THORPE & WEBSTER

[2015] FCCA 1766

FEDERAL CIRCUIT COURT OF AUSTRALIA

THORPE & WEBSTER [2015] FCCA 1766

Catchwords:
FAMILY LAW – Parenting – absence of material filed by the father –application by father to adjourn the trial – application to adjourn granted.

Legislation: 

Family Law Act 1975, ss.68LA, 69ZK
Evidence Act 1995
Children & Young Persons (Care and Protection) Act 1998 NSW, s.90
Legal Aid Commission Act1979 (NSW), s.57

Browne & Dunn (1893) 6 R 67
Jones & Dunkel (1959) 101 CLR 298
Allesch v Maunz [2000] HCA 40
Haset Sali v SPC Ltd [1993] HCA 47
Aon Risk Services & ANU [2009] HCA 27
AMS & AIF (1999) CLR 160

Applicant: MS THORPE

Respondent: MR WEBSTER

File Number: AYC 78 of 2009

Judgment of: Judge Harman

Hearing date: 18 May 2015

Date of Last Submission: 18 May 2015

Delivered at: Albury

Delivered on: 18 May 2015

REPRESENTATION

Counsel for the Applicant: Ms Southey

Solicitors for the Applicant: Pogson Cronin

Counsel for the Respondent: Mr Baume

Solicitors for the Respondent: Belbridge Hague

Solicitors for the Independent Children’s Lawyer: Ms Rowley of Rowley & Associates

ORDERS

1. Vacate the trial dates allocated to these proceedings 18-19 May 2015.

2. Adjourn the proceedings not ready to 5 August 2015 at 2pm.

3. The father shall no later than close of business 31 July 2015 file and serve all and any Affidavit material upon which he proposes to rely or at the very least the trial Affidavit deposed by him.

4. In the event that the father should fail to file material as directed above and subject to such further submissions as may be put by his Counsel, then in all probability on the next listing of these proceedings 5 August 2015 the matter will proceed to final and undefended hearing of the Applicant mother’s application and if proceeding in that fashion, with the probable consequence that Orders will be made as sought by the mother.

5. Excuse the family report writer from attendance in this circuit and pending further advice to her.

6. The father shall forthwith and before close of business today provide to the Independent Children’s Lawyer his current contact details (comprising at least of his residential address and telephone contact number) and details of his current treating general practitioner.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT ALBURY

AYC 78 of 2009

MS THORPE

Applicant

And

MR WEBSTER

Respondent

REASONS FOR JUDGMENT

1. These proceedings are listed today for trial. 

2. The proceedings concern the future care arrangements for a young child, X born (omitted) 2013, just short of his second birthday.

3. The parties to the proceedings are Ms Thorpe the Applicant and the mother of X and Mr Webster, X’s father and the Respondent.

4. The parties also have a child, Y, who is not the subject of these proceedings. Indeed, the Court is absent jurisdiction to entertain any Application regarding Y’s care arrangements absent consent by the Secretary of the Department of Family and Community Services, he being subject to a care Order on a final basis[1].

   [1] See section 69ZK of the Family Law Act 1975

5. The interests of young X are independently represented in these proceedings, although there has been a recent change of representative which is of some relevance to the Application for adjournment which is now to be dealt with.

6. Whilst the matter is listed for trial on a final basis, an Application for adjournment is made by the Respondent father. Accordingly, it is necessary to consider both that Application and its context within the history of proceedings.

History of Proceedings

1. The matter was commenced by an Application Initiating Proceedings filed on 13 August 2013. From a cursory examination of the folio of the Court file that would appear to be the third Application over a period from 17 February 2009 to the present.

2. The first two Applications had sought parenting Orders with respect to the older child, Y, whom, as indicated, is no longer the subject of these proceedings and cannot be absent consent of the Secretary of the Department of Family and Community Services.

3. The present Application has been the subject of a number of Court events.

4. The matter was before the Court on 4 March 2014. On that date a Family Report was commissioned and a number of additional Orders made which are not relevant for present purposes.

5. The Family Report was prepared and released to the parties in a timely fashion such that when the matter was next before the Court on 11 August 2014 these trial dates were fixed. Today is, accordingly, the third Court event in the matter notwithstanding that the proceedings have been on foot now for something a little over 18 months.

6. By reference to the present average delay to hearing of matters conducted on this circuit, that is relatively expeditious and thus, if the proceedings are to be adjourned, it will be a lost opportunity for these parties.

7. The matter has been dealt with as expeditiously as could be accommodated and with the allocation of such resources as the Court has or can make available including, the appointment of an Independent Children’s Lawyer together with the commissioning of a Family Report and all at the expense of the Court or the Legal Aid Commission of New South Wales rather than the parties. 

8. When the proceedings were commenced this child was only some two, not yet three, months of age. As indicated, the child will shortly – next week – turn two years old.

9. The father seeks adjournment of the proceedings. That would appear to be on a number of bases.

10. The adjournment is neither consented to nor opposed by each of the Applicant Mother and Independent Children’s Lawyer. Each sagely and appropriately raises the delay which will occur if the proceedings are adjourned.

11. If adjourned, this matter even with the earliest available dates allocated to it, could not realistically be heard before October 2015. That is, thankfully, much more expeditious than was the case only a few months ago. It arises purely as a consequence of matters having settled and being removed from the list.

The adjournment application

1. The father’s adjournment Application is agitated on the following bases:

   a)There has been a recent change in the Independent Children’s Lawyer and prior to that change some difficulties had arisen regarding conduct of the proceedings;

   b)The father has not yet filed material and desires “the opportunity” of doing so;

   c)The father has experienced a recent change of solicitors and, whether connected therewith or otherwise, has also experienced the termination of his Legal Aid funding.

2. I will address each of those issues in order.

The change in the Independent Children’s Lawyer

1. It is submitted in the father’s case that a delay has arisen as he has been awaiting the nomination by the Independent Children’s Lawyer – not the person presently filling that role – of a counsellor or counselling service to assist the father regarding certain issues that arise in the proceedings and which issues I will not canvass for present purposes. 

2. I do not accept that this would be a basis of adjournment. 

3. Whether such a recommendation has been forthcoming or not it is and has always been open to the father to make his own inquiries and pursue any endeavour that he wishes in relation to obtaining assistance for himself.

4. The Family Report included a recommendation that the father undertake certain counselling programs. The recommendation was directed to the perceived need for the father to seek assistance. The father was free to act upon that recommendation, for forensic or therapeutic purpose, without Court Order or direction by any person. If he has not done so then it is his failure no-one else’s.

5. Whilst the role of the Independent Children’s Lawyer has come to assume a significant role in assisting the Court with “case management” and including by facilitating and monitoring such referrals, especially when parties are self-represented, it is not a duty enumerated in section 68LA of the Family Law Act 1975. It has arisen as a matter of practice and through the generosity of those filling that office.

6. The Independent Children’s Lawyer does not represent the father and is not obliged, by legislation, Court Order, professional responsibility or general practice, to aid the parties in the fashion the father suggests.

7. I am satisfied that the Court has done all that it need do as regards family counselling services and the referral of the parties thereto. In the circumstances of the matter and based upon the evidence available nothing further in that regard would be required of either the Court or the Independent Children’s Lawyer.

8. It must also be observed that as regards any difficulties with respect to the discharge by the Independent Children’s Lawyer of their role that are suggested to have arisen previously (and I need not consider that issue) the present Independent Children’s Lawyer has stepped into the matter late in the piece, has done all that is necessary or asked of them and presents before the Court today appropriately and frankly able to advise that they are ready to proceed subject only to the receipt of evidence from each of parties.

9. That leads to the second issue of the father’s material. 

The “opportunity” for the father to file material

1. Trial directions were made on 11 August 2014 and which required that the Applicant file and serve material by 27 February 2015. The father, as the Respondent, was to file by 3 April 2015.

2. The Applicant’s material was filed some little time after that which was directed but not such a material delay as would prejudice the father in preparation of his case.

3. Whilst the directions for filing were sequential it would be imprudent of any litigant to await service of the other party’s case before commencing preparation of their material. The material to be filed in sworn evidence, an Affidavit, not a responding document or pleading.  It should address matters raised by the Applicant but as a narrative not as a responding document.

4. It is desirable and the purpose of the direction that the Respondent has the Applicant’s material before completing their Affidavit, but work could and should certainly have commenced on that material well and truly before the mother’s material was filed. 

5. As I have indicated, whilst the mother’s material was filed later than the date fixed it is far from either:

   a)A significant delay; or

   b)Such a delay as would render it impossible for the father to have filed material prior to this trial, he having had close to two months since service of the mother’s material to do so. 

6. What I am concerned within the context of this young child’s life is the ability to not only afford due process to both parties but to properly, fully and appropriately ascertain the child’s best interests. That impacts upon both the Court’s determination of the controversy and the discharge by the Independent Children’s Lawyer of their role. I make clear that is not, in any way, pejorative of the Independent Children’s Lawyer. It is a reflection of the reality that the Independent Children’s Lawyer is required to form an independent view, based upon available evidence, as to that which would be in the child’s best interests. At this point in time there is precious little evidence.

7. Prior to the present Independent Children’s Lawyer’s appointment, two subpoenas had been issued and those by the mother. Nothing else would appear to have been done as regards preparation or the gathering of relevant evidence by those previously seized of the office. That is not to raise criticism for the sake of it. There would be little, if any, purpose in doing so. That reality does, however, impact upon the readiness of the matter,

8. Subpoenas have been issued by the mother’s attorneys addressed to the New South Wales Police Service and the Department of Family and Community Services. That material was produced over a year ago and, one would hope, that it has been inspected by all. On a limited consideration of that which is filed in the proceedings, essentially confined to the mother’s material and the Family Report, there are clearly a number of lines of inquiry which might and should be pursued through the issue of subpoena such as subpoena to various medical practitioners, the Department of Housing and the like.

9. That material not being before the Court potentially creates some difficulty, especially when the father has filed no material. The Family Report writer has referred to a number of allegations made by the parties regarding certain events of importance. Evidence clearly exists in the hands of third party agencies which might corroborate the version of events given by one party or the other.

10. Whilst these are parenting proceedings and certain portions of the Evidence Act 1995 need not be applied, unless the Court considers it appropriate to do so having regard to the exceptional circumstances of the case, they are proceedings in which various common law rules of evidence such as the rules in Browne & Dunn (1893) 6 R 67 and Jones & Dunkel (1959) 101 CLR 298 apply. Accordingly, that material whether subpoenaed by the Independent Children’s Lawyer, the parties or otherwise, would be fundamentally important.

11. The major issue in addressing the Application for adjournment is the absence of material filed by the father. The Court is left at this point to deal with the matter based on the mother’s evidence only. That is not to cast any doubt upon the truthfulness of her material. It is purely to acknowledge that the evidence filed is one side of the story only.

12. The father, if he were to file material, may well wish to cavil with the wife’s evidence to raise additional issues which would require address in the proceedings.

13. It is possible for the matter to proceed today on the basis of leave being granted to the father to give oral evidence notwithstanding. This is so notwithstanding that directions had been made for the filing of Affidavit material by him and which he has failed to comply with. That is the least of my concerns and I will address that as regards the change of the father’s attorneys and termination of their retainer.

14. To allow the father to conduct his case on the basis of oral evidence would potentially cause significant disadvantage to the Applicant. She would be required to present her case and to be cross-examined by Counsel for the Respondent without any knowledge whatsoever of the Respondent’s case. I am conscious that many trials are conducted on the basis of oral evidence.

15. I am conscious of the remarks of esteemed Senior Counsel such as Jeremy Gormly SC mourning the “loss of the art of oratory”. I respectfully concur with those views. However, in this case, the father has advanced nothing of his case save through that reported by the Family Report writer (assuming it is accepted by the father as accurate reportage), and the mother would be taken by surprise or “ambushed”. I am not prepared to allow that.  Both parties have a right, prior to the trial commencing, to know the case they are to answer.

16. To allow the father, as the Respondent, to now conduct his case on the basis of oral evidence would also potentially create significant ethical issues for Counsel for the Respondent. Counsel would be required to engage in cross-examination on the basis of instructions hastily obtained this morning and given in the space of an hour or so at most and to then face the difficulties which would no doubt be the subject (and appropriately so) of significant criticism if, in then leading evidence from the Respondent, evidence was either adduced which had not been put to the mother or which then arose during his cross-examination and his responses to questions. The myriad of ethical and evidential difficulties which could then arise is concerning. It is on that basis that directions are made in this jurisdiction for material to be filed.

17. The father having failed to file material also creates a difficulty for the Court in ascertaining the child’s best interests fairly and appropriately and by reference to a full body of evidence appropriately tested. As the late Barry Brown had opined:

    A fair trial is one in which the rules of evidence are honored, the accused has competent counsel, and the judge enforces the proper courtroom procedures - a trial in which every assumption can be challenged.

18. That cannot be achieved in this case. That is not to suggest that a party appearing in these circumstances cannot and should not, in some instances, be forced on to hearing or be required to demonstrate why their Application or Response should not be dismissed for want of prosecution. Neither course is urged upon me nor do I not propose to consider either.

19. I am conscious, by reference to the High Court’s dicta in Allesch v Maunz [2000] HCA 40, that what is required to afford due process to a party is to afford to them the opportunity to be heard and present their case, not an opportunity to be heard at a time or by a means of their choosing. There has been an abundant opportunity, over nine months, for the parties’ to prepare their case and present them to the Court. The mother has done so. The Independent Children’s Lawyer, having come into the matter recently, has brought themselves up to speed expeditiously and diligently so that they are ready to proceed. The father has not.

20. In those circumstances there is some support for the Application for adjournment. However, without a consideration of the circumstances of the case those matters would not of itself warrant an adjournment. I am satisfied, however, that the circumstances of the case, on balance, favour of adjournment.

21. It would appear from the mother’s evidence, taking it on its highest, being unchallenged as it is and accepting it as more probably true than not, that the parties separated at about the point of conception of this young child, having separated in mid to late August 2012 and the child being born in late (omitted) 2013. Assuming that the child was born after a nine month gestation the parties would appear to have separated moments after the child’s conception. That being so, this child has never in reality spent any meaningful time with the father, at least upon the mother’s evidence. 

22. Orders were made by consent on 11 August 2014 which provided for the father to commence time through the (omitted) Children's Contact Service. That was, however, subject to the father being required, prior to the commencement of that time, to provide a clear urinalysis report following request by the Independent Children’s Lawyer for that to occur.

23. It would appear that in the intervening period between the listing of the matter in August, 2014 to the present that only one request has been made of the father and that the testing report that was provided was not clear, albeit that it demonstrated the presence of marijuana or THC rather than drugs of more significance. That is not to dismiss the illegality or the potential long-term physiological and psychological health impacts of use of marijuana but simply to acknowledge that in the context of litigation in this Registry, where methamphetamine and similar drugs of addiction are a matter of serious concern, that THC is not the worst thing that might be detected. The use of a drug such as marijuana, conceded by the father to be the subject of his long-term use, would not necessarily and by and of itself obviate against the father commencing time through the Contact Service. However, the Orders are as they are and I do not propose to go behind them or amend them nor am I asked to do so.

24. The reality remains that as a consequence of both the father’s failure to provide a “clean” urine screen and the former Independent Children’s Lawyer failing to make any additional requests for testing, the father’s time with this child has not commenced. The father could always have taken himself off for testing of his own volition.

1. It would also seem that as a consequence of that, address of those requirements or pre conditions that the father’s time at the Contact Centre has not only not commenced, but the parties have now lost their opportunity. They will need to re-apply and re-commence the intake process and thus there will be a delay of some further few months before that time can occur subject to the condition precedent to its commencement being met by the father.

2. The other aspect of the matter is that clearly there is a history of significant involvement by the Department of Family and Community Services at least with the older sibling, Y. Y is the subject, as indicated, of an Order to be in the care of the Secretary of the Department being an Order made on a final basis. There is no present proposal that there would be any variation of that Order by way of section 90 application[2] or otherwise. Time is occurring between that child and his mother and sibling approximately eight times per year on an unsupervised but limited basis.

   [2] Children & Young Persons (Care and Protection) Act 1998 NSW, s.90

3. There is clearly a significant history of involvement by these parties, collectively or singularly, with the Police. There are clearly concerns, as already indicated, with respect to the parties’ engagement with other services none of which the father has placed before the Court albeit that there has been an opportunity but perhaps impeded through other circumstances to which I turn.

4. Having regard to the above I am satisfied that failure to adjourn the proceedings would potentially be an injustice to the father, as is submitted on his behalf, tantamount to the denial of due process and, more importantly perhaps, suggestive that the child’s best interests could not be properly ascertained or treated as paramount.

The father’s change of attorneys

1. There is nothing to suggest the basis for the termination of the father’s retainer of his former attorneys or whether he instigated the termination of that retainer or whether it was instigated by his attorneys. Ultimately, I need not be particularly concerned with that issue. That is a matter between the father and his former attorneys.

2. A Notice of Withdrawal of Lawyer was filed on 26 November 2014, which provided an address and contact details for the father. Those details are clearly no longer current even if they were at the time.

3. Since that time, it would seem, whether as a consequence of the termination of that retainer or otherwise, the father’s legal aid funding has been also terminated. 

4. The father has instructed fresh attorneys, although they have only recently come on to the record. That is not a criticism of the attorneys. They no doubt have come on to the record as quickly as was possible, indeed, as something of an assistance to the Court and the father it would seem as his Legal Aid funding is still not resolved and thus they are providing assistance at this point on a pro bono basis.

5. The change of attorneys and whatever has transpired in that intervening period is another factor which I am satisfied tips the balance in favour of adjournment. The father seeks adjournment and noting that he is facing a “no contact” case on the part of the mother, I am satisfied that it is desirable that he be represented if at all possible.

6. The father will have a further opportunity to prepare his case and to pursue the Appeal presently pending before the Legal Aid Review Committee.

7. It is submitted, not inappropriately, that section 57 of the Legal Aid Commission Act1979 (NSW) would entitle the father to an adjournment of the proceedings in light of the fact that he has lodged an Appeal and is prosecuting it and it is not suggested that the Appeal is made other than bona fide and appropriately and diligently prosecuted. Indeed section 57 of that Act is in somewhat mandatory terms:

   Where it appears to a court or tribunal, on any information before it:

   (a) that a party to any proceedings before the court or tribunal:

   (i) has appealed, in accordance with section 56, to a Legal Aid Review Committee and that the appeal has not been determined, or

   (ii) intends to appeal, in accordance with section 56, to a Legal Aid Review Committee and that such an appeal is competent,

   (b) that the appeal or intention to appeal is bona fide and not frivolous or vexatious or otherwise intended to improperly hinder or improperly delay the conduct of the proceedings, and

   (c) that there are no special circumstances that prevent it from doing so,

   the court or tribunal shall [emphasis added] adjourn the proceedings to such date on such terms and conditions as it thinks fit

8. However, section 57 of that Act does not bind this Court, a Federal Court. I am satisfied, however, that in this circumstance, although not to suggest at all that the Court is mandated to do so, that the provision could be considered to have some relevance albeit non-binding. That would, again, be suggestive and supportive of adjournment.

Delay

1. I am conscious of the delay that will flow from adjournment. Delay will be inevitable even if all that can reasonably be done to expedite the conclusion of the matter is now done.

2. Expedition will, to some extent, be in the hands of the father who will be required, as it were, to “put up or shut up” prior to the next Court event. He will need to file his material during the adjourned period.

3. I propose to adjourn the matter to a duty list some months hence to allow the opportunity for the Legal Aid Appeal to be concluded and, if so, for the father to then instruct his attorneys to prepare his material. If the Legal Aid Appeal is not concluded the father will, invidious as it may be, need to prepare his own material and file it at least if he wishes to avoid further delay as I will not again list the matter until it is ready to proceed. 

4. The mother is entitled also to due process and to her day in Court.  She is prepared and ready to run today. Both parties are or have been legally aided as is the Independent Children’s Lawyer.

5. There is a significant cost to the community, as well as the parties and this child, of further adjournment. However, I am satisfied that the interests of due process outweigh such costs at least in this case.

6. I am conscious that the prejudice that will be suffered, viewed simplistically, is predominantly suffered by the father. He is not presently seeing this child, save for if he were to expeditiously complete the requirements of urinalysis testing and provision of a “clean” report. Then he would be able to expeditiously commence time through a Contact Centre (expeditious at least in comparison to metropolitan areas where delays are chronically long and running up to nine months, if not longer).

7. The ready availability of the (omitted) Contact Centre is a great benefit to these parties subject to the further difficulty that time has not commenced and the parties will now need to re-apply. 

8. The Family Report had anticipated that time would have commenced at the Contact Centre prior to hearing. The delay and absence of time spent which has now arisen is not addressed in any of the evidence nor considered by the Family Report writer. I do not criticise the Report writer. They cannot predict the future and can only consider that which the parties advise to them.

9. To compound difficulties, since the Report’s completion and release the father has relocated from the (omitted) area to (omitted), a distance which, for these parties of very limited means, is going to create vast and significant practical difficulties for them.  For any time to occur the father will need to travel from (omitted) to (omitted), a trip by road of something approaching nine hours. The trip by air, even if it could be afforded involves two flights – (omitted) to Sydney then Sydney to (omitted). If travelling by public transport, one can only ponder how long that might take by rail, bus or a combination thereof. That is a significant factor which must also be considered in any determination of this child’s best interests and which is presently absent any of the evidence before the Court.  It needs to be considered and addressed.

10. The cost of delay is not, however, only to the community. It is also to the parties and, importantly, to this child and to the Court and its users.  As the High Court has discussed in authorities such as Haset Sali v SPC Ltd [1993] HCA 47, Aon Risk Services and ANU [2009] HCA 27, the Court has an obligation to manage its own resources and to ensure that it does so effectively for the benefit of all litigants, not only those before it in each individual case.

11. The adjournment of these proceedings is a lost opportunity for the matter to proceed. At the commencement of the list today it was unlikely that this matter would be reached at all, there having been a previously not reached matter with priority that would have had the run. However, that matter has resolved and it would appear that the other matters which would have had priority over this case, four in total, have also resolved. Accordingly, these parties must appreciate the magnitude of that which is now lost to them as well as lost to other litigants. If the Court had been aware that this matter was not proceeding other work might have been listed. If other work had not been listed and these parties were ready they would have completed their business in these sittings.

12. The cost is also to the parties and beyond financial cost. As Kirby J discussed in AMS & AIF (1999) CLR 160 the cost of litigation extends well and truly beyond a mathematised dollar value. There is the further delay of these proceedings. These parties have, whether in relation to X or his older sibling Y, now had over six years of litigation, not only before this Court but a State Children’s Court. They must, by now, be tiring of litigation and the need to address matters through such means.

13. It is a cost also to this young child. If, ultimately, the Court were to assess that there is benefit to time between the child and the father and that the relationship can safely progress then that relationship’s commencement will be further delayed. Irrespective of any findings that are made by the Court, this child’s life, thankfully very young and in all probability not cognisant of that which is occurring with the proceedings, will be further put on hold as will the mother’s life, she having already been engaged in vast and significant litigation. 

14. Those difficulties apprehended, however, and whilst it is a huge impost upon the Court, the public purse and these parties and their child, I am conscious that the father has to some extent been impeded through the withdrawal of his attorneys. It may well be that he might have acted more promptly following their withdrawal last November, some six months ago. 

15. However, whatever has occurred must be viewed in the context of the child’s best interests, and I am satisfied those interests warrant the adjournment of the proceedings. It will be, however, on the terms and conditions discussed being that I will not interfere with the interim Orders in relation to the father’s time commencing at the Contact Centre. The father will need, whether requested by the Independent Children’s Lawyer or independently, to complete urinalysis and provide the “clean” testing report that is required as the precondition for that to commence.

16. He will also be required to put his material on before the matter returns before the Court in the August duty circuit at which time, if the matter is ready to proceed, hearing dates will be allocated in all probability this year and if not early in 2016. If the father has not filed his material he will need to demonstrate – and whilst the Court will hear further submissions from his Counsel, should they wish to do so - why the matter should not then proceed on a final and undefended basis and the mother permitted to prosecute her Application to finality.

I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of Judge Harman

Associate: 

Date:  25 June 2015