Taggart and Canning

FEDERAL CIRCUIT COURT OF AUSTRALIA

TAGGART & CANNING

[2014] FCCA 1530

Catchwords:
FAMILY LAW – Children – adjournment application granted – final hearing dates vacated – issue of legal representation.

Legislation:

Family Law Act 1975, ss.60CA, 68LA.

AMS & AIF (1999) CLR 160
Hall (1979) FLC 90-713
Andrew & Delaine [2009] FamCAFC 182
Makita & Sprowles (2001) 52 NSWLR 705
Dasreef Pty Ltd v Howchar (2011) 277 ALR 611
Dennis v. United States (1950) 339 U.S. 162
Sali v SPC Ltd (1993) 67 ALJR 841
Aon Risk Services Australia v Australian National University [2009] HCA 27
Smith & Western Australia [2014] HCA 3

Applicant:

MR TAGGART

Respondent:

MS CANNING

File Number:

SYC 5002 of 2009

Judgment of:

Judge Harman

Hearing date:

4 April 2014

Date of Last Submission:

4 April 2014

Delivered at:

Canberra

Delivered on:

4 April 2014

REPRESENTATION

Solicitors for the Applicant:

In person

Solicitors for the Respondent:

Ms Harvey

Counsel for the Independent Children’s Lawyer:

Mr MacDiarmid

ORDERS

Accordingly, I make orders as follows:

I vacate the listing of these proceedings, 7 to 10 April 2014;
The matter will be allocated dates for hearing, estimate four dates, on times and dates to be advised and as expeditiously as the Court can accommodate.

IT IS NOTED that publication of this judgment under the pseudonym Taggart & Canning is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT CANBERRA

SYC 5002 of 2009

MR TAGGART

Applicant

And

MS CANNING

Respondent

REASONS FOR JUDGMENT

These proceedings come before the Court today Friday, 4 April at the behest of the Respondent mother.
The matter is scheduled to proceed for a four day hearing commencing the next working day, Monday, 7 April 2014. That is not to suggest that there has been delay in the request for relisting but purely that the circumstances which have given rise to the request have been of recent occurrence.
Today the parties all appear before me by telephone link as a consequence of my sitting in a different Registry. Such is the expedition given to the proceedings.
The father, who is the Applicant, appears in person.
Ms Harvey a solicitor from the Law Society of New South Wales appears for and on behalf of the mother on an amicus basis.
Mr MacDiarmid appears as the Independent Children’s Lawyer representing the interests of both children in these proceedings.
The subject matter of the proceedings is the future welfare and care arrangements for the two children of this relationship.
The parties have a long history of litigation before this Court. As a consequence these children have, for the majority of their lives, lived in the “war zone” created by their parents’ litigation typified by distrust towards, if not active hatred of, each other.
As a consequence of that warfare these children naturally and explicably have expressed to both the family report writer and the Independent Children’s Lawyer representing their interests a desire for that warfare to end, cognisant, as they are, of the attitude of each parent towards the other.
The children’s maturity would appear abundant whereas some issue may arise as to the cognisance and maturity of the parents. These children realise that the warfare between their parents will not end and they have thus expressed views as to their future arrangements taking into account the fact that the war will continue and they thus now simply seek refuge by escape.
The application made to the Court today is to vacate the four day trial listed next week. That occurs in circumstances whereby the mother had, some little time ago, although the specific date of the application is neither known nor relevant for today’s determination, made application for assistance to the Law Society of New South Wales through their excellent program providing pro bono legal assistance to parties. One would hope this would also extend to and include the similarly excellent pro bono representation program provided by the Bar Association and allow the mother’s representation by Counsel.
The application for adjournment is based solely and squarely upon the desire of Ms Canning to be legally represented in these proceedings. In that regard it is to be noted that:
a)Ms Canning is the Respondent to this round of litigation, it being the culmination of many previous rounds. The litigation between these parties is almost akin to a home and away season and one would hope, these children now 15, that this hearing will be their grand final;
b)Ms Canning has previously been legally represented in the proceedings but that representation terminated some time ago for reasons that are not before the Court (and need not be);
c)The Family Report that has been produced in the matter, to which I will return shortly in addressing the submissions put to the Court, has recommended a change in the children’s care arrangements such that they leave the care of their mother, with whom they have lived since birth and since the separation of their parents, and pass into the care of their father.
To the extent that this application is governed by section 60CA of the Family Law Act 1975 (and as an interlocutory application in a parenting case I accept that it is) the best interests of the children are paramount.
One must also have regard to the interests of the parents. That arises by reference to the most sage and erudite discussion of such matters by Kirby J in AMS & AIF (1999) CLR 160:
The legitimate interests of parents are not irrelevant, simply subservient to the children’s best interests which are paramount.
The Independent Children’s Lawyer has urged that the dates be retained on the basis of a desire for finality in the children’s arrangements and having regard to the above matters particularly these children’s exposure to chronic and ongoing litigation.
To that end one is also reminded of the words of Quinn J of the Ontario Superior Court:
These parties have treated the Court as their own private banquet table and feasted upon it.
In their feasting each of these parties has left the table rarely and only briefly since their separation and on each occasion has quickly felt famished and again continued the feast. Their appetites for conflict would not appear satiable.
The independent children’s lawyer’s submissions are not criticised. They are entirely appropriate. It is the role of the Independent Children’s Lawyer, as defined clearly in section 68LA of the Act to form a view, based upon the available evidence, as to that which is in the children’s best interests and to agitate the Court that this be so.
I have no doubt whatsoever that the position of the Independent Children’s Lawyer is informed by presently available but untested evidence as to the children’s views, wishes and desires principally to see a conclusion to this round of litigation even though I am entirely satisfied it will not, for one moment, address or ameliorate the conflict between these parents.
The conflict will likely continue because the parents, from that which is before the Court to date, would appear insightless as to its cause, its genesis or its impact on their children. These are matters that can be more fully and properly explored at final hearing.
The Independent Children’s Lawyer does not oppose adjournment if the adjournment is not for a significant period.
The lack of resources of the Court is well known. Within the Parramatta Registry the number of judicial officers will shortly decrease by one and without replacement leaving 4 Judges to deal with approximately 1,700 matters. Thus the workload of the Court, set against its resources, tends to significant delay.
The Parramatta Registry of the Court has one of the longest delays from filing to hearing in the Commonwealth; an average of approximately 17 months. That is regrettable but is in no way a reflection upon the hard work of its staff. Even making allowance for resolution of matters without trial the reality is that the volume of work is such that the 17 month average delay is, in fact, miraculous in its brevity and a testament to the work of the Court and its employees.
A significant delay in concluding these proceedings could not be countenanced. The damage that has already been wrought to these children is vast.
The circumstances of this case are such that any adjournment, if it were granted, would compel other matters, other litigants, being delayed, their matters moved, their hearings vacated to ensure that this matter could proceed. That is a step that, in light of the issues of significance relating to the welfare of these children is, regrettably, warranted.
The father, for his part, opposes the adjournment. Again, that is no criticism. Mr Taggart’s frustration with the process is evident and apparent and has been on each occasion that the matter comes before the Court. Mr Taggart is annoyed that the delay from the allocation of hearing dates to the present has already been in the order of eight months. The file is not available to ascertain the exact length of delay but I accept that hearing dates are many months after the release of reports and the matter clearly requiring trial.
Mr Taggart has referred to the clear recommendations made within the Family Report and which agitate for and support a change in the children’s care arrangements. There are two matters of significance that arise from that submission.
Firstly, the report certainly has clear recommendation. However the evidence of the report writer, and that is all the report represents, is untested. The report writer is required for cross-examination. There are voluminous documents produced to the Court on subpoena many of which the report writer has not yet had access to (and appropriately so as until their tender is identified as likely the material should not be inspected by the report writer). There are many matters which will need to be put to the report writer in cross-examination.
As the Full Court has observed sagely and appropriately, “There is no magic in a family report”[1]. It forms part of the evidence and only part of the evidence. The Court is not bound by the report writer’s recommendations. The Court need not follow the recommendations.
[1] Hall (1979) FLC 90-713 and as reaffirmed more recently by the Full Court in Andrew & Delaine [2009] FamCAFC 182.
The Family Report is not the judgment of the Court. It is a portion of the evidence before the Court and which; to the extent that recommendations are made they are made in reliance upon reportage of the parties and perceptions arising from observation and from inspection of material.
The expression of opinion by a report writer, as an exception to the hearsay rules, (see section 79 of the Evidence Act), is permitted. However, the line of authority such as Makita & Sprowles (2001) 52 NSWLR 705 and Dasreef Pty Ltd v Howchar (2011) 277 ALR 611 are applicable to the report. Thus, the report and its recommendations need to be forensically tested and examined as part of the hearing process rather than slavishly followed.
Certainly the report’s recommendations are clear and based upon the most stark and compelling background of conflict. However, its recommendations and the assumptions underpinning them must be appropriately tested.
The issue that follows from the above is that the report, recommending a change as it does, has significant impact and potential prejudice to the interests of Ms Canning. Her interests and her right to due process are not irrelevant.

Due process

Due process is fundamental to everything done by the Court. Indeed, it is the essential element of the judicial process which identifies it from other processes.
There is a vast body of authority dealing with and addressing the importance of parties being before the Court, properly heard and appropriately represented. The benefits of legal representation need not be questioned. The position which Ms Canning advances is that she wishes and desires that opportunity.
It is to be noted that this is not the United States and this is not a capital trial and thus provisions such as the Eighth Amendment of the United States Constitution do not apply. The Court cannot appoint attorneys to represent people when they are unrepresented. It is entirely a matter for them to arrange.
Ms Canning has evinced and expressed a desire and intent to be represented in circumstances whereby the evidence, as it presently stands, untested as it is, is highly prejudicial to her. She has taken active steps to secure representation.
She has now been put into a position whereby that representation can and will be made available to her within a relatively short period of time. The period of time estimated, in light of the complexity of the matter, its history and the volume of material to be considered and instruction taken with respect to is remarkably brief.
There is no right to legal representation. However, it is a clear and significant benefit to a party and the representation of their interests in any controversy before the Court, when they wish to be represented, and must be seriously addressed.
It is to be noted that Mr Taggart has chosen to be self-represented having expressed dissatisfaction with prior legal representation. Additionally, Mr Taggart suffers from a disability, dyslexia, and as a consequence has been assisted by his partner, acting in the nature of a McKenzie friend, throughout the proceedings and with the Court’s permission.
In opposition to adjournment Mr Taggart asserts, on the basis that both parties have, to date and for some little time, been self-represented, that “there could be nothing fairer than that” continuing. In speaking to that proposition Mr Taggart has indicated that the two parties, if both self-represented, would fall within the descriptor of “the blind leading the blind” and that position of both parties being equally disadvantaged is “the fairest way possible”.
With the greatest of respect I could not disagree more with

Mr Taggart’s proposition.
“Fairness” is not a term generally used by the Court. Descriptors such as “justice and equity” are preferred but fairness is often used, particularly in the context of rules of evidence and due process and representation.
I can think of nothing more unfair than to deny the opportunity to a party who desires to be represented, can now be represented, (albeit with the necessary of a brief adjournment – and the adjournment that will occur will be brief and as brief as the Court can accommodate) to be forced and required to proceed unrepresented. Even absent the right to legal representation the denial of that opportunity is manifestly unfair, indeed, manifestly unjust.
In the words of United States Supreme Court Judge Felix Frankfurter, “there is no greater inequality than the equal treatment of unequals”.[2] It would seem a perverse submission on the part of Mr Taggart to submit that equal disadvantage creates a level playing field and that this would produce the fairest outcome.
[2] Dennis v. United States (1950) 339 U.S. 162.
It is a matter for Mr Taggart if he desires to be self-represented or whether he desires to seek legal representation.
That is not to ignore the reality, of which I am all too aware, that the majority of members of the Australian community cannot afford to be legally represented in proceedings before courts because of the high cost of that representation. The extremely poor, those who meet the means tests applied by the Legal Aid Commission, (which tests I do not criticise – they are entirely appropriate and reflective of their budgetary constraints) are legally represented and well so. However, the level of financial disadvantage required to meet those tests borders on, if not, in fact, being within a category of genuine poverty.
It is well-recognised in many decisions of appeal courts and superior courts both here and overseas, as well as in extrajudicial writing of those who sit within those courts, that in this day and age, the very wealthy are in a position to have their rights well and truly met and represented before the Court, whereas the majority of ordinary working folk, of whom Mr Taggart is one, simply cannot afford it.
Mr Taggart has suggested that if Ms Canning is to be represented, he may then require and seek representation as well. That again, as it has been for Ms Canning, is a matter for him.
Mr Taggart has indicated that he may need to approach the pro bono section of the Law Society to seek similar assistance to that rendered to Ms Canning and thus may need to seek an adjournment himself at some future date. That is a matter for him.
There is no suggestion that Ms Canning has delayed in her approach to the Law Society. In any event that would be one factor only in dealing with the matter.
The fundamental issues are twofold, namely:
a)The children’s best interests being paramount; and,
b)The integrity of the process enshrined by and within due process.
Ms Canning seeks an adjournment so as to be represented. I can think, as I have already indicated, of nothing more nonsensical than to suggest that to deny her that opportunity, to effectively ensure that both parties are self-represented and equally disadvantaged, is appropriate.
The High Court has spoken a great deal, and in a most informed, pragmatic and erudite fashion, regarding the benefit of conclusion of litigation, (see for example the High Court’s decisions in Sali v SPC Ltd (1993) 67 ALJR 841 and Aon Risk Services Australia v Australian National University [2009] HCA 27).
It is the reality in this day and age that Courts, with limited funding and limited resources, must manage their affairs in a fashion so as to ensure, in almost Benthamite, utilitarian fashion that “the greatest good is done for the greatest number”.
The vacation of this hearing will disadvantage the Court’s workload. It will disadvantage litigants in six to eight weeks hence, when the matter will need to be accommodated and will be accommodated. However, it is a regrettable reality that the Court will be sitting each day that week, whether hearing this case or not, as other cases are simply backed up behind it.
The High Court in Sali v SPC has been clear in affirming the importance of finality to parties, not specifically in that case parties involved in family law disputes, but the comments made therein are particularly apt to such circumstances. The cost of litigation is not only financial. They are also emotional and circumstantial. The costs apply to these children as well as their parents.
In this case to date the parties have been largely self-represented and thus their financial cost has been limited to their time from work and the like.
Cost is imposed upon the Court in hearing and determining the case. But the Court’s resources are resources that are made available to the community for good reason and should not be denied to parties who require them.
The cost to the parties and their children extends, however, beyond the financial. There is an emotional cost: parties with their lives put on hold and children deprived of the full attention and competence of their parents.
In this case it is also important to acknowledge, as is always the case in a family law dispute, that the children’s best interests are paramount. Whilst these children are not parties the cost is also borne by them.
Since the separation of these parties, if not before, the cost of the parents’ antagonism, hatred and conflict has been borne by these children.
Mr Taggart submits that the children have “had enough”, that it is totally wrong and cruel to these children to further delay the conclusion of litigation. One can only assume that this submission is put on the basis that Mr Taggart apprehends and perceives that the conclusion of the litigation will occur on day four of the hearing. It may or may not. The matter may need to go over part-heard if not concluded (and these parties have demonstrated they are anything but issue focused and erudite). If concluded judgment, in all probability, would not be delivered on the spot. There would be a delay of at least days if not weeks before judgment is delivered.

Importantly, Mr Taggart’s submission would seem to be based upon a belief that the conclusion of this round of litigation will result in orders being made as recommended by the family report writer as though an inevitability. That may not be so. Even more fundamentally, the fulcrum upon which this submission rests is the erroneous belief that the conclusion of this “round” of litigation – and I use that term advisedly – will bring an end to the matters which create misery and disadvantage for these children, i.e., the attitude of their parents, attitudes each towards the other. That simply will not happen.
No determination made by this Court will change the way these parents behave towards each other and their children, nor the extent to which their children are enmeshed in their conflict. However, a final hearing will end this round of litigation (subject to either party exercising their right of appeal).
Whilst authorities such as Sali v SPC (with which I do not cavil) make clear that there is a benefit to the community and to the parties (and their children) of finality and expeditious albeit appropriate conclusion of litigation, the latter being the more important of those propositions, I am also keenly aware of the decision of their Honours comprising the High Court in Smith & Western Australia [2014] HCA 3 as recently as 12 February this year, therein quoting Lord Atkin from Ras Behari Lal & The King-Emperor, wherein his Lordship concluded:
Finality is a good thing, but justice is a better (emphasis added)
In this case, I am satisfied that there would be a real perception, if not a reality reflected by that perception, of a denial of justice and due process to Ms Canning if the matter were not adjourned. For a delay of six to eight weeks in the hearing of the case – a disadvantage that will be principally borne by the Court and these children rather than either parent – that perception and potential reality can be addressed by allowing her to be legally represented by competent Counsel.
To the extent that Mr Taggart submits that that will “change the playing field”, that we will move from the position that he has described of both parents being self-represented, the blind leading the blind, mutual disadvantage and that being entirely fair, I reject the submission completely.
Should Mr Taggart wish to seek legal representation he is and has at all times during the course of the proceedings been in a position to do so. He has not at any time, since the proceedings were commenced by him in person, made application for adjournment to enable him to obtain representation.
Should he wish to do so now or at some subsequent date between now and the dates that will be allocated to these proceedings, he is free to do so. An application for adjournment by Mr Taggart as may then be made will be dealt with based upon facts and circumstances at the time when and if it is made.
To suggest that both parties being self-represented creates fairness is a nonsense. It simply produces injustice and disadvantage for two litigants, possibly equally, but disadvantage nonetheless.
I am satisfied that in light of the present state of the untested evidence, including the Family Reports the recommendations of which are as strongly relied upon by Mr Taggart and which weigh more heavily against Ms Canning, the Respondent to the proceedings that

Ms Canning should be afforded the opportunity to be represented.
For those reasons, I am satisfied that the dates simply cannot stay.

I certify that the preceding seventy three (73) paragraphs are a true copy of the reasons for judgment of Judge Harman

Associate:

Date: 17.7.2014

[2014] FCCA 1530

4 April 2014

Key Legal Topics

Areas of Law

Civil Procedure

Legal Concepts

Appeal

Stay of Proceedings