Simons & Anor and Simons & Ors

[2014] FamCA 435

FAMILY COURT OF AUSTRALIA

SIMONS AND ANOR & SIMONS AND ORS [2014] FamCA 435

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournment

Family Law Act 1975 (Cth)

APPLICANT WIFE: Ms Simons

2^ND APPLICANT: Ms M Simons

RESPONDENT HUSBAND: Mr Simons

2^ND RESPONDENT MATERNAL

GRANDPARENTS:

Ms C Sanna and Mr E Sanna

3^RD RESPONDENT MATERNAL AUNT: Ms F Sanna

INTERVENER: Department Of Human Services

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 2476 of 2010

DATE DELIVERED: 26 May 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 26 May 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT

WIFE:

Ms M Baczynski

SOLICITOR FOR THE APPLICANT

WIFE:

Cash & Stavroulakis Lawyers

COUNSEL FOR THE 2^ND APPLICANT: Mr Arnold

COUNSEL FOR THE RESPONDENT

HUSBAND:

Ms K Paull

SOLICITOR FOR THE RESPONDENT

HUSBAND:

Esser Legal

COUNSEL FOR THE 2^NDRESPONDENTS

MATERNAL GRANDPARENTS:

Both in person

THE 3^RD RESPONDENT MATERNAL

AUNT:

No appearance

THE DEPARTMENT OF HUMAN

SERVICES:

Ms Buchanan

SOLICITOR FOR THE

INDEPENDENT CHILDREN’S LAWYER:

Mr Dunstan of Bowlen Dunstan & Associates Pty

Orders

1.That all outstanding applications are adjourned for mention at 9.00am on 15 September 2014.

2.That no party be able to rely upon any affidavit currently filed for the purposes of the ultimate final hearing.

3.That for the purposes of the final hearing:

(a)    The wife file and serve an amended application setting out with precision the orders she is seeking together with any affidavit material upon which she intends to rely by 4.00pm on 18 July 2014;

(b)    Ms M Simons file and serve an amended application setting out with precision the orders she is seeking together with any affidavit material upon which she intends to rely by 4.00pm on 25 July 2014;

(c)    The respondent husband file and serve an amended response setting out with precision the orders she is seeking together with any affidavit material upon which she intends to rely by 4.00pm on 22 August 2014;

(d)    The 2^nd respondent maternal grandparents file and serve an amended response setting out with precision the orders they are seeking together with any affidavit material upon which she intends to rely by 4.00pm on 29 August 2014;

(e)    The 3^rd respondent maternal aunt file and serve an amended response setting out with precision the orders she is seeking together with any affidavit material upon which she intends to rely by 4.00pm on 29 August 2014;

(f)     The Department of Human Services file and serve an amended response setting out with precision the orders it is seeking together with any affidavit material upon which it intends to rely by 4.00pm on 5 September 2014.

4.That the wife have a right of reply by affidavit to be filed no later than 4.00pm on 12 September 2014.

5.That the Independent Children’s Lawyer be at liberty to file any affidavit material up until 4.00pm on 24 October 2014.

6.That in the event that any party fails to comply with the timetable above, unless:

(a)    The trial judge considers otherwise; or

(b)    That party obtains an extension of time from the Registrar responsible for the file,

the parties who have complied have leave to treat that defaulting party as not participating in the final hearing and in relation to that party, the other parties who have complied may seek to proceed on an undefended basis.

1. All parties have leave to issue subpoenae for the production of documents. If a party is represented by a legal practitioner, the registrar shall, upon the certification of the legal practitioner, be satisfied as to relevance.

2. The registrar may vary the filing timetable under these orders.

3. Any rulings required on objections to evidence shall be set out in the case outline.

4. By 4 pm on 31 October 2014 all parties file electronically to … a case outline in one document setting out:

   a.     a concise set of orders to be sought;

   b.     the list of the affidavits to be read;

   c.     the list of objections to evidence requiring a ruling;

   d.     the outline of the issues in dispute.

   AND THE PARTIES SHOULD NOTE:

   A.Upon non-compliance with the timetable under these orders or any amendments made by the registrar, the Court may relist the case for case management purposes requiring the parties to justify why it should not be removed from the trial list.

   B.Affidavits relied upon for previous hearings cannot be relied upon as evidence in chief without leave of the Court.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Simons and Anor & Simons and Ors 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 MELBOURNE

FILE NUMBER: MLC 2476 of 2010

Ms Simons

Applicant Wife

And

Ms M Simons

2^nd Applicant

And

Mr Simons

Respondent Husband

And

Ms C Sanna and Mr E Sanna

2^nd Respondents Maternal Grandparents

And

Ms F Sanna

3^rd Respondent Maternal Aunt

And

Department Of Human Services

Intervener

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. This is an application for an adjournment of the trial of these proceedings.  The application is made by the Independent Children’s Lawyer.  It is now just after 3 pm on what would have been the first day of a three day case.  In the view of the Independent Children’s Lawyer, if all of the things that had been talked about today are indeed put in place, his view is that the case might take at least 8 to 10 days.  I am a lot more optimistic than that because it seems to me that if we have the parties comply with what has been spoken about today, the issues are far more confined than that and the evidence will either support the sort of orders that are being proposed or they will not.

2. It is very sad when a lawyer applies for an adjournment on the basis that the case is a “dog’s breakfast”.  I do not think that I could use a better expression myself, having regard to the fact that this case began in 2010.  I appreciate that in the intervening period, there have been other proceedings such as in the Supreme Court of Victoria.  Needless to say, this case is not anywhere near ready to be heard.  The sad fact about all of that is two-fold.  The first point is that of the grandparents, to use the grandfather’s words, he is not far off dying and he will want to see his grandchildren.  The problem about that, of course, is that he has contributed to the delay by virtue of the fact that the material that he wanted to rely upon was largely unhelpful.

3. The second reason obviously is that these children deserve better than they have been given.  These children have a right to know what their future is, whether it is with their involvement of their mother in their lives, not to mention the extended family, or not.  They are the ones who are being prejudiced by not being able to know what their future holds today.  That is most unfortunate, but no one can say that the court did not try. 

4. The reason why the matter is being adjourned today is that the grandparents were not provided with an interpreter until later in the afternoon.  I made orders earlier in the year for the preparation of a family report.  That was not provided until outside of the timeframe that I expected and one of the litigants who is currently a prisoner in jail has not had the opportunity to digest that report which is very comprehensive.

5. None of the parties to these proceedings, other than the grandparents, realistically could oppose the adjournment.  Whilst it is trite to say that the court ultimately has to determine as to what is in the best interests of children, it is very difficult to do that with one hand behind one’s back.  With the quality of the material before the court today, there is little doubt the court would have been struggling to try and work out what was best for these children.  The sooner the parties to these proceedings work out that it is in their interests, as well as the children, to get that material before the court, the sooner this case will be heard.

6. What I have made very clear today is the timetable I am about to announce is not negotiable.  I have taken into account all of the considerations about people being overseas and I have allowed as little time between the dates as possible, so that there will be a concentrated effort.  Everyone will know exactly what the other parties are relying upon.  I propose to review all of this on 15 September 2014 at 9 o’clock in the morning.  Normally I would do that by telephone, but I think this is a case where I actually need to have everybody here for 30 minutes just to make sure that everybody understands exactly what it is that they are relying upon.

7. There is, therefore, no prospect that when the matter comes back on the next occasion, the case will not be ready.  I have mentioned in discussion that there might be a possibility of November.  I think that is now remote having regard to the fact that this material will not be ready until later in the year.  I am not prepared to waste the court’s resources further by allocating a date without some certainty as to exactly what will be happening. 

8. I make this also abundantly clear:  if a party fails to comply with the timetable that I am now about to pronounce, then, unless the trial judge, and that may very well be me, considers otherwise, or the parties obtain an extension of time from the registrar for the filing of their material, those parties who have complied may treat the defaulting party as not participating.  And, in relation to that defaulting party, any party who has complied may seek to proceed on an undefended basis.

9. I propose also to make an order that there be an outline of argument by 31 October 2014, and I shall put into the order the electronic details for the filing of that outline.  I do not propose that the Independent Children’s Lawyer file another outline because one is already before the court.  That is not to say that he cannot because it may very well be that what he reads in the material suggests an entirely different case. 

10. I appreciate that at least three of the litigants in this court today are without legal representation.  That is not a basis upon which they ought not get legal advice.  There are plenty of legal services around and I have said this before as well.  They need to understand what it is that the court’s function is.  This is not simply an enquiry as to what the court thinks ought to happen.  The court’s function is to determine the case on the basis of the evidence and that evidence must satisfy the court that it is in the best interest of the children for the orders to be made.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 26 May 2014.

Associate: 

Date:  20 June 2014