RICHARDS & MORRIS

[2015] FamCA 129

FAMILY COURT OF AUSTRALIA

RICHARDS & MORRIS [2015] FamCA 129

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournments – Where mother seeks further hearing of the part-heard trial be adjourned for a minimum of 14 weeks – Where no suggestion at last sitting that the matter was not ready to continue – Where Court noted that there are mandatory statutory principles in relation to the conduct of child-related proceedings in the Family Court – Where mother asserted a number of matters as bases upon which the application is advanced – Where Court not satisfied that the matters asserted by the mother are sufficient basis to adjourn the part-heard trial – Where Court noted the Court is a very limited resource at this point in time – Where the Court noted section 69ZN of the Family Law Act 1975 makes plain that the court must actively manage proceedings as parliament has mandated – Where Court not satisfied that the interest in justice in this case require there be an adjournment of the hearing – Where Court noted in relation to one of the matters asserted by the mother, namely her ill health, that the medical certificate produced in support was deficient and was not in an affidavit form – Where Court noted it will hear further argument as to this if the mother is able to produce an appropriately drawn affidavit from the medical practitioner remedying the deficiencies in the certificate – Where Court declined Application – Where Court noted such should not preclude the mother from pressing a further application based upon ill-health, supported by proper material.

Family Law Act 1975 (Cth) s 69ZN

Aon Risk Services Australia Ltd v Australia National University (2009) 239 CLR 175

APPLICANT: Mr Richards

RESPONDENT: Ms Morris

INDEPENDENT CHILDREN’S LAWYER: Ms Meehan

FILE NUMBER: TVC 829 of 2013

DATE DELIVERED: 2 March 2015

PLACE DELIVERED: Townsville

PLACE HEARD: Townsville

JUDGMENT OF: Tree J

HEARING DATE: 2 March 2015

REPRESENTATION

THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Mr Byrne

COUNSEL FOR THE INDEPENDENT

CHILDREN'S LAWYER :

Mr Victoire

SOLICITORS FOR THE INDEPENDENT CHILDREN'S LAWYER: M M Meehan

IT IS NOTED that publication of this judgment by this Court under the pseudonym Richards & Morris has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT TOWNSVILLE

FILE NUMBER: TVC 829 of 2013

Mr Richards

Applicant

And

Ms Morris

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. By her application in a case filed on 18 February 2015, the mother seeks that the further hearing of the trial be adjourned.  It is said that the adjournment would be for a minimum of 14 weeks.  The grounds of her application I will set out shortly.  However, before I do so, it is convenient to recite something of the history of these proceedings.

2. The trial of the proceedings commenced before me on 4 November 2014 and concluded on Friday, 7 November; not concluded in the sense that the trial had finished but, rather, the time available to deal with the matter in the sittings had come to an end.  By that time, both the mother and father had given their evidence-in-chief and been cross‑examined by the other, and the independent children’s lawyer.  A psychiatrist, Dr B, had given evidence and been cross-examined by relevant parties, and the family report writer, Ms Brown, had been cross-examined by the father, by the Independent Children’s Lawyer, and her cross-examination by Mr Byrne who appeared as counsel for the mother, had commenced.

3. It then was anticipated that the trial would resume at the next sittings in Townsville, as the first matter in that list.  It has come on before me today pursuant to that regime, albeit that I had also listed the mother’s application for an adjournment to 10 o’clock this morning.  Therefore, somewhat unusually, although there was no suggestion when the Court was last sitting on 7 November that the matter was not then ready to continue, it appears as though matters have arisen since then which have caused the mother to believe that the matter is, in fact, now not ready to proceed.

4. The relevant principles dealing with adjournments or, more precisely, the role of the Court in managing the objectives of case management with a just resolution of matters, were addressed by the High Court in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at - relevant to this matter - [93] and following, in the judgment of Gummow, Hayne, Crennan, Kiefel and Bell JJ. At [98], their Honours said this:

   Of course, a just resolution of proceedings remains the paramount purpose of the relevant rule but what is a “just resolution” is to be understood in light of the purposes and objectives stated.  Speed and efficiency, in the sense of minimum of delay and expense, are seen as essential to a just resolution of proceedings.  This should not detract from a proper opportunity being given to the parties to plead their case, but it suggests that limits may be placed upon re‑pleading when delay and cost are taken into account.  The relevant rule’s reference to the need to minimise cost implies that an order for costs may not always provide sufficient compensation and, therefore, achieve a just resolution.  It cannot, therefore, be said that a just resolution requires that a party be permitted to raise any arguable case at any point in the proceedings on payment of costs.

5. Whilst that decision was in the context of specific rules which do not apply in this Court, nonetheless, there are mandatory statutory principles in relation to the conduct of child‑related proceedings in this court. Those are contained within section 69ZN of the Family Law Act, and by subsection (1) of that provision, the Court is mandatorily required to give effect to the principles in performing duties and exercising powers in relation to child‑related proceedings but, importantly, by subparagraph (b), also in making other decisions about the conduct of child‑related proceedings. 

6. The principle relevant to these proceedings is principle 5, contained in section 69ZN(7), which reads:

   The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality and legal technicality and form as possible.

7. In my view, that statutorily mandatory principle is relevant to a consideration of this application and, particularly, the application of the relevant principle in Aon Risk Services v ANU.

8. Against that background, I turn to consider the bases upon which the application is advanced.  The first is that the mother now finds herself without legal assistance in circumstances where she requires it.  Of course, she did have counsel who appeared for her at the first four days of trial in November.  However, Mr Byrne tells me, and it is unnecessary for me to further consider, that he has legitimately returned his brief pursuant to Queensland Bar Association Barristers’ Rules 99(b), (d) and perhaps (n).  As I say, it is unnecessary for me to consider that matter; that is a matter for Mr Byrne.  However, Mr Byrne did, after being telephoned by the Court, obtain instructions to appear today to argue his client’s application for an adjournment. 

9. Since the trial in November concluded part‑heard, the mother has sought a grant of legal aid, which was refused.  It appears as though her review of that decision was also unsuccessful, and she is now seeking review of that decision by the Ombudsman.  It also appears as though she has the intention of seeking assistance from QPILCH or the Queensland Law Society to obtain pro bono representation for her.  However, the material before me would allow me little confidence in concluding that an adjournment on this basis is likely to lead to legal representation being secured by the mother. 

10. Firstly, it would appear as though the mother has exhausted her internal reviews of legal aid funding, and her only hope now would be to have some investigation launched by the Ombudsman into the refusal of aid.  Whether the Ombudsman would, indeed, accept such a complaint is moot.  However, even if she or he did, it is by no means certain that an investigation would lead to the mother getting a grant of legal aid.  There is nothing in the material which would allow me to conclude that if I were to adjourn the matter so as the mother could further pursue a grant of legal aid, she enjoys any real prospects of success in that endeavour.

11. Secondly, as to QPILCH or the Queensland Law Society, it appears as to though since the mother was refused legal aid, she may have made some glancing contact with either of those organisations or perhaps both, but it appears as though no real attempt to secure representation under those regimes is presently on foot.  Moreover, there is nothing in the material which would persuade me that the mother enjoys any real prospects of obtaining legal representation from QPILCH or, indeed, from the Law Society, although I suppose it is possible. 

12. However, there is a more fundamental difficulty, and that is that in addition to legal representation, the mother asserts that she needs something far more, namely, expert assistance, particularly an expert opinion relating to an issue which the parties assert has become central in the case, namely, the authenticity and authorship of communications that have occurred from time to time between the parties.  The father contends that they emanate from the mother and that they are a form of harassment and intimidation of him.  The mother says that the father is falsely pretending that they have emanated from the mother when, in fact, he is the source of them.  It is said that that may inform where the best interests of the children lie – a matter upon which I presently express no opinion.  Suffice to say that the family report writer seems to think that it is a matter of some moment, and, therefore, I accept that it is a matter worthy of at least some consideration in the litigation. 

13. However, the mother has deposed in her affidavit in support of the application that she has a quote for the relevant expert to review the materials and provide testimony, of between $2500 and $6000.  How it is that that funding would be obtained via QPILCH or the Queensland Law Society is unexplored in the material before me. 

14. It is not, therefore, simply a matter of having the mother appropriately legally represented; it is a matter of having her able to marshal the case which she says she wishes to advance in these proceedings.  There is nothing in the material which would persuade me that if I were to adjourn the matter, whether for 14 weeks or some other period, the mother is likely to be able to either obtain legal representation or, perhaps more importantly, obtain some funding for the relevant expert report.

15. The second matter relied upon by Mr Byrne related to subpoenae that have been issued by the Independent Children’s Lawyer.  They were issued pursuant to directions of the Registrar and were to issue by 6 February.  It appears as though there has been something of a late provision of that material or, at least, it has only recently become available for one reason or another.  This material is apparently in the form of records produced by two or three telecommunications companies.  It is said by the father to be relevant to the proceedings because it demonstrates the authenticity and authorship of relevant communications.  It is said by the mother that she has not had an opportunity to properly consider that material and, indeed, when the material was first made available on Friday, was not here in Townsville to inspect, it appears.

16. I have already dealt with the problems which the mother has in obtaining funding to obtain an expert to review this material.  It may be, ultimately, that the material in its raw form is unintelligible or, at least, of little weight in proving or disproving either of the parties’ cases.  I have not been shown the subpoenaed material.  In any event, if it be the case that the mother contends that the late production of the material has caused her prejudice, that may be a basis for seeking to have that material not permitted to be relied upon by any party, whether by way of evidence-in-chief or in cross-examination or otherwise.  However, of itself, and without more, I am not persuaded that this is an issue which cannot be appropriately managed to the extent that the mother suffers any prejudice by virtue of the late production of material.

17. The next matter relied upon by Mr Byrne was the asserted volume of material filed by the father in recent days.  However, firstly, it is said, seemingly without contradiction, that most of that material is either updating or responsive to material in the most recent Family Report, and in any event, even if there are additional new material in it, it is by no means certain that I will permit the father to rely upon that material given, of course, that his cross-examination has already concluded.  That is a matter which can be addressed in due course in the event that the application for an adjournment is not acceded to.

18. The next matter relied upon by the mother is the father’s refusal to respond to – in any meaningful of substantive way – a Notice to Admit Facts which the mother filed and served in February of this year.  The father has, in broad terms, objected to answering what he says are several hundred questions contained within the Notice to Admit.  There are questions as to the validity, or, at least the efficacy, of the Notice to Admit.  There are also questions as to the efficacy of the father’s response.  There are then questions as to whether or not the mother should be permitted to rely upon a Notice to Admit Facts issued after the conclusion of both parties’ evidence, and during the course of the trial.  And there are further questions as to whether or not – in the event that it is a valid Notice to Admit Facts – the father may be deemed to have admitted all of the matters contained therein by virtue of his response.  These are all matters which can be subject to legal argument and I am unsatisfied that, of themselves, they are sufficient basis to adjourn the part-heard trial for some months. 

19. The next matter relied upon by Mr Byrne was the alleged intimidation of witnesses by the father.  There is nothing in the material before me which would permit me to conclude that there has been such intimidation, or, alternatively, if there has that it is of a kind that could be met, cured or in some way ameliorated, by an adjournment.

20. The final matter relied upon by Mr Byrne was the alleged ill-health of the mother.  The mother relies upon a medical certificate issued on Friday 27 February 2015 by the C Town GP Superclinic, and, particularly, a Dr D.  It reads as follows:

    [Ms Morris] has a medical condition and will be unfit for travel or work from 27 February 2015 to 6 March 2015 inclusive.  She was seen by me today and my assessment is that she is suffering from extreme emotional and physical stress and fatigue, most likely related to the upcoming court case in Queensland next week.  It is not advisable for her to be involved in this case at this time.

1. The certificate, which was handed up to me this morning by another barrister, whose role I don’t need to stay to detail in these reasons, is not in the form of an affidavit, and it’s laudable only for its brevity.  The medical condition referred to in the first sentence is unspecified, but, perhaps informed by what appears in the next sentence:  “extreme emotional and physical stress and fatigue”.  It is sad to record that self-represented litigants in highly conflicted proceedings such as these, regularly suffer extreme emotional and physical stress and fatigue.  However, the court needs to ensure that the litigation is nonetheless conducted and concluded.

2. Moreover, the certificate – and I accept that it’s given by a superclinic, no doubt under pressure of time and the like – only refers to the mother being unfit for travel or work.  Exactly how it is said that she is presently unfit for travel is unspecified; presumably, she needed to travel to the superclinic in the first place.  Moreover, the reference to work is perplexing.  Whilst, no doubt, there is a degree of effort required on the part of self-represented litigants in conducting their cases, it is not work.  Moreover, precisely why it is that the mother’s incapacity would only run for a week and, apparently would evaporate on 6 March 2015, is unhelpfully not explored.

3. The next sentence, which details the mother’s extreme emotional and physical stress and fatigue, as I have said, may be taken as a given for self-represented litigants in this jurisdiction, where they are engaged in combat with their former partner in relation to their children.  It is inconceivable that a litigant in her situation would not be suffering extreme emotional and physical stress and fatigue, particularly given the sorts of allegations that are raised here in this case.

4. The final sentence simply says that it is not advisable for her to be involved in this case at this time.  Whilst that may be the doctor’s opinion, it is not expressed in a form which enables the court to really get behind what it is makes it unadvisable, and what it is that is said to be able to be accommodated by delaying the proceedings until 6 March. 

5. Before I conclude my deliberations in relation to the application, I should also make the following plain:  this court is a very limited resource, particularly in Queensland at this point in time.  It sits in this Registry for about 10 weeks per year.  The use of the time that has been allocated for trials is, therefore, a scarce public resource which needs to be shepherded in a way that obtains for the public the best possible outcome for its investment.

6. Whilst parties may believe that they can control the litigation and, particularly, whether or not it proceeds at a particular juncture or not, those days are long gone. The court itself must, as section 69ZN makes plain, actively manage the proceedings as parliament has mandated. This matter was set to run for another four days this week, and there is no reserve trial, as I understand it, which could be used to fill the void. Whilst not a determinative matter, it is a matter of some significance given the very restricted amount judicial resources in this registry.

7. Weighing all of those matters, and taking into account all of the arguments advanced by the mother, I am not satisfied that the interests of justice in this case require there to be an adjournment of the hearing. 

8. However, I am mindful of two things.  The first is that the mother is apparently now a resident in C Town.  It may be – for better or for worse – that she believed that her medical certificate of 27 February would incline me to accede to her application for an adjournment either by itself or in conjunction with the other matters relied upon.  Certainly, it appears as though – as late as 27 February 2015 – she was, in fact, still in C Town, with a trial due to commence today with, to her knowledge, a considerable volume of subpoenaed material that needed to be examined.  How, precisely, she was proposing to prepare for the resumed trial if she was still in C Town on Friday is a mystery. That said, plainly she should now be given the opportunity – should she so wish – to make immediate and urgent travel arrangements to get from C Town to Townsville so that the trial can resume.  I will allow Mr Byrne to take instructions in relation to that possibility, should she wish to avail herself of it.  If she does not, then the likely consequence that the trial will proceed by way of an undefended hearing of some kind.

9. The other matter that I am conscious of is that the medical certificate is clearly deficient in the way in which it is cast, to say nothing of the fact that it is not in an affidavit form.  It seems to me – and I will hear further argument as to this – that if the mother is able to produce an appropriately drawn affidavit from a medical practitioner remedying the deficiencies in the certificate which I have identified, then my declining her application today should not preclude her from pressing a further application based upon ill-health, supported by proper material.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 2 March 2015.

Associate:

Date:  2 March 2015