ROBERTS & LIANG

[2019] FamCA 932

FAMILY COURT OF AUSTRALIA

ROBERTS & LIANG [2019] FamCA 932

FAMILY LAW – PRACTICE AND PROCEDURE – adjournments – where the matter is part-heard – where the respondent’s counsel and lawyer withdrew at the commencement of the hearing – where the respondent seeks an adjournment to enable her to seek alternate legal representation – where the respondent is assisted by an interpreter – order that the proceedings be adjourned.  

FAMILY LAW – COSTS – where the applicant seeks costs against the respondent – consideration of circumstances justifying the making of a costs order – where the adjournment of the final hearing resulted in costs thrown away – costs ordered in accordance with schedule 3 of the Family Law Rules 2004 (Cth).

Family Law Act 1975 (Cth) s 117
Family Law Rules 2004 (Cth) Sch 3

APPLICANT: Mr Roberts

RESPONDENT: Ms Liang

FILE NUMBER: DGC 1163 of 2016

DATE DELIVERED: 18 November 2019

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 18 November 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Swart

THE RESPONDENT: In person

Orders

BY THE COURT IT IS ORDERED 

1. That all extant applications be adjourned for final hearing as a part-heard matter before Johns J at 10.00am on 25 May 2020, for five days.

2. That the respondent pay the applicant’s costs thrown away fixed in the sum of $3,000, payment of such sum to be stayed to 31 January 2020.

BY CONSENT IT IS ORDERED

1. Order 1 of the orders made by consent on 26 July, 2019 be varied for X to spend time with the mother as follows:

   (a)       During summer school holidays:

   (i)From 20 December 2019 from day-care to 11a.m. on 25 December 2019 at Suburb B McDonalds.

   (ii)And then week-about from the conclusion of childcare on Monday to the commencement of childcare one week later on Monday each alternate week commencing 30 December, 2019.

   (b)Upon the commencement of school, changeover will be to and from school on each alternate Thursday and Monday and from the conclusion of school on Thursday to the commencement of school on Friday each alternate week.

   (c)During school term holidays, from the conclusion of school to 5.30 p.m. on the middle Saturday at Suburb B McDonalds.

2. Pursuant to Section 65DA(2) and Section 62B, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist the parties adjust to and comply with an Order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.

NOTATION:

The parties agree to an interim enrolment to commence school at Suburb C Primary School in 2020.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGC 1163 of 2016

Mr Roberts

Applicant

And

Ms Liang

Respondent

REASONS FOR JUDGMENT

1. This matter was listed before the Court to resume as a part-heard matter this day.  As a result of the grant of leave for the solicitor for the respondent mother to withdraw her involvement in the proceedings, the respondent finds herself without legal representation at this final hearing, she having had the benefit of both solicitor and counsel representing her for the first four days of the trial.

2. The proceedings relate to future parenting arrangements for the child X, who is aged five years.  To date, there has been four days of hearing.  The applicant has opened his case and given evidence, he having been subjected to cross-examination for a period of about four days.

3. The matter was adjourned to resume for a further five-day hearing commencing today. 

4. For reasons that are unstated, it became necessary for counsel representing the respondent to withdraw from the proceedings.  That position emerged in August 2019.  By 18 September 2019, the respondent’s then-solicitor engaged new counsel to represent her at this part-heard hearing.  However it was the position of that counsel that funds had to be placed into the solicitor’s trust account to secure that counsel’s appearance at this hearing.  The deadline for the deposit of funds was to be 11 November 2019.  The respondent has been unable to provide funds to her solicitor to enable counsel to be briefed to appear on her behalf at the hearing.

5. As a result of the respondent’s failure to place her former solicitor in funds, that solicitor has sought leave to withdraw from the proceedings, and as I have already noted, I have granted her such leave.  I have also granted counsel who previously represented the respondent leave to withdraw, given her submission that it was no longer appropriate for her to continue her involvement in the matter.

6. The respondent is from Country E and has had the assistance of a Country E interpreter for the entirety of the proceedings.  She does not feel confident to be able to conduct the proceedings on her own behalf.  She comes to Court today seeking an adjournment of the proceedings to enable her to attempt to secure representation so that her position can be appropriately put before the Court. 

7. As I have noted, these are parenting proceedings in relation to the child X.  The applications before the Court involve an application on behalf of the respondent that she be permitted to relocate to Country F to live with the child.

8. The applicant in the proceedings has no biological connection to the child, albeit that he has fulfilled the role of father to X since her birth, it being his position that, from the time of conception through to shortly after X’s birth that he was led to believe by the respondent that he was X’s biological father.  He has provided primary care for X for a number of years and he opposes the application made by the respondent for relocation.  Further, he seeks orders that X continue to live with him, and that there be orders for her to spend time with the respondent.

9. Since the commencement of the proceedings, the respondent has had another child, G.  As such, further issues arise as to ensuring X has the opportunity of a relationship not only with the respondent but also with her younger sibling.

10. As a result of the complexity of the issues, in my view, it is appropriate that the proceedings be adjourned to provide the respondent with the opportunity to obtain appropriate legal representation. 

11. There is significant dissatisfaction from the Court’s perspective as to how these events have unfolded.  This matter had been listed a further five days for hearing.  It seems, from the Court’s perspective, most unfortunate that notice of the respondent’s financial difficulties and the withdrawal of her representation has been provided so late in the day.  The reality is that the late withdrawal of both counsel and solicitors representing the respondent has meant that there has been little opportunity for the Court to make alternate arrangements for other matters to be heard in this week.  In an environment where resources are limited and where the community has significant concerns as to delays in the Court system, that this situation has emerged is most unfortunate.

12. I note the disappointment of the applicant, who has come to Court today seeking to proceed with his application to bring these matters to a conclusion.  He, too, submits that he has had financial difficulties.  His solicitors have withdrawn representation, and counsel who has previously appeared is continuing to do so on a direct access brief basis.  However, sensibly the applicant acknowledges the respondent’s difficulties and did not oppose her application.

13. The principal prejudice to the applicant is as to the costs thrown away, and also as to the emotional cost of a further delay of the proceedings.

14. In addition, I am concerned as to the impact of the delay upon X.  The updated report prepared by Dr D, which is annexed to her affidavit filed 30 October 2019, indicates that X is acutely aware of the conflict between the parties.  It would appear from that report that X is exposed to pressure when she is in the presence of both parties at the same time.  That is a matter of grave concern to the Court, and it is of greater concern that this delay may exacerbate those issues. 

15. Nonetheless, in circumstances where the solicitor and counsel have withdrawn so late in the day, and the respondent has had little opportunity to attempt to secure alternate legal representation, and where, were she to proceed with the hearing this week, she would be doing so with the assistance of an interpreter, I am satisfied that it is appropriate that the proceedings be adjourned.

16. Unfortunately, due to pressures in the list, the reality is that that adjournment will mean that these proceedings cannot resume until next year.   

RECORDED : NOT TRANSCRIBED

1. The further order that I make is as follows.

ORDERS DELIVERED

RECORDED : NOT TRANSCRIBED

1. Having acceded to the respondent mother’s application for an adjournment of the matter, the applicant seeks that the respondent meet his costs thrown away in relation to the hearing this day. The amount sought by the applicant is counsel’s fees for the day which, on the scale provided in schedule 3 of the Family Law Rules 2004 (Cth) (“the Rules”), are $1,979. In addition, what is sought is provision for a three-hour conference in relation to the preparation for the resumption of the final hearing. That allowance being at $411 an hour, the costs of which totals $1,233. Therefore the total amount sought on behalf of the applicant is $3,215.

2. The position of the applicant is that the conduct of the respondent justifies such order.  It is submitted that this is a part-heard matter, there was little notice provided of the proposed adjournment application.  Indeed, the respondent concedes that notice was not of the proposed adjournment until Friday 15 November 2019, being the Friday before the resumption of this hearing.

3. The general rule in relation to costs is that each party to proceedings, pursuant to the Family Law Act1975 (Cth) (“the Act”), should bear their own costs. Section 117(2) of the Act provides that, if the Court is of the opinion that there are circumstances that justify it in doing so, the Court may, subject to the provisions of subsections (2A), (4), (4A), (5) and the Rules of Court, make such order as to costs and security for costs as the Court considers just.

4. Section 117(2A) sets out the matters that the Court should have regard to in considering whether to make an order for costs. 

5. Those circumstances include the financial circumstances of each of the parties to the proceedings.  The reality of this case is that neither party is in a strong financial position.  The respondent has the care of a young child.  Indeed, it is her case that the adjournment has been caused as a result of her being unable to place her solicitor in funds so as to have counsel briefed.  That is part of the background to her application for an adjournment. 

6. Equally, the applicant would say that he is in a parlous financial position.  His solicitors have also withdrawn from the proceedings, and he has the benefit of counsel today only because of arrangements made between he and his counsel for a direct access brief.

7. Neither party is in receipt of legal aid funding. 

8. I have already referred to the conduct issue that has been raised by the applicant.  It is submitted on his behalf that it is inappropriate for notice of the proposed adjournment to have been provided so late in the day.  It has meant that costs have, of necessity, been thrown away.  Until Friday last week, the position and the assumption made by him was that this trial would resume today, and preparations have been undertaken to ensure the applicant’s readiness to continue with the proceedings today.

9. Having regard to those matters, I am satisfied that it is appropriate in the circumstances of the case that there be an order for costs.  Taking into account the amounts provided under the Scale, I will order that the respondent pay the applicant’s costs fixed in the sum of $3,000.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 18 November 2019.

Associate: 

Date:  18 November 2019