Trott & Bligh
[2023] FedCFamC1F 41
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Trott & Bligh [2023] FedCFamC1F 41
File number: BRC 2766 of 2015 Judgment of: BRASCH J Date of judgment: 6 February 2023 Catchwords: FAMILY LAW – PARENTING - PRACTICE & PROCEDURE – Where Application in a Proceeding was filed on the eve of trial for it to be adjourned – Where the parties have been on notice of the trial dates for five months - Where the father made an oral application to adjourn the trial three weeks ago – Where that application dismissed -– Where the father’s new s 102NA legal representatives need time to prepare and wish to file a new Affidavit of Evidence in Chief – Where the parties have been involved in litigation for eight years – Where the child has not seen the father since 2015 – Where the father says the child is at risk in the mother’s care- Where finality is needed – Application dismissed Legislation: Family Law Act 1975 (Cth) ss 60CA, 64B, 102NA Cases cited: Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Cheung& The Queen (1991) ALJR 1093; [2001] HCA 67
Emmett & Emmett (1982) FLC 91-212;
Queensland & JH Holdings (1997) 189 CLR 146; [1997] HCA 1
Re K (1994) 17 Fam LR 537
Trewitt & Brock [2021] FedCFamC1A 9
Division: Division 1 First Instance Number of paragraphs: 52 Date of hearing: 6 February 2023 Place: Brisbane Counsel for the Applicant: Mr Collins Solicitor for the Applicant: Norris Law Counsel for the Respondent: Mr Ashcroft Solicitor for the Respondent: Evans Brandon Family Lawyers Counsel for the Independent Children's Lawyer: Ms Lyons Solicitor for the Independent Children's Lawyer: Legal Aid Queensland ORDERS
BRC 2766 of 2015 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR BLIGH
Applicant
AND: MS TROTT
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
BRASCH J
DATE OF ORDER:
6 FEBRUARY 2023
THE COURT ORDERS THAT:
1.The father’s Application in a Proceeding filed 3 February 2023 is dismissed.
2.The trial will resume at 10.00 am on 8 February 2023.
3.A trial plan is to be provided to the Court by 10.00 am on 8 February 2023 so that the evidence will conclude no later than 4:00 pm on 10 February 2023.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Trott & Bligh has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
BRASCH J:
On 17 January 2023, I dismissed the father’s oral application to adjourn the trial that is due to start today. On that day, Counsel for the father submitted I ought wait until the father’s appeal in a criminal court is determined. Today, the father brings a second application to adjourn the trial. The application was filed by the respondent father on the business day prior to trial, that is Friday.
Material
The father’s material was:
·Application in a Proceeding filed 3 February 2023;
·Affidavit of Jacinta Norris [solicitor] filed 3 February 2023; and
·A 67 page Outline, albeit attaching some case law.
I note his solicitors were able to prepare that.
The material before me for the mother was:
·A Response to Application in a Proceeding filed 3 February 2023;
·Affidavit of Ms Trott [mother] filed 3 February 2023; and
·Written Submissions filed 6 February 2023.
The Independent Children’s Lawyer (“the ICL”) relied upon:
·A Case Outline filed 6 January 2023.
These are my ex tempore reasons. I will correct the transcript for grammatical errors and to make these oral reasons more amenable to reading.
Background
The matter has a prolonged and intricate history of litigation in this Court, as well as other courts. I do not need, on the adjournment application that is before me now, to give a detailed history of the litigation for the purpose of this application, I will however give a brief overview.
These are parenting proceedings in relation to the child X, born 2011 (“X” or “the child”). The proceedings were initiated by the applicant mother (applicant in the substantive proceedings) on 31 March 2015. The respondent father joined issue with the proceedings on 8 April 2015.
In late 2020, the father was found guilty multiple offences. The father has since appealed those findings. That appeal was heard in late 2022 and judgment was reserved. My best understanding right now is the judgment remains reserved. However, as I said in September 2022 and on 17 January 2023, these parenting proceedings are not a re-run of the criminal trial; my considerations are X’s best interests.
In mid-2021, the father was deported. As is his right, he appealed that decision. He was unsuccessful, it would seem, on all appeals including to the Full Court of the Federal Court of Australia.
On 24 August 2022, Baumann J listed the matter for final hearing before me for six days commencing at 10.00 am today (6 February 2023). In the same order, Baumann J made an order pursuant to s 102NA of the Family Law Act 1975 (Cth) (“the Act”) preventing either party from cross-examining each other. The matter was then listed for case management before me on 8 September 2022.
On 8 September 2022, the case management hearing was conducted by web conference. The mother’s legal representative, the ICL and the father were all online. At that hearing the father was asked how his application for Legal Aid - or more properly for a s 102NA lawyer - was progressing pursuant to the 24 August 2022 order of Baumann J. The father advised the Court he had not yet completed the application; a notation was made to the effect:
THE COURT NOTES THAT:
A. The father will advance his s 102NA representation with Legal Aid as expeditiously as possible.
It was common knowledge [at that case management hearing] between the parties that the final hearing was to start today, 6 February 2023. The father advised the Court it would be unlikely he would be able to attend the trial in person, pending the outcome of his appeal; see Notation F of the order made 8 September 2022. The mother and her legal representative sought leave also to appear by Microsoft Teams and an order was made in the following terms:
The final hearing of the matter will be conducted by Microsoft Teams and leave is granted for the mother and her legal representatives, as well as the father and his legal representatives, to appear remotely.
(Order 5 of the order made 8 September 2022)
The ICL was given liberty to elect to attend the hearing in person or by Microsoft Teams. For today’s purposes I note the ICL and Ms Lyons of Counsel are before me. All other legal representatives and parties are online.
During the course of the case management hearing I discussed with the father, the legal representative for the mother and the ICL what matters were outstanding prior to the matter progressing to a final hearing. A number of filing directions were made including the filing of a consolidated affidavit by the mother and father, along with any witnesses, a Case Outline and leave for the mother and father to file one updating affidavit in relation to the outcome of the father’s appeal, obviously if that occurred.
The father was resolute in advising me that he had already filed an affidavit on 14 July 2022 and he was, essentially, happy with it. It is 727 pages in length. It will be a matter for the father’s solicitor or, more so, Mr Collins of Counsel if he reads all of those paragraphs or only parts of it. In circumstances where the father was very clear he did not wish to file a further affidavit I made a notation to the following effect:
G.It may be that the father will not file a further affidavit, having filed a consolidated affidavit on 14 July 2022.
(Notation G of the order made 8 September 2022)
I adjourned Order 10.1 as sought in the mother’s Reply filed 22 July 2022, plus further consideration of the mode of the trial to 17 January 2023 at 2.15 pm.
On 17 January 2023, the matter came before me by Microsoft Teams with the mother’s legal representative, the ICL and the father’s Counsel and solicitor (appointed pursuant to s 102NA) online. The father was also present on the call. There was no suggestion at that hearing that the matter was:
(a)Not ready for trial; or
(b)The father required a new affidavit.
I raised with the father’s then Counsel, Mr S, if he was retained for the final hearing and he responded “I am or I should say we are” (referring to his instructor). The parties advised me that the father’s appeal of the District Court of Queensland decision had been heard in late 2022 and judgment was reserved.
Subsequently, the principal of the firm representing the father died. Tragic as that is, it seems looking at the emails attached to the mother’s affidavit that the conduct of the matter was being undertaken by an employed solicitor in that firm.
The purpose of the [January] hearing was to determine the mode of the trial and whether the transcript of the proceedings and Reasons for Judgment in the father’s District Court of Queensland proceedings should be admitted into evidence as the mother sought in her Reply filed 22 July 2022. Yet, Counsel for the father made an oral application on instructions, without notice to the other parties, to adjourn the final hearing. Counsel submitted the application was made in circumstances where the appeal decision had not been handed down and was unlikely to be by the date of the final hearing. But no application and no submission was made that:
(a)The matter was not ready to proceed; or
(b)That a new affidavit was required.
In circumstances where: the other parties were not on notice of the application to adjourn; that they opposed the application; and, would seek costs if granted (with estimates as to quantum given), I asked Counsel for the father if he would like a brief indulgence to seek some instructions on whether the application to adjourn would be pressed. The Court stood down to allow Counsel, his instructing solicitor and the father to have a conference utilising the Court’s videoconferencing link - with the other parties and indeed me exiting the meeting - so Counsel could take instructions on pursuing the oral application.
Upon the Court resuming, Counsel advised that he had been instructed to press the oral application to adjourn the final hearing. The oral application was opposed by the ICL and the mother’s legal representative. After considering the parties positions I dismissed the oral application and gave brief reasons for doing so.
The solicitors who are now acting for the father received a grant of Legal Aid on 30 January 2023.
On 31 January 2023, a Notice of Address for Service was filed on the Court Portal for the father’s new solicitor; and if it is not clear already, the solicitor instructing Mr Collins is different from he who appeared on 17 January 2023.
On 1 February 2023, the ICL emailed chambers, copied to the other parties (including the father’s new solicitor) seeking photocopy access to documents produced on subpoena to prepare a tender bundle.
On 3 February 2023, being Friday just gone, the father’s solicitor filed the Application in a Proceeding, affidavit and cover letter for urgency.
The Application in a Proceeding sought the following orders:
1. That this Application be considered for an urgent listing.
2. That the time for service of this application be abridged.
3. That the trial in these proceedings listed to commence on 6 February 2023 be vacated.
4. That this matter be listed for trial of no more than 5 days on a date to be fixed.
The reasons for such an application were outlined in the affidavit of the father’s solicitor filed in support of the Application in a Proceeding. In summary they were:
(a)The father’s new solicitor had only received funding from Legal Aid on 30 January 2023;
(b)The father’s solicitor only had access to the file on 1 February 2023;
(c)The ICL bundle is voluminous;
(d)The appeal court book is voluminous;
(e)The father residing in the United Kingdom was causing difficulties in preparing material due to time zones and inability to meet in person; and
(f)The father’s solicitor is of the opinion the father should file a new affidavit of evidence in chief.
In the Outline that the father relied upon, the 67 page document his solicitors were able to prepare, it also indicated that the Portal had been out for 24 hours. I do however note that in the affidavit of the respondent, the mother, that both the ICL and Mr Evans worked collegiately in offering to provide material to the solicitor.
Upon Chambers receiving the Application in a Proceeding, the parties were notified it would be considered on the morning of trial, that is now.
Legal Principles
Of course, the Court has power to adjourn proceedings where it is necessary to do justice between the parties. Those authorities go back a long way, including Emmett & Emmett [1982] FLC 91-212. But equally, just as I have power to adjourn proceedings, I have the same power not to adjourn proceedings. In that regard, I particularly refer to the High Court decision in Queensland & JH Holdings (1997) 189 CLR 146 and Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175.
It is also the case that the Court has a wide discretion when one party moves the Court to adjourn a hearing. I should take into account:
·the reasons for the adjournment;
·any period of delay in making the application;
·any prejudice or disadvantage to the other party which cannot be compensated by way of costs, including, if necessary, security costs; but
·the fundamental consideration is to do justice between the parties.
As these are parenting proceedings, I also take into account the decision in Re K (1994) 17 Fam LR 537 (“Re K”) - indeed Mr Blayney for the ICL had also referred to that when the adjournment application was brought in January. In that case, it was said by the Full Court at 544 that any prejudice to the parties is secondary to the best interests of the child.
I highlight these proceedings started in March 2015. X would have been three or four years of age then. He is now 11. It seems, at least according to what the ICL told me, he last saw his father in July 2015.
I also refer to and take into account the decision of Cheung& The Queen (1991) ALJR 1093 per Kirby J at 1094 to 1095:
The Court has both express and implied power to grant an adjournment where it is necessary to do justice between the parties. Where a refusal would seriously prejudice a party, the adjournment should ordinarily be granted. At least, it ought be granted if the opposing party can be adequately protected by orders as to costs, orders providing for a new hearing on dates suitable to it and to other orders of a procedural character which take into account any prejudice which might be suffered by it.
That said, the courts have attached increasing importance to case management issues such as the impact of the adjournment on Court resources, lists and time, and, the rights of other litigants to have Court time. But case management is of course not an end in itself. I refer to Queensland & JL Holdings in that regard and the quotes there at 154, 167 to 172, again, with respect to what was said by Kirby J.
The cases I have referred to highlight I must do justice to both parties, but I also must consider X’s best interests. True, an application to adjourn is not a parenting order within the meaning of s 64B of the Act (Trewitt & Brock [2021] FedCFamC1A 9). But the flip side of that is what I am being asked to adjourn is the trial where the parties’ competing parenting orders fairly and squarely fall within parenting orders where the child’s best interests are paramount (s 60CA of the Act).
The reasons to adjourn include that the criminal court appeal book is voluminous. But it is the father’s own appeal book with which he would have familiarity; if the size of it was to cause prejudice to anyone, it would be the mother or the ICL. But they do not complain. Another reason for the adjournment was for filing a trial affidavit. However, when the matter was before me in September the father was clear that his July affidavit was his trial affidavit. I accept he was unrepresented then. However, when represented by solicitors and counsel in January 2023, as I have said, no mention was made of the need for a new trial affidavit. Counsel indicated he was briefed for trial. I am told something different now, but have no reason to doubt the officer of the Court and what he said before me in January.
Due to the death of the father’s previous solicitor [the principal of the firm], the father’s s 102NA grant was made to his current solicitors on 30 January 2023. They say they need more time and the time zone is problematic. The time zone between them in Australian and the father in the United Kingdom is the time zone. An adjournment will not cure that fact. As for having more time, that is a luxury many litigants may wish for but one that does not fit within modern case management and Court resourcing. However, I will give Mr Collins a little bit more time; I do so on two bases:
(1)I accept the Court Portal was down. It may not have been down for 24 hours but it was certainly down for some time; and
(2)Mr Collins, an experienced Counsel, indicated to me that he could be ready in two days. I will give him a little bit of time that he seeks.
I will ask the ICL to lead the way in drafting a trial plan so the evidence, at least, in the trial will conclude by Friday. I invite the ICL to confer with the mother’s and father’s legal representatives to work on that document. I will keep the parties to the time estimates that are given, as the Act and the Rules allows me to do. The ICL’s tender bundle may well be voluminous, but I indicate to the parties, as I have already, I will not be receiving that document, as is, into evidence. I will receive documents from that bundle that are tendered in the usual way. It may be that the two days Mr Collins is given to prepare may give Ms Lyons and Mr Blayney the opportunity to refine that document.
I accept the father’s lawyer has not delayed in bringing the application to adjourn. But that does not determine the matter. I have already noted that she was able to file this Application in a Proceeding, an affidavit and a Case Outline. It seems the submissions were essentially, with respect to the affidavit, that she would like it presented in a different way. I do not find that terribly persuasive.
As for prejudice to the other parties, the parties here have been litigating over X since 2015. Public funding has been supporting an ICL since appointed in April 2015. The matter has to come to an end. As I said on 17 January, and say again now, I am not satisfied that an order for costs thrown away will adequately compensate the mother or the ICL who are here now and ready to proceed. Nevertheless, no costs are offered, nor is any form of security on offer given the father does not live within the Commonwealth. But financial costs are not the only costs to which I turn my mind; litigation exacts an emotional price which cannot be compensated by money.
The mother submits that the adjournment application is really an opportunity to change the father’s case, but the primary thrust of her submissions, along with the ICL, was to focus on X. On the mother’s behalf, I was taken to what was said about trauma and grief in Mr G’s untested report and thus, continuing the trauma and grief for the mother has flow on impacts for X.
I also accept the ICL’s submissions referring to Re K that any prejudice to the parties is secondary to the child’s best interests.
The father told me in September, albeit when self-acting, that he had filed his trial affidavit. His barrister who appeared before me in January 2023, not even three weeks ago, made no mention, as I have said, of filing a new affidavit. He also told me he was ready for trial.
Further, Court resources are precious. Days in Court, let alone five days as is listed before me, are precious and are rare. I would not be able to fill the balance of this week at short notice. Thus, other families are being denied access to justice.
I would not be able to give this matter another five days until next year, 2024. That means X would go another year with his parents fighting about him. X needs finality, whatever that might be, by the time this trial concludes.
The father maintains in his material that X is at risk in his mother’s care, yet he again wants to adjourn my consideration of that critical issue and practically that would be another 12 months. It was suggested interim orders could be made, but I do not have any such application for interim orders before me.
For those reasons, the application to adjourn is dismissed. I will make orders to do so, however, I accept the ICL’s suggestion that Mr Collins have time to prepare and thus the trial will resume at 10.00 am on Wednesday 8 February 2023.
I will make an order for a trial plan to be provided to the court by 10.00 am on Wednesday 8 February 2023 such that the evidence will be concluded by Friday 10 February 2023. The parties are on notice that the time estimates in that document will be enforced.
Mr Collins for the father may wish to, on Wednesday morning, seek leave to adduce further relevant evidence from his client, but if he does so, I require that he would have opened the tenor of such evidence to the mother and the ICL before Court begins.
I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Brasch. Associate:
Dated: 6 February 2023
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