Smythe and Leopold

[2012] FamCA 349

FAMILY COURT OF AUSTRALIA

SMYTHE & LEOPOLD [2012] FamCA 349

FAMILY LAW - PRACTICE AND PROCEDURE – Mother’s oral application for adjournment dismissed

Family Law Act 1975 (Cth)

APPLICANT: Mr Smythe

RESPONDENT: Ms Leopold

INDEPENDENT CHILDREN’S LAWYER: Mr Patrick Fitzgerald

FILE NUMBER: LNC 391 of 2008

DATE DELIVERED: 17 April 2012

PLACE DELIVERED: Hobart

PLACE HEARD: Hobart

JUDGMENT OF: Benjamin J

HEARING DATE: 17 April 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Turnbull

SOLICITOR FOR THE APPLICANT: Ogilvie Jennings

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mr Fitzgerald

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Legal Aid Commission

Orders

1. The mother’s oral application for adjournment is dismissed.

   IT IS DIRECTED

2. A copy of the reasons for these orders be taken out and placed on the court file..

   IT IS CERTIFIED

3. Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Smythe v Leopold 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 HOBART

FILE NUMBER: LNC 391 of 2008

Mr Smythe

Applicant

And

Ms Leopold

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. There is a further application by Ms Leopold in relation to the adjournment of the proceedings.  She has informed me this morning, and there is no issue, that she has now received all of the documents which had been presently held by her legal practitioner.  She had not, it seems, informed the Independent Children's Lawyer of the lack of documentation until yesterday, when she informed the Court.  As a consequence of that, I arranged for the Independent Children's Lawyer and the legal practitioner for the father to forward that material to the mother.  The mother complains that the process which has been put in place in unfair and that it lacks procedural fairness. 

2. What this Court has endeavoured to do, is to facilitate in every possible way, the involvement of the mother in these proceedings.  It has done so initially, by listing the matter in February 2011, so that the matter could be heard urgently after the change of residence in December the preceding year.  The mother came along to the Court at that time and either directly or through counsel sought an adjournment of the proceedings so that she could obtain psychiatric or psychological evidence to assist her in the proceedings.  That application for an adjournment was accepted.  The matter came back before the Court and the proceedings were adjourned.

3. The matter was listed for hearing in June of 2011.  At that time, the mother sought a further adjournment, although I note it is conceded, it was in the light that the matter was unlikely to have been reached, and the mother had not filed any material despite an order made by a registrar in May of 2011.  Therefore, at the request of the mother, the proceedings were adjourned, yet again, until later in the year into November.  Prior to November the mother sought a further adjournment of the proceedings and I think it was in about September 2011.  In September 2011, these proceedings were listed in December 2011. 

1. The proceedings came back before me for mention in December 2011 and the hearing date, the third hearing date, was allocated for four days, commencing 16 April 2012, some four months ahead, and further directions were made for filing material.  On 29 March, the Independent Children's Lawyer wrote to the mother urging her to file her material.  The matter came back yesterday and the mother, relying on a very old medical report, sought an adjournment and that application was unsuccessful.  It was treated as important by both the Independent Children's Lawyer and the legal representative for the father, that the mother, Ms Leopold be involved in these proceedings.

2. There was consideration of transferring the proceedings to Launceston, but I determined, in the circumstances, that was not appropriate, for this week at least.  I arranged for the Independent Children's Lawyer and the solicitor for the father to send the documents to the mother.  I accepted and directed that the mother could give evidence orally today and suggested to her yesterday that she make at least an outline of what evidence she wished to give.  I changed the process of the Court to enable her to either attend in person or if she chose, to attend by telephone.  In addition I ran through the processes of the Court. 

3. The mother, this morning, said she was overwhelmed by the quantity of documents, and at some levels I can understand that, although many of the documents have been available to her for some time in one form or another, and particularly the experts’ reports.  The mother, quite properly, says that she is not qualified as a barrister or solicitor.  I acknowledge that, and hence I took steps yesterday to explain the process as best I could.  I again indicated to her today, that if the matter proceeds with her being present, that I would provide her with assistance in terms of the processes of the Court without providing her with legal advice.

4. This matter has to be determined.  It has been before the Court on numerous occasions.  The father’s submission yesterday were powerful in terms of the need for finalisation to proceedings, if for nothing else, and most importantly more to the point, for the child who has had to undergo proceedings for some time.  Another adjournment in my view, would not serve the interests of this child.  It is clear that it is open for the mother to remain and participate in these proceedings and I positively urge her to do so.  The Independent Children's Lawyer has opposed the adjournment but he has also urged the mother to remain in the proceedings.  And I repeat those matters.

5. However, I do not in the circumstances intend to facilitate a further adjournment of these proceedings and the application by the mother is dismissed.

6. I note that at 10.32 am the mother, Ms Leopold has declined to participate in the proceedings. 

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 17 April 2012.

Associate:     

Date:              17 April 2012