Rilak and Tsocas (No 5)

[2015] FamCA 848

FAMILY COURT OF AUSTRALIA

RILAK & TSOCAS (NO 5) [2015] FamCA 848

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournment – Where the applicant mother made an application for adjournment of the final hearing – Where the proceedings are in the third tranche of a final hearing – Where the mother only recently obtained legal representation for the remainder of the final hearing – Where the adjournment application was strongly opposed by the respondent father and the ICL – Where further delay of the final hearing was not in the best interests of the child – Application for adjournment refused.

Family Law Act 1975 (Cth)

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146

APPLICANT: Ms Rilak

RESPONDENT: Ms Tsocas

INDEPENDENT CHILDREN’S LAWYER: Peter Baker

FILE NUMBER: SYC 2062 of 2010

DATE DELIVERED: 4 August 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan J

HEARING DATE: 4 August 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Saw

SOLICITOR FOR THE APPLICANT: Law Society of New South Wales

COUNSEL FOR THE RESPONDENT: Mr Levy

SOLICITOR FOR THE RESPONDENT: Watts McCray Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Falloon

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Peter Baker Solicitor

Orders

1. The oral application for an adjournment of proceedings is refused.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Rilak & Tsocas 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 SYDNEY

FILE NUMBER:  SYC2062 of 2010

Ms Rilak

Applicant

And

Ms Tsocas

Respondent

REASONS FOR JUDGMENT

1. These are proceedings for financial and parenting orders.  This is the third tranche of a hearing that commenced in January of this year, continued in May and resumed again today.  The mother was initially represented by a solicitor and during the second phase of the hearing terminated the solicitor’s instructions.  There was a day or so where the mother did not attend at all, and then the mother indicated that she was proceeding without legal representation.

2. For the purposes of this phase of the hearing a notice of address for service had been filed for the mother under what I understood to be the New South Wales Law Society’s pro bono scheme, and a barrister Ms Saw represented the mother.  Ms Saw indicated that her client’s attitude in the parenting case had changed significantly.  I thought I heard her say that the mother was now seeking orders for equal time.  Ms Saw later indicated that the mother’s application was for equal parental responsibility and for the father to have unsupervised time on alternate weekends.

3. I expressed some concern to Ms Saw on the basis that the orders the mother now sought seemed to be inconsistent with much of the mother’s evidence relating to allegations of child abuse against the father. I indicated that even if the other parties agreed to the orders the mother now proposed, I would not be in a position to make the orders until that inconsistency was explained. 

4. The trial was resuming with the mother’s cross-examination. I indicated to Ms Saw that I thought the most efficient way forward was for her to secure a proof of evidence from her client in relation to any change in the mother’s case and a proof of evidence would allow counsel cross-examining her to have an indication of the evidence that they had to meet.  That was done and I requested that there be a minute of order prepared as to the mother’s new position.

5. The mother’s counsel requested some time and that was provided.  On resumption after an hour or so, Ms Saw applied for an adjournment of the proceedings – I think she said something like two months but if it was to be one month they could not complain, or some words to that effect.  I dismissed the application and indicated to the parties that I would give reasons later in the day and I excused the parties on publication of reasons.  Sadly, this approach has been necessary to try and preserve trial time in these proceedings on a number of earlier occasions. 

6. The submissions in favour of the adjournment were that the adjournment was needed primarily in B’s best interests, B being the subject child; the mother had lost an opportunity to resume her cross-examination or to re-open her cross-examination of the single expert in the proceedings; that the mother had had patchy representation; that English is not the mother’s first language; that on the property side of the proceedings, there remained issues of valuation; and given that her solicitor and counsel only came into the matter last week, it was thought necessary for them to order transcripts to understand the evidence that had been given already in the proceedings.  It was said that the adjournment may well allow the settlement or narrowing of some issues.

7. The adjournment was opposed by both the father and the ICL.  For the father, it was submitted that while the mother’s new lawyers might not have been aware of the arrangements for Dr C to be further cross-examined, the mother was aware and if she did not tell her lawyers, that is not a problem for the other parties.  As to a concern expressed by the mother’s counsel that they did not have all of the relevant evidence, it was submitted that that was a choice made by the mother, who did have access to all of the relevant evidence.

8. As to a complaint that the father’s solicitors had provided a balance sheet only very late in the piece, it was submitted that there had been draft balance sheets prepared during the course of the proceedings on several occasions and the only reason for the late provision was that it was an updating document for the trial.  The father’s counsel challenged the assertion that there were valuation issues, indicating that there had been a concession in relation to valuation or no issue raised in relation to evidence of valuation as to the former matrimonial home of the parties and the husband’s business.

9. As to a complaint about the need to be fair to the mother, it was asserted by counsel for the father that the Court had given – both at trial and at appellant level, the Court had given the mother every indulgence in relation to the proceedings, and in regard to trying to achieve fairness to the father, it was asserted that the costs of the proceedings have been crippling for him.  But perhaps more importantly, counsel for the father referred to the evidence of the single expert that the child lives in an abusive environment with the mother was evidence in respect of which the single expert was challenged but did not resile from her opinion.  It was submitted that in the absence of any other opinion, her views must be given some weight. 

10. Counsel for the father referred to repeated breaches of court orders – the failure of the mother to refrain from interrogating the child; breaches in relation to the father’s time; the conduct of the mother after being advised by Wollongong Hospital on 6 July 2015 that it was not appropriate for a vaginal swab to be taken of the child, the mother took the child on the following day to a GP for that same purpose.  It was submitted that the fact alone of the mother’s change of attitude in the proceedings was of concern in respect of the circumstances of the child.

11. The ICL, too, as I say, opposed the adjournment and reminded the Court of a provision which requires parenting proceedings to be conducted without undue delay.  The ICL asserted that the delays have been caused by the mother’s approach.  That is not entirely accurate as to one aspect.  In the first tranche of hearings, the matter could not be completed because I was indisposed, and that had nothing to do with the mother.  But there is something in the submission as to the mother’s lack of representation, representation, issues about interpreters and so on that I will come to.

12. I indicated to the mother’s counsel that normally there would be some reference to costs in relation to an adjournment application.  In respect of the costs of an adjournment, the mother’s counsel said she had instructions that the mother would meet the costs of all of the parties to the proceedings.  That gave rise to some concern expressed on behalf of the father in that it is the mother’s evidence that she does not have any funds.  That would not have been a problem, I think, on the basis that the funding would have either been provided or there would not be an adjournment.  So it need not be of concern, although it raised some questions.

13. I also asked the mother’s counsel what would happen in the meantime in circumstances where the Court has in place, over the strong objections of the ICL and the father and the even stronger objections of the mother, since a date in June, arrangements whereby the child is overnight with the father each weekend on a supervised basis.  The mother had no proposal in relation to changing the interim arrangements to accommodate her new application.  That was addressed in a document handed up to me just before I indicated that the application would be refused, which proposed that the child spend time with the father from 3.00 pm Friday to 9.00 am Monday every week, unsupervised, that the commencement be from a preschool at F School at 3.00 pm each Friday and that the mother would be absent at those times.

14. Adjournment applications primarily turn on the achievement of justice or the interests of justice.  The law has changed to some extent for that established in Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 to a more recent case of Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175.

15. So under the earlier authority, the question would largely be a question about the unfairness to the other litigants and any jeopardy in relation to the subject matter of the proceedings.  In Aon Risk Services Australia Ltd v Australian National University there was consideration given to all of the matters waiting in the queue of cases and the obligation of courts to husband the resource that is represented in judicial time and court time. 

16. In this case, it is likely that the mother’s case could be better prepared if an adjournment was granted.  Her lawyers, under a pro bono scheme – have come in very late, and they are undertaking a Herculean task of taking on a matter, which is part heard, that has been the subject of very significant oral evidence.  And as far as I am aware, there is little if any transcript available, as is the usual situation in this very busy jurisdiction where both the Court and the parties are hard-pressed for funds. 

17. I concede immediately that there would have been advantages, to the Court and certainly to the mother if there had been an opportunity for her lawyers to have more time with the documents, and probably if they had had an opportunity to have more time to take instruction from the mother and to give her advice. 

18. That is not the end of the matter, of course.  The other parties to the proceedings have been caught up in a case that has run too long, on any view.  I agree with Ms Falloon, learned counsel for the ICL, that some part of the delays and inefficiency of the proceedings must be sheeted home to the mother.  Proceedings that would normally, take something like a week are in their ninth or tenth day of trial time, and there is evidence already before me that the husband has spent hundreds of thousands of dollars on legal fees.

19. On the basis of those factors alone the application for adjournment would be refused, because there is an element of an adjournment for which there can be no compensation for stress and delay.  The added factor in this case, of course, is that there is a child who is the subject of the proceedings.  The proceedings are such that her interests are paramount, and the nature of the allegations in the proceedings are such that there is no safe harbour for her.  The mother’s case is and has always been that the child is at risk of sexual abuse by the father.  She is going now, I am told, to argue that I should nevertheless make an order that the child live unsupervised in the father’s care, but not because she does not believe that the child has not been abused.  She feels that the evidence is lacking to make that case. 

20. But as I said to her counsel, that is not the only allegation in the case.  Dr C gave evidence, it is my recollection, that the child was at grave risk in the mother’s household.  Dr C has expressed an opinion, at times, and I think the most recent opinion she expressed was that the Court should consider removing the child from the mother’s care, that there should be a period – a short period when the child did not see the mother and that thereafter, the time should be resumed on a supervised basis.  Now, one could speculate that if the mother’s application for adjournment was on the basis that the child live with the father in the interim and spend no unsupervised time with her, that may have been something that would have attracted a different approach.  I am not sure about that.  I have not thought about it.  It certainly was not the mother’s proposal, as I have indicated. 

21. As so often happens in parenting cases, there are a number of risks.  Here, from the parents’ point of view, the child is being abused; they just disagree about where it is happening.  The father contends and there is some evidence for his concerns – that the mother is abusing the child by attempting or in fact inculcating in her a false memory about sexual assault by him.  The single expert was not successfully challenged about her opinion of such a thing.  She gave some graphic evidence in relation to the creation of a false memory – in anybody, let alone a young child – about the suggestibility of people and children in relation to representations made to them, and she made the recommendation that I have referred to.

22. Dr C might not be accepted on a final basis.  Unfortunately, it appears that there will not be any further opportunity to cross-examine her, because the trial is running and because the mother could not meet the condition that I fixed on a previous occasion to secure Dr C’s fees.  Interestingly, an effort was made through the ICL to remedy that, and Dr C would have been available tomorrow, but the mother, who represented through her counsel that she would meet all the fees thrown away of the father and the ICL, was not going to be able to raise $1,900 or thereabouts in order to secure Dr C’s fees.

23. So I have the fact that the current arrangement is an arrangement which all of the parties opposed.  It is an arrangement that was not fully consistent with the expert’s advice.  The mother’s proposal for the adjournment period does not address the concerns raised by Dr C or by the father or by the ICL.  In those circumstances, particularly because of the need to explore and identify arrangements that are in the best interests of the child B, the application for adjournment was refused.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 4 August 2015.

Associate: 

Date:  9 September 2015