SAFFORD & KELSO
[2021] FamCA 349
FAMILY COURT OF AUSTRALIA
| SAFFORD & KELSO | [2021] FamCA 349 |
| FAMILY LAW – CHILDREN – Family Violence – where the mother made allegations of family violence perpetrated by the father – where the father has been imprisoned for violence perpetrated against the mother – where the father no longer has legal representation – whether or not a section 102NA order should be made – whether or not father should be prevented from cross-examining the mother. FAMILY LAW – CHILDREN – Adjournment application – where the father sought a long period of adjournment – where proceedings had been on foot for many years – where the mother and ICL oppose adjournment – adjournment application refused. |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) |
| Mertens & Mertens [2016] FamCAFC 136 |
| APPLICANT: | Mr Safford |
| RESPONDENT: | Ms Kelso |
| INDEPENDENT CHILDREN’S LAWYER: | KS Family Lawyers |
| FILE NUMBER: | BRC | 1970 | of | 2011 |
| DATE DELIVERED: | 19 May 2021 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Johns J |
| HEARING DATE: | 19 May 2021 |
REPRESENTATION
| THE APPLICANT: | In Person |
| COUNSEL FOR THE RESPONDENT: | Mr Strong |
| SOLICITOR FOR THE RESPONDENT: | Victoria Legal Aid |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAYWER: | Ms Schuck |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAYWER: | KS Family Lawyers |
Orders
That the father have leave to make oral application for an adjournment of the hearing listed on 11 June 2021.
That the father’s oral application for an adjournment of the final hearing be dismissed.
The requirements of s 102NA(2) of the Family Law Act 1975 will apply to any cross-examination occurring in the proceedings.
That the respondent mother have leave to file by 4.00pm on 21 May 2021 a further amended response to Initiating Application.
AND THE COURT NOTES:-
A.That the parties intend to cross-examine each other at the trial of the proceedings, and that there is an allegation of family violence between them;
B.That the parties have each been advised by the Court:-
(a)That pursuant to these orders, neither party may cross-examine the other party personally;
(b)That pursuant to these orders, any cross-examination of either party may only be conducted by a legal practitioner acting on behalf of the other party;
(c)As to the availability of the Commonwealth Family Violence and Cross-Examination of Parties Scheme and the means by which they may apply to that scheme for the provision of a lawyer; and
(d)That a copy of these orders will be provided by the Court to Victoria Legal Aid, which administers the said scheme.
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 Safford & Kelso 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: BRC 1970 of 2011
| Mr Safford |
Applicant
And
| Ms Kelso |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
This matter has been called on today as a result of the filing of a Notice of Ceasing to Act by the father’s former solicitors. That Notice of Ceasing to Act was filed on 30 April 2021.
The proceedings relate to the parenting arrangements for the child, X, who is aged 11 years. X currently resides with the respondent mother. The proceedings were commenced by the father upon him filing an Initiating Application in the Federal Circuit Court. That application was filed in 2017.
On 25 February 2021, I made orders listing the matter for a final hearing in relation to the parties’ contested parenting applications.
The history of the matter is that the father, who is aged 48, resides in Queensland. He is employed in the hospitality industry.
The mother is aged 44 years. She resides in Victoria. As I have already noted, she has the care of the child. The mother alleges that she has been the victim of significant family violence perpetrated against her by the father through the course of their relationship.
The parties cohabited for a period of approximately five years between 2007 and 2012.
In 2018 an intervention order was made in the Magistrates Court of Victoria against the father for the protection of the mother. That order continues to this day. At the time of listing the matter for final hearing on 11 June this year, the father was represented. He is now not.
Given the cessation of the father’s legal representation, I called the matter on today as I formed the view that the provisions of section 102NA(2) of the Family Law Act (“The Act”) may be enlivened. The parties were given notice of today’s listing last week.
Earlier today, the father communicated with the Court through my associate indicating that he would be seeking an adjournment of the final hearing for a period of 9 to 12 months.
Both the respondent mother and the Independent Children’s Lawyer (“the ICL”) have confirmed, during submissions today, that they oppose any adjournment of the proceedings.
The father submits that an adjournment of the proceedings is necessary as he does not have the financial or emotional capacity to progress the matter at this time. He submitted that he is responsible for the care of his partner, who is unwell, and that all of his energy at this time is devoted to her needs. It is as a result of that commitment that he says to the Court that he is not in a position to progress his parenting application at this time.
The father’s application seeks a reintroduction of the father’s time with the child, X. The father has spent no time with X since 2014.
As a result of breaches of family violence intervention orders and assaults perpetrated by the father against the mother, the father was incarcerated for a period of approximately two years between 2014 and 2016. He has spent no time with X since his incarceration.
That history, in my view, supports a finding that this matter should proceed on its listed date.
The mother’s evidence is that she has suffered significant trauma and stress as a result of the father’s alleged violence toward her and as a result of the ongoing Court proceedings. It is her view that the proceedings must be brought to a conclusion. That position is supported by the ICL.
In addition to those matters, the mother’s lawyer submits that it would be inappropriate to grant the father the indulgence of an adjournment in circumstances where he has been consistent in his failure to comply with previous orders of the Court.
I was referred to the orders made by the Court on 6 November 2020 which required the father to attend for an appointment for psychiatric assessment. He did not attend that appointment in accordance with those orders. Further, that day orders were also made for the father to submit to hair follicle testing. Again, the father has failed to comply with those orders.
I was also referred to orders made requiring the father to file an amended Initiating Application. The father has also failed to comply with those orders.
It is submitted on behalf of the mother that she should have the opportunity to proceed with her application on its listed date and that, if the father does not engage with the process, the matter ought proceed on an undefended basis. Those submissions are supported by the ICL.
The determination of any adjournment application is always a delicate balancing act. This Court has a wide discretion to grant adjournments, but it is not an unfettered discretion. Kent J, in the decision of Mertens & Mertens [2016] FamCAFC 136, helpfully summarised the matters that should be taken into account when determining an application for an adjournment. His Honour there stated at [3] to [5] as follows:
3.The Court obviously has a wide discretion to grant adjournments but it is not a discretion which is unfettered. The Court should take into account the reasons for the adjournment, any period of delay in making the application, any prejudice or disadvantage to other parties that cannot be compensated by way of orders for costs and indeed, since decisions of the High Court, for example in Aon Risk Services v Australian National University [2009] 239 CLR 175, the effect also upon the Court and other litigants before the Court of the adjournment.
4.The fundamental consideration is whether the adjournment is necessary to do justice as between the parties [3]-[4].
5.Added to that…s 97(3) of the Family Law Act1975 (Cth) (“the Act”) imposes an obligation upon the Court to endeavour to ensure that proceedings are not protracted and the Family Law Rules 2004 (Cth) (“the Rules”) express objectives for cases to be resolved in a just and timely manner at a cost to the parties and to the Court which is reasonable in the circumstances of the case. I refer to, for example, r 1.04 of the Rules. Notably the Rules also impose responsibilities upon parties to proceedings. For example, r 1.08 imposes an obligation upon parties to ensure their readiness for court events; and to give notice as soon as possible of an intention to apply for an adjournment.
The principles underlying the determination of child related proceedings are set out in Division 12A of the Act. The first principle the Court must consider is the needs of the child concerned and the impact that the conduct of the proceedings may have on the child. The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality and legal technicality in form as possible.
In this matter, the reality is, were I to accede to the father’s application for an adjournment, the matter would not be listed again until, likely, March or April of next year at the earliest.
That delay is likely to have a significantly detrimental impact on the mother and I would venture that any detrimental impact upon her is likely to also impact on the child, the subject of the proceedings.
The proceedings, which have been brought by the father, have been on foot now for a period of almost four years. The matter was listed for final hearing some three months ago. It is only today, some three weeks from trial, that the father seeks to have the proceedings adjourned. Having regard to the principles enunciated in Division 12A, and having regard to the Court’s concern as to the impact of the litigation on the mother and the child, in my view, there would be a significant prejudice to both were there to be an adjournment as sought by the father.
Accordingly, the father’s oral application for an adjournment made this day is refused.
That refusal brings the need to consider the impact of section 102NA on these proceedings. As I have already noted in this judgment, there is a lifetime family violence intervention order against the father for the protection of the mother. This enlivens the provisions of section 102NA(2).
Section 102NA(1) of the Act provides as follows:-
(1)If, in proceedings under this Act:
(a)a party(the examining party) intends to cross-examine another party(the witness party); and
(b)there is an allegation of family violence between the examining party and the witness party; and
(c)any of the following are satisfied:
(i) either party has been convicted of, or is charged with, an offence involving violence, or a threat of violence, to the other party;
(ii) a family violence order (other than an interim order) applies to both parties;
(iii) an injunction under section 68B or 114 for the personal protection of either party is directed against the other party;
(iv) the court makes an order that the requirements of subsection(2) are to apply to the cross-examination;
then the requirements of subsection (2) apply to the cross-examination.
This is a proceeding where a party, that is the father, would be likely to intend to cross-examine the mother. It is also a proceeding where there are allegations of family violence between the mother and the father and, further, in accordance with the provisions of section 102NA(1)(c)(ii), it is a proceeding where there is a family violence order that applies to both parties. As a consequence, I am satisfied that section 102NA(2) of the Act is enlivened.
I am satisfied that an order needs to be made that the examining party, in this case, the father, must not cross-examine the mother personally and that any cross-examination must be conducted by a legal practitioner acting on behalf of the father. The father will be entitled to seek legal assistance through the Commonwealth Funding Scheme. That is, he will be able to apply to Victoria Legal Aid for funding given my determination that it is appropriate that I make an order pursuant to section 102NA(2) of the Act.
I note that, in making that order, the father has been advised that he may not cross-examine the mother personally, that any cross-examination of the mother may only be conducted by a legal practitioner acting on his behalf, that there is available to him the Commonwealth Family Violence and Cross-Examination of Parties Scheme and he may apply to that scheme for the provision of a lawyer, with application to be made to Victoria Legal Aid. Upon the making of these orders, the Court will notify Victoria Legal Aid and in the event of the father making an application through that scheme, they will be aware that the Court has made that order.
As a result of my rulings, the matter will stand in my list. The hearing will continue to remain in the list on 11 June for the determination and, hopefully, finalisation of these proceedings.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 19 May 2021.
Associate:
Date: 27 May 2021
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