Schach and Birrell (No. 3)

[2009] FamCA 348

FAMILY COURT OF AUSTRALIA

SCHACH & BIRRELL (NO. 3) [2009] FamCA 348

FAMILY LAW – PRACTICE AND PROCEDURE – application for removal of the Independent Children’s Lawyer – where insufficient factual material has been put before the court – where applicant has sought adjournment to present further material – evidence of waiver by applicant – matter has trial date and applicant has not taken his opportunity to present proper material in support of his application – application considered on affidavit material already before the court - application dismissed

Family Law Act 1975 (Cth)

APPLICANT: Mr Schach

RESPONDENT: Ms Birrell

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: ADC 5060 of 2008

DATE DELIVERED: 18 February 2009

PLACE DELIVERED: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 18 February 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Ms A. Du Barry

SOLICITOR FOR THE RESPONDENT: Ann Josephson Lawyers

INDEPENDENT CHILDREN’S LAWYER

COUNSEL:

Mr O.M. Keen

INDEPENDENT CHILDREN’S LAWYER

SOLICITOR:

Alderman Redman Lawyers and Mediators

Orders

1. That the oral application made by the father to adjourn paragraph 4 of the Application in a Case filed on 3 December 2008 be dismissed.

2. That the Application in a Case filed on 3 December 2008 be dismissed and removed from the active pending cases list.

3. That Annexure “3” to the affidavit filed by the father on 3 December 2008 be removed from the affidavit and returned to the father forthwith.

4. That further consideration of the Application Alleging Contravention filed on 3 December 2008 be adjourned to 10:00am on 19 February 2009.

5. That leave be granted to the mother to attend the hearing on 19 February 2009 by telephone.

IT IS NOTED that publication of this judgment under the pseudonym Schach & Birrell is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 5060 of 2008

MR SCHACH

Applicant

And

MS BIRRELL

Respondent

EX TEMPORE REASONS

1. In this matter, I have two applications before me today.  The first application is an application in a case filed by the father on 3 December 2008.  That application and the second application that is before me were originally filed in the Federal Magistrates Court.  However, on 18 December 2008 Mead FM transferred the case to this court, and that is why I am hearing these two applications today.

2. In any event, with the application in a case filed on 3 December, the father acts in person, and I understand he has acted in person for some time now, although he has had lawyers acting for him previously.  This is a long-running matter that was commenced in 2002. 

3. The father filed an affidavit in support of the application, but it does nothing more than repeat the 19 paragraphs of the application.

4. I have taken the father through each of the paragraphs of the application, attempting to identify those that he is still proceeding with, and, with those that he is proceeding with, what orders precisely he is seeking.  There are some paragraphs that he is not proceeding with, for example, paragraphs 1 and 2.  With a number of the other paragraphs, they are, as the father himself ultimately conceded, not in the form of an order sought from this court.  Some of them are simply statements, others seek leave to do various things without in any way framing an order that this court could make. 

5. As a result of that - and I have given brief reasons as I have worked through each of the paragraphs with the father, and I am not going to repeat all that I have said already I propose to dismiss all paragraphs of the application save and except - at this stage anyway - paragraph 4.

6. With paragraph 4, that is a paragraph which has the semblance of an order sought, namely, that the Independent Children's Lawyer be removed from this case immediately.  It seems - and the father has confirmed this - that the balance of paragraph 4 sets out in general terms the reasons that he puts forward for the Independent Children's Lawyer to be removed.  Upon reading that, it is immediately obvious that the father has put insufficient factual material before this court in that paragraph, and which, as I say, is repeated in the affidavit, to justify an order being made in the terms that he seeks.  He makes general statements such as

   “This lawyer be investigated for acting inappropriately in many legal ways, and has been 100 per cent biased against me.  The lawyer has failed to look after the interests of my child in many ways.”

7. It is impossible for me to act on such general statements.  There needs to be a specific factual basis set up where the father, for example, gives particular examples of where he says the Independent Children's Lawyer has been biased or has not investigated matters appropriately or has failed to look after the interests of the child.  He simply has not done that.

8. I pointed this out to him, and he then made an application to adjourn paragraph 4 of the application to enable him to present an affidavit, which he says he can do, which will set out, he says, a factual basis in support of that order being made.

9. That adjournment is opposed, and it is that application, namely, the adjournment application, which I need to deal with now.  The adjournment application is opposed on a number of bases but primarily they are these.  Firstly, that the father filed his application on 3 December.  He chose then to confine himself to the documents that he filed at that time, including the so‑called affidavit.  He has been aware that this matter has been listed today for some time.  He has not sought to put any further factual material before this court.  Secondly, this is a matter which is now listed to commence as a trial on 6 April 2009, and to adjourn the matter with all that that would entail – including the need for the Independent Children's Lawyer and the mother to respond - would put in jeopardy this case being able to proceed to trial on that date.  Thus delays would seem inevitable.  However this is a matter which involves parenting orders and it has been going at least since 2002 and maybe longer than that.  It is well past the time when it should be listed for trial and final orders made.

10. Mr Keen for the Independent Children's Lawyer has also raised the issue of waiver.  This does not necessarily go to the issue of the adjournment but it goes to the application itself, in a sense, and thus has an impact upon the adjournment application. 

11. Mr Keen has referred me to an affidavit of the Independent Children's Lawyer filed on 22 November 2007 and sworn on 9 November 2007.  There is a letter annexed to that affidavit penned by the father where he makes the same sort of allegations that he is now making against the Independent Children's Lawyer and says, in effect, in that letter, that he will be taking action, he will be taking it to the High Court, and doing this, that and the other about it.  However, he did not do anything.

12. There is ample authority which would suggest that in those circumstances the father has waived his ability to now bring this application, and to my mind that submission has merit.  However, as I say, that does not directly address the issue of the adjournment.  The primary issues in relation to the adjournment are that the father has not filed any further affidavits when he has had the opportunity to do so and the fact of the trial being so close.

13. In my view the application for adjournment should be dismissed and I propose to do so.  This matter simply has to get on for trial, and it now has a trial date.  As far as I am concerned, the father has had ample opportunity to present proper affidavit material to this court in support of that application.  He has chosen not to, and he now has to in effect suffer the consequences of that, namely, consideration of his application on the affidavit material that has already been filed.  Thus the application to adjourn should be dismissed.

14. That then leaves the application as it stands, with the supporting material that has been filed.  As I have already indicated, there is no factual basis put in the affidavit in support of the application which would allow me to make the order that the father seeks.  It is too general.  There are no specifics.  There are no examples.  There is nothing on which I could base an order in the terms that the father seeks.  Separate to that, as I said, I find merit in Mr Keen's submission on the issue of waiver.

15. For all of those reasons I propose to dismiss the application seeking the removal of the Independent Children's Lawyer.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland

Associate: 

Date: