SIMPLOT & DEENE

[2012] FamCA 1073

FAMILY COURT OF AUSTRALIA

SIMPLOT & DEENE [2012] FamCA 1073

FAMILY LAW – Non attendance of Respondents solicitor.

APPLICANT: Mr Simplot

RESPONDENT: Ms Deene

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 11902 of 2007

DATE DELIVERED: 5 December 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE:

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Thomas

SOLICITOR FOR THE APPLICANT: Thexton Lawyers

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT: Michael Reid Legal

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Ms Hannan

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

McKean Park Lawyers

Orders

IT IS NOTED that publication of this judgment by this Court under the pseudonym Simplot & Deene 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 11902 of 2007

Mr Simplot

Applicant

And

Ms Deene

Respondent

REASONS FOR JUDGMENT

1. This matter came before me on Monday.  It was due to start as a five-day hearing in relation to all the parenting arrangements in relation to 11-year-old B, who clearly needs finalisation to these proceedings that started over a year ago, and followed upon proceedings several years ago which had resulted in consent orders in 2008. 

2. Late last year, B changed residence from his mother’s home to his father’s home, in circumstances where there is a huge dispute between the parties as to how that occurred, and that huge dispute has continued.

3. What is clear on the record is that there is evidence filed by the father, and by the ICL which, in itself, suggests some very serious mental health issues with the mother and which also, in itself, suggests some very strongly expressed views by B as to his fears in going back to his mother, and which also suggests a very serious risk to him in spending time with his mother.  I emphasise that what I do not have is material from the mother, and, of course, if there were material by the mother, it might cast all those concerns in quite a different light.

4. The problem for the Court today is that the mother has had every opportunity to file material.  The case management in this case was conducted it appears, appropriately, by Registrar Field. The father was to file material first and the mother was to respond.  It transpired that he did not file his material on time and there was a mention before the Registrar where she granted him an extension until 19 November to file material.  The mother was then to file by 26 November. 

5. In the event, Mr Simplot filed his material on 20 November.  That is one day late.  I already, in another set of reasons on Monday, noted that he did file another affidavit on 29 November.  That affidavit did not take matters very much further, but he chose to do that, and unfortunately, it was poorly put together and so it was re-filed on 30 November, which was the Friday immediately preceding this trial.

6. On Monday, Mr Michael Reid appeared as solicitor for the mother, and in what appeared to me – and the subsequent events have fortified me or fortified me in that view – to be opportunistic on his part, he referred to the fact that the father’s material was late, and he also referred to one affidavit filed by the ICL late in the piece – that is the affidavit of the mother’s brother – to explain why he had not prepared the mother’s material. 

7. Now, in fact, Monday was largely lost to an oral application made by Mr Reid to have the ICL removed.  He failed in that application.  Time was then spent dealing with some sort of attempt at an adjournment on Mr Reid’s part.  Finally, Mr Reid agreed that the mother’s material was almost ready and that he would have it available by 9.30am yesterday morning. 

8. Mr Reid did not have the mother’s material available by 9.30 yesterday morning, and there was a costs application.  I made an order that he personally pay the costs of the ICL and counsel for the father,  yesterday’s costs thrown away, on the basis that he himself conceded that he had “over-reached” in his claim that he could have the documents ready by yesterday morning.  I also made an order for costs against the mother for the preceding day’s costs thrown away.  Mr Reid said that he would be meeting those costs himself.  Why that would be so, I do not know, but that is what he told the Court.

9. The matter was adjourned until this morning and there was an order for the mother to file and serve any material upon which she seeks to rely by 9 am today.  That did not happen.  Mr Reid sent an email to the parties and to the Court saying that he would be at Court with the material at 10 o’clock.  At 10 o’clock, he did not appear.  I then stood the matter down and asked that the ICL try to contact Mr Reid.  I must say the mother was not present in Court either.  At 11.58am, or thereabouts, the mother appeared.  The ICL appeared with counsel.  Mr Thomas, counsel for the father, appeared.

10. Mr Thomas recounted to me that he had spoken to Mr Reid at 10.40am.  Mr Reid told him that the material was in disarray, and that it would be 20 minutes until he could arrive at Court, but then in another part of the conversation, he said that he had 30 minutes still to go in sorting the material.  He wanted the case stood down until 1 pm.  Ms Hannan, for the ICL, told me that Mr Reid had told her he was trying to arrange a barrister to appear here to tell me of the delay.  Ms Deene, the mother, told me that Mr Reid was having problems with his printer.

11. I made it clear that as he was in South Melbourne, and by then it was about 11 o’clock, he should come to Court, whatever state the documents were in, and that he should be able to be at Court by 11.30am, given his proximity to the city, and even allowing for parking time. 

12. At 11.46am, or thereabouts, I came back into Court.  Ms Hannan told me that at 11 am she had spoken to Mr Reid in the presence of the mother and father’s counsel.  She had told Mr Reid he had to be here by 11.30am.  At 11.29am, he rang her and said he was still packing up the material.  I stood the matter down till 2.15pm.

13. At about 2.20pm, Mr Reid was still not here.  The mother passed on to me that she had told him that I had referred to my powers to issue a warrant for his arrest.  He had told her that he wanted to finish the documents, he had left his office so as not to be arrested, he had spent all day yesterday in the subpoenas room, things had come to light that had compounded the preparation of material, and he was happy to be arrested in the morning when he brings the documents to Court.

14. Ms Deene insists that the only person who can represent her properly is Mr Reid because he knows the complex history of the case.

15. Mr Thomas, for the father, has sought costs on an indemnity basis today, presumably against Mr Reid, and I will reserve that question in case Mr Reid is here tomorrow.  He can be heard.  And he says that really he has no assistance he can give me beyond a proposal to return in the morning in the hope of getting the case heard. 

16. Ms Hannan too is very concerned about the matter starting because she has had conversations with C Centre.  The mother’s only time with the child is currently supervised by C Centre, and obviously if that option runs out, then that leaves B and his mother with no opportunity to see each other.  Until I have heard the case, I do not know whether that is a good thing or a bad thing, but until I have heard the case, I would rather have in place the arrangement that exists rather than having that changed only because the logistics do not permit it any longer.

17. In all my years of experience in practice and on the bench, I have not been met with the situation of a lawyer who simply refuses to come to Court.  There are a number of issues for me and several of them really do not assist me in doing what I am primarily responsible to do, and that is, to look after the best interests of this child.  The first is that, obviously, I could issue a warrant for Mr Reid’s arrest.  I am not sure how that will help advance the case or help B.  The second thing is, of course, I could report him to his professional body, and whilst that is a course that is open to me at any point, again, if it was something I pursued right at this point, I am not sure how that would help B.

18. So what I have said to Ms Deene is this.  This case should have been ready well in advance of this week.  It then should have been ready on Monday.  It should have been ready on Tuesday.  It should have been ready today, Wednesday.  If I were to say to her right now that the case must go on, that would not give her the opportunity to employ another lawyer or to organise her thoughts as to how she should handle the case. 

19. In my view, the appropriate course is to adjourn it one time now until tomorrow morning with the forewarning to her that is very clear that unless she is here, represented, with documents, the matter will go on in any event.  To put it a better way, even if she is here without Mr Reid and without documents, the case will go on in any event.

20. I will give her the indulgence of being able to proceed without filing formal documents in that case.  However, and although she is the respondent, it is well within my powers to change the order that the parties proceed in, and it is certainly in B’s best interests if I have her give her evidence on an oral basis first and then give the other parties the opportunity to consider that evidence and take instructions before they cross-examine.  That is the fairest I can possibly be to enable her to put whatever she wants to put before me as to B’s best interests.

21. She has to understand that this situation, brought about not by the other parties at all, but by a lawyer that she at this stage is insisting on retaining, is one which I could take a very different view if I chose.  I could regard the matter as unopposed, because she has had ample opportunity to file material and she has not.  I do not propose doing that because I think that she genuinely wants to put an issue before me that should be tried.  I would very much welcome that so that I can make a determination that I think is in B’s best interests.  Whether it is one that pleases the mother or displeases her, or pleases the father or displeases him, I just want to be able to actually hear and decide it.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau delivered on 5 December 2012.

Associate: 

Date:  5 December 2012