SUSSKIND & DEAN

[2013] FamCA 161

FAMILY COURT OF AUSTRALIA

SUSSKIND & DEAN [2013] FamCA 161

FAMILY LAW – CHILDREN

Family Law Act 1975 (Cth)

APPLICANT: Mr Susskind

RESPONDENT: Ms Dean

INDEPENDENT CHILDREN’S LAWYER: Grant & Associates

FILE NUMBER: BRC 1299 of 2011

DATE DELIVERED: 6 March 2013

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Tree J

HEARING DATE: 6 March 2013

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Rosen of Rosen Lawyers

THE RESPONDENT:	In person
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER	Mr Westbrook
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER	Grant & Associates

Orders

1. The final hearing of the matter be adjourned for a 5 day hearing commencing at 10.00am on Monday 6 May 2013 in the Brisbane Registry of the Family Court of Australia.

2. The matter be listed for a compliance check before his Honour Justice Tree at 9.30am on 29 April 2013 and such mention shall be by phone.

3. Ms A is granted permission to act as the McKenzie Friend of the Respondent Mother at the final hearing of the matter, and is permitted to sit beside her at the bar table, advise her and otherwise assist her in the courtroom, but not to address the Court on her behalf.

4. The Independent Children’s Lawyer is granted leave to issue a further subpoenae to Relationships Australia with a view to obtaining updated material kept within their records which are relevant to this matter.

5. The mother shall file and serve her list of documents on which she intends to rely at the final hearing by 4.00pm on 29 April 2013.  

IT IS NOTED that publication of this judgment by this Court under the pseudonym Susskind & Dean 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 BRISBANE

FILE NUMBER: BRC 1299 of 2011

Mr Susskind

Applicant

And

Ms Dean

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is an application by the respondent mother to adjourn the hearing of this trial until no earlier than September of this year.  The mother has filed an affidavit in support of this application, and has identified a number of matters which she says could be attended to, and ought be attended to, between now and September.  They are as follows:  firstly, video footage.  It is apparent that there are interviews by three persons of the child, B.  The mother says that she has yet to see an interview conducted by Sergeant C in 2011, and she has yet to see, but has got a transcript of, an interview with a counsellor from the D Church, also conducted in 2011.

2. Whilst it is undesirable that the mother may not yet have had an opportunity, or to the extent that she has had an opportunity, not availed herself of that opportunity to see the relevant materials, in my view, that of itself is not a matter which is sufficient to displace a matter which has been listed for trial now in excess of eight months.  In any event, I am told by Mr Westbrook, counsel for the independent children’s lawyer in this matter, that the 93A interview has been seen by his instructor and the relevant transcript of the D Church has been made available to the relevant persons.  It doesn’t appear as though there is any new material which has been disclosed by the child during the course of those interviews which could occasion the mother surprise.

3. The next matter relied upon by the mother is an updated family report.  Not only is there no suggestion by the independent children’s lawyer that there is a need for an update in any event, if there are additional matters which have transpired since the last family report, those are matters which can be explored with the consultant during the course of her evidence.

4. The third matter relied upon by the mother relates to reportable counselling which arose in somewhat unusual circumstances by order of Forrest J made 20 April 2012.  Order 11 provided, as follows:

   The independent children’s lawyer … use his best endeavours to ensure that [Mr E] is engaged in the process of reportable therapy with these children and these parents as soon as possible.

5. It appears as though Mr E – or perhaps Dr E may be the more appropriate description – is reluctant in the extreme to become involved in the process of reportable therapy because, I’m told, he perceives it as something of an oxymoron.  I am satisfied that the Independent Children’s Lawyer has used his best endeavours to involve Dr E, but that that has simply not borne fruit.  There is no suggestion of an alternative;  it’s not suggested there may not be an alternative found, but no one presently has on foot before me an application for a substitute to Dr E to provide reportable therapy.  Therefore, it does not appear to me as though adjourning this matter until September is likely to avail the mother of any reportable counselling which would then form part of the material before me.

6. The next matter relied upon by the mother is the extended period in which there could be supervision of the father’s exercise of contact with the child.  As I understand it, there has been some months now of supervised contact, and the report from Relationships Australia, who was the supervisor of that contact, is unremarkable in that it suggests that the father’s contact has been appropriate.  I cannot presently identify any advantage of a further six months of reporting in relation to that contact.

7. The next matter relied upon by the mother was to enable her to finish inspecting the subpoenaed material.  Whilst I expect, by virtue of the mother’s literacy issues, that the inspection of subpoenaed material is an onerous one, and whilst I note that she has seemingly been diligent in attempting to become the master of that material, I think there is probably some merit in what Mr Westbrook told me, namely that it may not be that there is any real advantage to be gained by permitting the mother an extensive period of time in which to further review that material.  I would infer that the Independent Children’s Lawyer, in discharge of his duties, has familiarised himself with the subpoenaed material, and again, in discharge of the Independent Children’s Lawyer’s duties, has culled that material which is germane to the conduct of these proceedings before me.

8. There is a further matter relied upon by the mother in relation to domestic violence proceedings.  I cannot presently determine that that is a matter which tells in favour of the grant of an adjournment.  The next matter relied upon by the mother is access to missing documents.  Her affidavit does not descend to any detail as to how an extended adjournment might assist her in obtaining missing documents, and I place little if any weight upon that consideration.

9. There is next relied upon by the mother the prospect of filing further affidavit material.  It appears, from the submissions of Mr Westbrook, that the mother has, in July of last year, filed extensive affidavit material, and it appears as though that is to form the backbone of the mother’s case.  I accept that there may be the need for some updating material of events that have transpired since July of last year, however, that is a matter which, assuming it cannot be attended to between now and the start of the trial, is a matter which could be addressed by oral evidence-in-chief being elicited from the mother during the course of her evidence-in-chief.

10. The ninth matter relied upon by the mother was, in her submissions, at least, probably one of the significant matters, and that is the prospect of legal representation.  The mother, as I’ve already indicated, has some literacy problems, and she describes in her affidavit that she barely attended school in years 8, 9 and 10, and did not complete year 10.  She says that she has been assessed as suffering an intellectual impairment and has extremely limited literacy skills.  She says she has difficulties clearly articulating herself.  I have no reason to doubt any of that material and accept it.

11. I am told that the mother had, until sometime, it appears, last year, been in receipt of legal aid, and had a solicitor acting for her.  It appears as though – at least it is reasonably possible – that that legal aid was lost by virtue of the funding body being under the apprehension that the mother, without reasonable excuse, had withheld the children from contact with the father.  I should say that if that be the basis upon which funding was withdrawn, then that seems unfortunate, because I note, at least according to handwritten notes and reports filed, that an application for contravention based, it appears, upon a failure to make children available for contact was, in fact, dismissed.

12. However, it is incontestable that the mother has lost legal assistance, or legal aid, more precisely, and that she has used her best efforts to appeal that decision without success.  She tells me that she has got to the end of that appeal process and there is no further prospect of legal aid from the Queensland Legal Aid Commission.  On the other hand, the mother has recently obtained assistance from the Women’s Legal Service, and in part, sought to adjourn this matter in order that she could have the benefit of further assistance from that organisation.

13. I think, upon Mr Westbrook’s instructing solicitor checking with the Women’s Legal Service, the prospect of there being assistance at trial for the mother from the Women’s Legal Service would have to be judged as slight, and in any event, I’m aware, from my own experience, that such bodies rarely have a policy of providing trial assistance.  On the other hand, it may well be that there could be some further assistance in the drawing of a trial affidavit and the like, however, again, I say that to the extent that that would comprise updating material, it could be addressed by way of oral evidence-in-chief.

14. Therefore, against all of those considerations, it appears to me, particularly bearing in mind that this has been a matter that has been listed for trial for many months, and the trial in this month was identified late last year, and this being a matter which has been designated Magellan, none of the material, either separately or collectively relied upon by the mother as justifying the adjournment is sufficient to persuade me that the matter should stand adjourned.

15. On the other hand, I am conscious of some practical considerations.  The first is that it is now ten to 12 on day 1 of the trial – a trial that was listed for three days.  Even with the best endeavours, it is unlikely that the time which has been lost in dealing with this application can be regained within the time listed for the trial.  Moreover, somewhat worryingly, Mr Westbrook identified that if the matter were to be listed afresh, it may be more conservative to give an estimate of five days for the hearing of the trial.  From my part, I would have to say that, looking at this matter, it appears unlikely that it would be able to be resolved, including submissions, within three days, and virtually impossible that it could be resolved, if it were to commence now, between now and Friday afternoon.

16. I’ve advised the parties that the matter can be listed for a five-day hearing commencing on Monday, 6 May, and neither party sought to dissuade me from the benefits of conducting the trial in one block rather than it being a trial that would be part-heard when it concluded before me on Friday.  Therefore, in all the circumstances, while I refuse the mother’s application for an adjournment to September, I do adjourn the matter for trial to commence at 10 am on Monday, 6 May before me in Brisbane.  Before I adjourn the court, however, I should say that it would be my intention, if there are other housekeeping matters that can be dealt with during the balance of the morning or, indeed, this afternoon, subject to counsel’s convenience, it would seem sensible to deal with those now.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 6 March 2013.

Associate:

Date: 19 March 2013