Sellers and Appleby

[2017] FamCA 728

FAMILY COURT OF AUSTRALIA

SELLERS & APPLEBY [2017] FamCA 728

FAMILY LAW – PRACTICE AND PROCEDURE– ADJOURNMENT – mother’s application to adjourn trial on the basis that she had not filed all the evidence of experts that wanted to file – adjournment opposed – application refused.

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

Aon Risk Services Australia Limited v Australian National University [2009] HCA 27
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305

APPLICANT: Mr Sellers

RESPONDENT: Ms Appleby

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 1090 of 2015

DATE DELIVERED: 21 September 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 18 September 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Ms Dellidis
SOLICITOR FOR THE APPLICANT:	Peter Baker & Associates

COUNSEL FOR THE RESPONDENT: Mr Tesoriero

SOLICITOR FOR THE RESPONDENT: Chinka (Hep) Steel

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Agresta

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Trapski Family Law

Orders

1. That the mother’s application for an adjournment is refused

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 Sellers & Appleby 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: MLC 1090  of 2015

Mr Sellers

Applicant

And

Ms Appleby

Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. As the parenting proceedings began between Mr Sellers (the father) and Ms Appleby (the mother), the mother’s counsel applied for an adjournment. I refused the application and indicated I would later give reasons. These are those reasons.

2. The applicant is the father. He and the mother were married and have now been separated for several years. They have two children who are the subject of the substantive parenting dispute. Because of allegations of sexual impropriety against the father raised by the mother, his time with the two children has been denied now for over 18 months.  The application was allocated as a “Magellan” case by the Court and managed accordingly but when it was determined that it was ready for trial, I listed it for directions in June 2017.

3. The mother was then without legal representation but she had a very clear position vis-a-vis the father. She proposed that there be no contact between the children and the father. She said that she intended to rely upon the evidence of a paediatrician, an occupational therapist, the children’s “CASA counsellor” and a police officer.

4. The final hearing was set for 18 September and a timetable laid out which required the mother to file all of that evidence by 11 August. None of the proposed evidence was filed except for her own affidavit. Strikingly, the mother by that time had the assistance of lawyers who came on the court record and, for the purposes of the final hearing, briefed counsel.

5. It was counsel who sought an adjournment on the basis that there had been a “miscommunication” because the mother thought that her solicitor was obtaining evidence from the people mentioned earlier. It was submitted that the court may be assisted by that evidence.

6. The adjournment was opposed by counsel for the father and the Independent Children’s Lawyer. Unsurprisingly, the father’s position was that he had long awaited this hearing during which time, he had been excluded from the lives of his children. In 2016, he was also charged by police with raping the mother for an incident said to have occurred in 2010 but the Office of Public Prosecutions filed a nolle prosequi or no bill. There were also hearings in the Federal Circuit Court and a number before the Senior Registrar in this Court. Thus, the father had a basis to say it was time to bring the matter to an end.

7. From the mother’s perspective, no explanation was given other than that the exercise of gathering the evidence was not done. I consider that quite remarkable having regard to the obvious fact that she attended upon her solicitors to complete her own evidence in chief and file an affidavit. That evidence was brief.  The solicitors for the husband filed a Notice of Address for Service on 31 July 2017.  Significantly, on 14 September 2017, one month after they had filed the mother’s trial affidavit, they filed a “case summary” which indicated the material she relied upon.  No mention was made of any other material.

8. Counsel for the mother submitted that this new material might assist the court. It is remarkable that a family report was ordered, a fact which the lawyers would have known, yet the material that the mother said she was expecting the lawyers to gather had not been provided to the expert by them to contemplate for the purposes of the expert’s opinion.  The family consultant had an interview with the mother on 24 August 2017 and read a whole raft of material which included much unnecessary background.  Amongst that material were records produced under subpoena including to the B Town Community Health Services.  That service included a paediatrician.

9. In respect of the paediatrician, a letter prepared at the request of the mother’s lawyers for the purposes of her claim for victims of crime assistance, had been the subject of a subpoena by the Independent Children’s Lawyer. Neither the father nor the Independent Children’s Lawyer objected to that letter being admitted into evidence. It transpires that the letter and the relevant advice to the mother in relation to the assistance arising out of the crime was undertaken by another lawyer.  However, I have presumed that the solicitors for the mother had received a copy of the Independent Children’s Lawyer subpoena so they knew that those records existed and presumably would have looked at them.  Had they done so, they would have known that the letter was prepared for a different purpose and they needed to put something of substance supported by the necessary expert principles (for example Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305).

10. The relevance of the counsellor for the children was also unclear having regard to my concern that such a therapist must work from the point that the incidents reported by one or other of the children had occurred. How that would have affected the outcome of the proceedings was not said.

11. Counsel for the mother also submitted that of recent days subsequent to the mother filing her affidavit, a school teacher had expressed concern about the older child masturbating in class. Nothing had been done by the mother to expand on not only what had happened but what it meant. Evidence about the issue of child masturbation had been otherwise before the court.

12. I gave counsel for the mother an opportunity to inquire about the availability of all of these witnesses and it transpired that they were either away, uncontactable or reticent to say anything without getting advice or a formal subpoena save for a teacher who gave oral evidence which cured the difficulty that counsel for the mother indicated.

13. Having regard to the time this case had been extant and the inexplicability of the lack of preparation other than by one word “miscommunication”, I was not satisfied an adjournment would achieve anything. Counsel had obviously been briefed by the solicitors and no doubt they contemplated what was needed for the trial.

14. Unsatisfactory as all of that may be, the important issue still remains whether or not justice could be done but also whether there was enough evidence to enable the court to make findings and decide what was in the best interests of these two children. Thus, the absent evidence has to be seen in the context of its relevance to those matters.  The evidence of the paediatrician was before the court. She said that the children’s behaviour was consistent with sexual abuse. That was an opinion that, if the mother (or more particularly her lawyers) were to argue, would most likely have required consideration of the single expert witness rules. Nothing was said about that. The same must be said about the counsellor because the court had appointed, and had the benefit of, a family consultant’s evidence, all of which contemplated these evidentiary issues.

15. Counsel for the mother submitted that his client would be entitled to feel that justice had not been done if this evidence was not considered. I reject that on the basis that apart from the fact that the evidence was in her hands, its relevance was still the critical issue. At the directions hearing in June 2017, I raised the question of s 69ZT(3) of the Act because of the very clear position being adopted by the mother. The lack of evidence gives rise to a question whether it was relevant and admissible in this case.   I have the submission of her counsel that the mother considered it might assist; I am unsure how.

16. There was also no indication how this proposed evidence would affect the outcome of the determination of unacceptable risk as it is not the father’s position that the child did not say the words but rather, he had not done anything wrong.

17. In contemplating whether to adjourn a case at the commencement of a trial, in addition to focusing on the matters just mentioned about whether the proposed evidence would meet the test in ss 55 and 56 of the Evidence Act 1995 (Cth), the court may contemplate three positions generally. They are those of the respective parties but also that of the court.

18. In Aon Risk Services Australia Limited v Australian National University [2009] HCA 27, French CJ (reflecting the attitude of the plurality) said of the argument that justice should be the primary focus:

    [30]...Also to be considered is the potential for loss of public confidence in the legal system which arises where a court is seen to accede to applications made without adequate explanation or justification, whether they be for adjournment, for amendments giving rise to adjournment, or for vacation of fixed trial dates resulting in the resetting of interlocutory processes.

19. French CJ went on to say about the waste of court resources (a subject to which I return below):

    [35]It might be said that the adjournment effected by the primary judge's decision to entertain the amendment application and to allow written submissions to be filed and evidence to be put on, and the subsequent delay in his decision, rendered academic any concern about further waste of court resources or inefficiencies flowing from the amendment ultimately being allowed. It might be said that, in those circumstances, to refuse the amendment would be punitive. It is true that a punitive response to the substance of a late amendment application is not appropriate. But neither is a party to be rewarded by weighing in its favour the disruptive consequences of its own application…The further delay, in the circumstances of this case, would be such as to undermine confidence in the administration of civil justice…(my emphasis added).

20. I consider the father has been patient and deserves to have the evidence tested. As I have no understanding of how the proposed evidence would impact upon him and what he would then have to do to respond, the eleventh hour wait is neither fair to him nor fair to the children.

21. The mother has had ample opportunity to prepare and to the extent that any issue arises of her being dissatisfied, she can take that up elsewhere.

22. The court is overburdened with children’s cases where there is a mandate to protect children from abuse. Absent some clear indication that the proposed evidence would do more than “assist”, to further delay this hearing would give rise to a potential loss of confidence in the importance of the court dealing with these cases expeditiously. It is not just a case of the absence of material since the directions hearing that must be considered; this case has been going for years without a proper and full consideration of all of the evidence. It needs a conclusion for the sake of the children.

I certify that the preceding Twenty-two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 21 September 2017.

Associate: 

Date:  21 September 2017