TARIQ & JACOBSON

[2015] FamCA 122

FAMILY COURT OF AUSTRALIA

TARIQ & JACOBSON [2015] FamCA 122

FAMILY LAW – CHILDREN – Procedural – Application for an adjournment – Where a two day trial was set down to commence on the date of the application – Where the father requesting an adjournment has consistently failed to comply with directions – Where costs are awarded to the mother and ICL who oppose the adjournment.

Family Law Act 1975 (Cth)

APPLICANT: Mr Tariq

RESPONDENT:	Ms Jacobson
INDEPENDENT CHILDREN’S LAWYER	Shila Batenburg

FILE NUMBER: BRC 10671 of 2012

DATE DELIVERED: 12 February 2015

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 12 February 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Jamieson

SOLICITOR FOR THE APPLICANT: NA Lawyers

COUNSEL FOR THE RESPONDENT: Ms McArdle

SOLICITOR FOR THE RESPONDENT:	Barry.Nilsson. Lawyers
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER	Ms Pendergast
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER	SBA Lawyers

Orders

IT IS ORDERED THAT:

1. The reserve trial of these proceedings listed for two (2) days commencing on 12 February 2015 be vacated.

1. The proceedings be relisted for trial for three (3) days commencing on 14 September 2015 at the Family Court of Australia, Brisbane Registry.

1. The Mother’s Application in a Case filed on 16 February 2014 be dismissed.

IT IS FURTHER ORDERED BY CONSENT THAT:

1. By 4.00 pm on 19 June 2015 the Father is to file and serve any further material he intends to reply upon at the trial of these proceedings.

1. By 4.00 pm on 3 July 2015 the Mother is to file and serve any further material she intends to rely upon at the trial of these proceedings.

1. In the event the Father fails to file any further material pursuant to Order 4 herein, the Mother is at liberty to seek that the matter be relisted prior to the trial of these proceedings, for the Court to consider making default orders.

1. The Father is to notify the Independent Children’s Lawyer and the Mother’s solicitor of the date that he departs from Australia; the date of his return; and his postal and residential address within seven (7) days of his departure from and return to Australia.

1. BY CONSENT UNTIL FURTHER ORDER Orders 4 and 5 of the Orders made by this Honourable Court on 14 October 2013 be suspended and that pending the final hearing of this matter on 14, 15 and 16 September 2015, there be no time or communication between the Father and the child, B born … 2008, whatsoever.

IT IS FURTHER ORDERED THAT:

1. Within ninety (90) days of today’s date the Father shall pay the Mother’s costs and the Independent Children’s Lawyer’s costs thrown away as a result of the adjournment of the trial as follows:

   a.   for the Mother, fixed in the sum of $8,598.00; and

   b.   for the Independent Children’s Lawyer, fixed in the sum of $6,263.00.

1. Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.

NOTATION:

A.Notwithstanding the order for costs made the Mother shall be at liberty to make further application that the Father pay her costs of preparing any further material or attending to any further acts required as a result of the trial dates commencing 12 February 2015 being vacated and new dates being set.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Tariq & Jacobson 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 10671 of 2012

Mr Tariq

Applicant

And

Ms Jacobson

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. These parenting proceedings concern a child, B, born in 2008 who is now six years of age. The parties to the proceedings are his father (“the father”), his mother (“the mother”) and an Independent Children’s Lawyer (“the ICL”) appointed pursuant to s 68L of the Family Law Act 1975 (Cth) (“the Act”) to independently represent the child’s interests in the proceedings.

2. Without detailing the history of the proceedings which were first commenced in the Federal Magistrates Court and later transferred to this Court, the proceedings have progressed through the usual case management systems of the Court, including the making of directions for the purpose of the matter progressing to a trial.  Those directions included a requirement for affidavits for the trial to be filed now some time ago, in September.

3. The matter was recently mentioned by me for the purpose of a pre-trial mention because today was the date upon which the matter was set down for trial, albeit as a reserve trial behind other matters.  At that mention Mr Jamieson of counsel appeared for the father, instructed by lawyers based in Sydney where the father presently resides. 

4. An Application in a Case has been filed in relation to the matter proceeding to be heard and determined on an undefended basis, given the father’s abject failure to comply with previous directions concerning the filing of material.  In the result, it would have been possible for the Court to hear and determine the matter today and tomorrow.  As it happens, an updated family report was received only this morning by the parties, or at least by the father, and by the Court. 

5. Fundamentally, the application in the parenting proceedings by each of the mother and, as I understand it, the ICL based on the contents of the expert family report would see final orders being made for the father to have no time or communication with the child. It goes without saying that such orders are, as it were, a last resort in terms of meeting children’s best interests against the fundamental objects of Part VII of the Act, expressed as being children’s rights to know and be cared for by both parents and to have the experience of both parents in their lives to the maximum extent consistent with their best interests.

6. As I have earlier mentioned, if this was simply inter partes litigation between the father and the mother, there would be no prospect, given the obvious recalcitrance by the father in filing material, of the matter being adjourned.  Amongst other things, litigation creates its own pressures for the parties to it, and the mother would legitimately say, in circumstances where she has complied with each and every direction made by the Court for the filing of material and to prepare the matter for trial, no such adjournment ought be granted.  However, in circumstances where this litigation concerns such a young child and the orders, potentially, in respect of the child would see him having no time or communication henceforth with his father, it seems to me that different considerations arise.

7. The father’s application for an adjournment is founded on the basis that he will consent to orders in the interim period between now and his suggested dates for trial some time in September where he would have no time or communication with the child.  The father by his counsel also acknowledges that in the circumstances it would be irresistible that an order for costs be made in favour of each of the mother and the ICL in respect of the costs thrown away by the adjournment, given that it is only caused by reason of the father’s

   
   

   non-compliance with previous orders and directions of the Court. 

8. The other matters that impact as it seems to me on the adjournment question, include the fact that the father plans to spend some months overseas with a view to remarrying his first wife and re-establishing her with him in Australia together with their child, a half-sibling of the child the subject of these proceedings.  It is also, as expressed today, at least, the father’s ambition to

   
   

   re-establish himself in Brisbane rather than Sydney after that period of some three months overseas.  In the circumstances it seems to me that other than costs and the, no doubt, emotional pressure upon the mother, she is not prejudiced by an adjournment if orders are made to give effect to the orders she seeks on a final basis in any event in the interim period.  Likewise, the ICL acknowledges that in circumstances where those orders are made on an interim basis as consented to by the father, the ICL cannot point to any specific prejudice in respect of the adjournment.

9. Is it suggested on behalf of the father that he proposes to address issues of anger management and the like between now and the resumed trial.  It has been observed by counsel for the mother, and there is significant force in this, that the father has now had a long opportunity to so address such issues but, apparently, has not done so to date.  Nevertheless, again, returning to the theme that it is the child’s best interests that lie at the heart of these proceedings, it is potentially in the best interests of the child that the father, albeit belatedly, address issues that have been raised in respect of their impact in terms of his conduct and attitudes and behaviours that impact upon the child’s best interests.  On balance, and it is a fine balance, I am persuaded that the correct outcome would be for the matter to be adjourned on the basis that interim orders are made by consent along the lines earlier referred to. 

10. I propose to make orders for costs in favour of the ICL and the mother of the costs thrown away by the adjournment and, indeed, the father by his counsel expresses no opposition to that occurring. 

11. The parties reached agreement save in respect of one matter as to the further orders and directions that ought be made mainly directed to this matter proceeding to a trial in September 2015.  That agreement extends to an agreement that the father meet the costs of the mother fixed in the sum of $8,598.00 and for the ICL fixed in the sum of $6,263.00. 

12. The area of non-agreement is the proposal by the mother and the ICL that the subject costs be paid within 28 days of today.  It is submitted in the first instance on behalf of the father that he should have until the trial in September 2015 to pay those costs.  The directions to which I have referred require the mother to file and serve any further material she intends to rely upon at the final hearing in September 2015 by 4.00 pm on 3 July 2015. 

13. It seems to me that justice and fairness to the mother dictates that she should not to have to embark upon incurring the further costs involved in preparing that further material without first being reimbursed for the costs to be ordered.  The financial circumstances of the father in terms of evidence before me are somewhat limited but I noted in the course of the argument that his evidence as per his affidavit of the 10 February 2015 is to the effect that he was receiving income of $1,500 gross per week as a subcontractor or the equivalent of $78,000 per annum.  It is also apparent that he instructs lawyers based in Sydney or New South Wales and he has the wherewithal to have his solicitor present in Court today together with counsel instructed. 

14. As I have already noted, the father, given the orders and directions that I have earlier made referred to about suspension of time will not incur the costs of contact or travel in relation to contact between now and September 2015 and there is no evidence before me of the father having to meet otherwise any substantial child support costs for the child the subject of these proceedings.  It was also outlined in the course of submissions that the father shortly plans to embark upon three months travel overseas.  He intends to remarry and relocate his former wife from Europe to Australia together with their child. 

15. In my judgment allowing the father 90 days is the proper balance as between his capacity as best it can be understood in the circumstances just described and the mother’s position in particular in terms of the further costs she is to incur pursuant to the relevant orders and directions.

16. On that basis I make orders in terms of the orders contained within the draft that has been provided to the Court with the amendment to the 3 days of trial earlier referred to and with the provision that the payment of costs of 28 days be altered to reflect 90 days.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 12 February 2015.

Associate: 

Date:  12 February 2015