Tulach & Grunswell

[2020] FamCA 1133

FAMILY COURT OF AUSTRALIA

Tulach & Grunswell [2020] FamCA 1133

File number(s):	NCC 875 of 2018
Judgment of:	CLEARY J
Date of judgment:	14 December 2020
Catchwords:	FAMILY LAW – adjournment – Where the second respondent maternal grandmother on the first day of trial sought an adjournment – Where the adjournment was opposed by the applicant mother and the first respondent father – Where if the matter were to proceed the maternal grandmother would be self-represented due to her grant of legal aid having been cancelled late and then successfully reinstated only days prior to the commencement of trial - where there are complex matters involving two subject children with very separate and different considerations who are living apart from each other – Where the maternal grandmother would be at a disadvantage and may distort the outcome – Intention to adjourn the proceedings but in the event that representation became available today and could commence tomorrow the matter stood in the list pending inquiries.
Legislation:	Family Law Act 1975 (Cth)
Number of paragraphs:	15
Date of hearing:	14 December 2020
Place:	Newcastle
Counsel for the Applicant:	Not Applicable
Solicitor for the Applicant:	PME Robinson & Co.
Counsel for the First Respondent:	Ms Carty
Solicitor for the First Respondent:	Stevens Family Law & Mediation
Counsel for the Second Respondent:	Not Applicable
Solicitor for the Second Respondent:	Self-Represented
Counsel for the Third Respondent:	Not Applicable
Solicitor for the Third Respondent:	No appearance on behalf of or by the Third Respondent
Solicitor Advocate for the Independent Children's Lawyer:	Ms Karagiannis
Solicitor for the Independent Children's Lawyer:	Legal Aid NSW

ORDERS

NCC875 of 2018

BETWEEN:

MS TULACH

Applicant

AND:

MR GRUNSWELL

First Respondent

MS B TULACH

Second Respondent

MR COOKSON

Third Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	CLEARY J
DATE OF ORDER:	14 DECEMBER 2020

THE COURT ORDERS THAT:

1.No orders made – stood in the list until 4.00 pm.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Tulach & Grunswell has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

ORAL REASONS FOR JUDGMENT

CLEARY J

1. This is an application for adjournment of trial dates.  The application is made by the maternal grandmother, Ms B Tulach.  She is the second respondent to the proceedings.  One of the two subject children, X, aged seven, lives with her.  The application is opposed by the mother, with some expression of understanding by the solicitor for the mother who has had similar difficulties.  The application is opposed by the father who is presently having supervised time with the younger subject child, and his application is one for residence.  The application is neither supported nor opposed by the Independent Children’s Lawyer.

   EVENTS LEADING UP TO THE APPLICATION

2. Tendered into evidence as Exhibit 2 is correspondence between the maternal grandmother, her former solicitors, and the Legal Aid Commission between 24 September 2020 and 10 December 2020.

3. An email from Legal Aid to the maternal grandmother on 24 September 2020 suggested there were some difficulties in the professional relationship between the maternal grandmother and her solicitors and advice was given at that time about how to apply for a transfer of the grant.  The solicitor for the maternal grandmother apparently contacted Legal Aid and submitted an extension of aid for final hearing.  The solicitor clearly did continue on 6 November 2020 and 10 November 2020, respectively.

4. Relevant affidavits by the maternal grandmother and her daughter, the maternal aunt, were filed in anticipation of trial.

5. On 3 December 2020, the maternal grandmother received a letter[1] from Legal Aid stating the following:

   [1] Exhibit 1.

   We have decided not to pay for the legal costs or expenses that your lawyer recently asked for.

   You still have your grant of legal aid - we have just not agreed to pay for more work or expenses on your case at this stage.

   Your lawyer can’t ask you to pay for the work or expenses we will not pay for.  They can still ask us to pay for more work or expenses for your case in the future. 

   The reason for our decision:

   You must meet our assets test before you can get legal aid - unless there are exceptional circumstances.

   You have not met the assets test because…

6. The letter went on to refer to assets presumably held by the maternal grandmother.  This letter must have been difficult for the maternal grandmother to understand.  If her assets exceeded the cut-off point it would be hard to understand why the grant was left in place.

7. The solicitors for the maternal grandmother then filed a Notice of Ceasing to Act in these proceedings.  It was understandable.

8. On 4 December 2020 the maternal grandmother received a letter from her solicitor – also understandable, including the sentence:[2]

   I don’t know why Legal Aid left their decision to the last minute.

   [2] Exhibit 2.

9. The solicitor raised with the maternal grandmother, waiting for the outcome of an appeal against the decision, and quite fairly and squarely put the options to their client:  Self-representation, private funding, or hope that Legal Aid could process an appeal within seven days.[3]  Not unreasonably, in my view, the solicitors put a deadline on receiving instructions. The maternal grandmother, and I’m unaware whether it was done herself or through her solicitor, filed an urgent appeal.

   [3] Exhibit 2.

10. Thereafter, on 8 December 2020, the maternal grandmother expressed her frustrations over the position she found herself in.  Attempts, which could be described as frantic, were made to have the appeal determined in sufficient time for this trial.

11. A letter dated 10 December 2020 was sent to the maternal grandmother to her post office box advising her as follows:[4]

    We will pay for more work or expenses in your case.  We have told your lawyer.

    [4] Exhibit 1.

12. The letter then went on to set out all of the matters that would be paid for.  There was no particular reference to the fact that the trial, on a final basis, was due to commence on the following Monday.

13. This proved to be a pyrrhic victory for the maternal grandmother.  Her solicitors had already gone off the record and had appropriately advised her.  She was left in a position of not being able to represent herself and I am satisfied that she feels unable to do that.  She is here at Court this morning with all parties wanting to proceed and the maternal grandmother also wanting to proceed but not in a position to do so.

14. I am satisfied, in the circumstances, that this is a genuine application and that there have been genuine difficulties giving rise to it.  To refuse it would be to create hardship for the maternal grandmother, but also possibly to distort the outcome of what is quite a complex case involving two subject children with very separate and different considerations who are living apart from each other.

15. For those reasons, I intend to adjourn the proceedings with this reservation that, in the event that counsel becomes available by the conclusion of today, that is by 4 o'clock, who is willing to take on the matter, perhaps commencing tomorrow, then the matter can proceed.  But if that is not the case, then at 4 o'clock the trial dates are adjourned.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the oral Reasons for Judgment of the Honourable Justice Cleary.

Associate: 

Dated:       14 December 2020