 April 2008 I made interim parenting orders which provided for the father to have supervised periods of time with the children. He was restrained from engaging in certain activities which include but not limited to filming or recording the children’s reactions or their activities whilst with him.

5. On 27 May and 5 June 2008 Registrar Chayna made further directions.

6. On 16 June 2008 I made orders inter alia that the previous order which appointed single expert Dr E, Psychiatrist be discharged and in lieu the current single expert Dr L, Psychiatrist was appointed. Directions were made for the preparation of a report in relation to certain designated matters.

7. On 28 August 2008 following hearing submissions from the legal representatives for the parties I noted the issues for determination on the subsequent hearing of the proceedings and made further directions.  I noted the witnesses who would be relied upon by each of the parties.  I made directions in relation to the pending property settlement proceedings and stood the matter over to consider further case management directions that may be required as well as to fix the dates for continuation of the hearing.

8. I note that, at that point, I had indicated that I would hear both the parenting proceedings and the property settlement proceedings together, implicitly, to ensure that all litigation between the parties that was then pending could be heard and determined, rather than have certain proceedings completed and the parties be engaged in continuing litigation in relation to other matters.

9. On 23 September 2008 I made directions in relation to the filing and service of affidavits with respect to both the parenting and the property settlement proceedings. I fixed the continuation of the hearing of the parenting proceedings consolidated with the property settlement proceedings for five days commencing 10.00am today, 2 February 2009.  I granted liberty to apply, to set aside or vary all or any of the directions that I made upon seven days written notice being given.

Application for adjournment

1. My approach to the question of the adjournment sought by the father seeks to follow the principles that have been enunciated in some detail in past leading High Court judgments as well as taking into account Family Law Rule 16.12.

2. So fas as that Rule is concerned it requires a party seeking to vacate a trial date to do so at the earliest possible time prior to the date fixed for trial and that adjournment should be granted or vacating of a trial date only in “exceptional circumstances.”

3. I state now that I consider that that Rule is by way of guidance only and is not binding having regard to the dicta provided by the High Court particularly in Queensland and J L Holdings Proprietary Limited[1] and Cheung v Queen[2]  in which the issues for consideration so far as adjournments are concerned and amendment of pleadings are set out in considerable detail.

   [1] Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146

   [2] Cheung v R (2001) 209 CLR 1

4. In following the judgments in those cases I particularly note the following:

   (a)That the court has a wide discretion so far as an Application for Adjournment is concerned.

   (a)      That amongst the matters to be taken into account are:

   (i)       the reasons for the adjournment;

   (ii)      the period of delay in making the application;

   (ii)any prejudice or disadvantage to the other party which cannot be compensated for by way of costs; and

   (iv)in particular, that an important consideration is to justice between the parties.

5. There are a number of matters to be taken into account in that regard which include also:

   (a)      Prejudice to the applicant;

   (b)The period of time that might elapse before a new hearing date can be found which is suitable to the court and taking into account the commitments of the parties; and

   (c)Also in more recent times, the proper employment of the court’s resources given the notorious delay that occurs from time to time in this court and which is particularly prevalent at the present time whilst  consideration is being given by Government as to the merger of Family Law services and the manner in which resources should be made available in the interests of both the court, the litigants and, implicitly, their children in dealing with continuing litigation.

6. Efficient conduct of litigation is a matter which may attract weight in a given case, but does not depreciate the need to provide the administration of justice in a manner which does not deny procedural fairness to both parties.

7. It is important to note that those cases and the general principles which are set forth are in proceedings in which there has generally been a commercial dispute or in some cases a criminal trial.

8. As was remarked upon a long time ago by a former Chief Justice of the High Court, Justice Mason in Reynolds v Reynolds[3] parenting proceedings in particular involve consideration of persons who are not parties to the proceedings. They are the children of the parties about whom parenting orders are sought.

   [3] (1973) 1 ALR 318 at 323

9. Consequently, in my view, I should take into account the potential effect of continuation of litigation in terms of whether it is in the best interests of the children to these proceedings that the hearing set down for this week should be adjourned for five months.

Conclusion

1. I have concluded that the application made by the father will be dismissed.

2. My reasons for doing so are as follows.

3. The basis for seeking the adjournment is, as I have previously referred to, the husband’s inability to obtain a prompt resolution of his Legal Aid application and to be able to retain lawyers who will accept and carry out his instructions consistent with their responsibilities as officers to the court and their other ethical responsibilities.  His affidavit indicates that he has sought to give instructions for those purposes to at least four firms of lawyers with limited success to the point where he today appears unrepresented, as the last firm of solicitors who were prepared to receive instructions during January 2009 are no longer prepared to do so.

4. That matter, by itself, is a strong basis for an adjournment being granted.  However, there are other matters which I consider have considerable weight and which ultimately, on balance, overcome the weight which I would attach to the difficulties that the husband has experienced in obtaining legal representation for the purpose of being represented in these proceedings.

5. The parties to these proceedings have been engaged in litigation in this court whether in the Brisbane Registry or in the Sydney Registry since during 2005.

6. Those proceedings have been principally concerned with parenting orders that should be made in the best interests of their three children.

7. Indeed parenting orders were made on a final basis in the Brisbane Registry by Justice Coleman on 3 November 2006.  Those orders were made following the conclusion of the defended hearing which occupied some five days commencing 25 September 2006.

8. Within a period of six months further proceedings were then instituted.  Those proceedings came before Justice Barry in the Brisbane Registry and further orders were made.

9. Ultimately, on 17 May 2007 a Recovery Order was made on the application of the mother and on that day a warrant was ordered to be issued to the Australian Federal Police and State and Territory Police Forces to arrest the father and bring him to court 25 May 2007.  Further orders were then made.

10. Interim property settlement orders have also been made in the Brisbane Registry during 2007.

11. The proceedings before Justice Barry, in particular, and Justice Bell to which I have referred were against a background of the father having allegedly absconded with the three children from Queensland and found approximately six weeks later by the police in Tasmania.

12. Some two months later, a similar incident allegedly occurred, but thankfully for one day only in Queensland and matters were brought to a resolution following engagement by the police.

13. An expert’s report has been prepared by Dr L. He outlines the issues based upon his observations of the parties and obtaining the relevant history from them.

14. I have been acutely conscious of the need to bring this litigation to an end at the earliest practical time.

15. Consequently, whilst there have been both parenting proceedings and property settlement proceedings, it seemed to me that it was in the interests of the parties, as well as their children, quite apart from a better utilisation of court resources, for both proceedings to be consolidated, precise directions given in terms of further affidavit evidence that may be filed and served and fixing hearing dates sufficiently in advance to take into account not only the short break over Christmas, but also to allow for proper preparation and for the hearing to resume before me having regard to other court commitments.

16. Consequently, a period of about four months was provided to enable the parties to be prepared and ready to proceed.

17. The mother has complied with directions and is ready to proceed.

18. The father, of course, contends that he has been unable to do so through no lack of attention on his part.

19. However, the father is a person who is experienced in litigation in this court.  It must have been obvious to him with that experience and being, clearly to me, an intelligent, educated and articulate man, that once a certain point had been reached where his efforts for legal representation had not produced the results which he hoped for, then preparation was necessary to be carried out by him as best as his could notwithstanding that he would then proceed to a hearing on an unrepresented basis.

20. It is a sad situation that so far as civil litigation is concerned and perhaps in the criminal jurisdiction as well, there has been an increase in the number of litigants who are unrepresented.

21. The father has particular experience in that regard having represented himself if for not for the whole of the hearing before Justice Coleman in the latter half of 2006, then for at least part of that time.

22. Much weight has been placed by him upon voluminous material that would need to have to be read, analysed and absorbed for the purpose of the hearing before me.

23. I do not doubt that there has been or is considerable material which does need to be read and reflected upon.  However, I am not sitting as a court of appeal in relation to orders made by Justice Coleman on 3 November 2006.  Those orders are final orders, so far as it is possible to have final orders in parenting proceedings.

24. Consequently, the material which is relevant is material in relation to events that have occurred subsequent to the orders made on 3 November 2006.

25. If implicitly there is a reference to much material prior to that date then, of course, parties are at liberty to read what ever material they like, but the most prominent material, one would have thought, can only be in relation to relevant events subsequent to 3 November 2006.

26. If minds were concentrated upon that fundamental legal issue, then it is difficult to see that it would require as the father referred to “three days of reading time for relevant material”.

27. I also take into account not only the father’s position in terms of the difficulties that he says he has experienced in obtaining legal representation during the four months subsequent to the orders that I made in September 2006, but also the position of the mother.

28. As with the father, the mother has been engaged in proceedings which implicitly have taken an emotional toll on the parties. Their investment emotionally and in terms of money can only have been considerable.  Her position has been exacerbated by the trauma that no doubt was associated with the alleged disappearance of the three children on two occasions, once for six weeks in 2007 and again for a day in 2007.

29. These proceedings have continued unabated. It is very much in the interests of the parties, but in particular their three children, that they are brought to a conclusion at the earliest feasible time.

30. I endeavoured to ensure that for the parties’ sake as well as their three children, that they had ample time to be ready for today regardless of any potential or real problems that may have arisen in the interim so far as legal representation was concerned.  I made it clear when these dates were fixed for hearing that this matter will proceed today, barring unforseen circumstances.

31. The three children, the subject of the proceedings are now aged 12, 10 and 9.  It is a salutary consideration that for more than three years of their young lives their parents have been embroiled in litigation about them, both in Queensland and in this State.

32. Matters must now be brought to a conclusion in their interests and that is a matter upon which I attach considerable weight.

33. The mother has also strained herself financially to be ready for this hearing as deposed to by her in her Affidavit of 19 January 2009. The prejudice to her cannot be compensated in an order for costs or a short adjournment.

34. I have taken into account the extensive detailed history provided in the Affidavit of Ms D sworn 2 February 2009.

35. Consequently, it is for those reasons and having balanced them and considered the substance to the application made by the father, that I have nonetheless determined that his application will be dismissed.

36. I have also not lost sight of the fact that the father does not seek a short adjournment. Indeed, as he made clear to me, the period of time that he seeks is another five months.  That period is simply intolerable for all concerned.

37. Consequently, the Application for an adjournment filed by the father on 29 January 2009 is dismissed.

38. Following the dismissal of the father’s application for an adjournment, he then made an application for what he described as a “stay”.

39. I pointed out to him that there was no operative order that I had made today which could be stayed.

40. Essentially, it was seeking an adjournment but described in another fashion.

41. The father repeated that he was not in a position to represent himself.  I had raised with him the possibility that I could adjourn the proceedings today and resume at 9.30am tomorrow morning.  That was not a possibility that he was prepared to embrace.

42. The father outlined that another judge had taken a particular view of cross-examination that he had conducted and that counsel had attacked him and made a certain description about his parenting abilities.

43. I made it clear to the father and the other parties, that I am not bound nor I am influenced, in any way, by what a previous judge may or may not have found in proceedings between the parties nor, am I affected, in any way, by what counsel may have used as a description of the father’s parenting abilities.

44. I will determine these proceedings on the evidence before me and not on any other basis.

45. The father referred to me having virtually described him as being a lawyer.  That is putting a colourful interpretation which is far removed from the truth.  However, no doubt he is influenced by the pressure of the situation and nothing more need be said about that.

46. Consequently, the oral application made by the father for what he described as a “stay” is dismissed as it does not have any merit, in my view, given that I have dismissed his application for an adjournment. The arguments that he has put forward, whilst described in a slightly different way, carry exactly the same substance as his previous application.

I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose

Associate: 

Date:  5 February 2009