UNWIN & UNWIN

[2018] FamCA 1155

FAMILY COURT OF AUSTRALIA

UNWIN & UNWIN [2018] FamCA 1155

FAMILY LAW – PRACTICE AND PROCEDURE – ADJOURNMENTS – where the mother on the first day of trial sought an adjournment – where the adjournment was opposed by the father and Independent Children’s Lawyer – where the reason given for the adjournment was that the mother had separated from her husband and he was a witness in her case – where the Court was informed that the mother’s husband was now unable or unwilling  to give evidence – where the mother wished to issue a subpoena for him to attend Court – where there is no guarantee that the mother’s estranged husband would be able to be served and would attend if he was – where the Court has discretion whether to grant an adjournment or not – where parties originally commenced proceedings in 2013 – where final orders were made in 2014 – where there were serious risk of harm issues raised in the previous proceedings – where the mother commenced fresh proceedings in 2016 seeking a variation of the final orders – where the younger child has repeated and amplified historical allegations of having being sexually abused by her teenage brother from her mother’s previous relationship – where the parties and Court were otherwise ready for the trial to commence – where there has been a Children and Parents Issue Assessment and a Family Report prepared – where the family consultant is organised to give evidence – where there is considerable force in the argument that further delay in respect of the children would impact adversely on them in the circumstances – where the adjournment is declined due to the adverse impact upon the children in relation to the time and communication with their mother.

FAMILY LAW – PRACTICE AND PROCEDURE – COSTS – where the mother is in receipt of legal aid – where the father is privately paying for his solicitor and counsel – where the mother would not be able to afford a costs order against her in the event that the adjournment was granted – where it is possible that if adjourned the father would not only bear the costs of this trial but another one.

Family Law Act 1975 (Cth)

Jones v Dunkel (1959) 101 CLR 298
CDJ & VAJ (1998) 197 CLR 172

APPLICANT: Ms Unwin

RESPONDENT: Mr Unwin

INDEPENDENT CHILDREN’S LAWYER:       Coast Law

FILE NUMBER: NCC 2859 of 2012

DATE DELIVERED: 2 October 2018

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 2 October 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Kelly

SOLICITOR FOR THE APPLICANT: Intercept Law

COUNSEL FOR THE RESPONDENT: Mr Levick

SOLICITOR FOR THE RESPONDENT: Richardson Legal

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Murray

SOLICITOR FO THE INDEPENDENT CHILDREN’S LAWYER: Coast Law

Orders

1. The oral application made on behalf of the applicant mother for adjournment is dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02 A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWECASTLE

FILE NUMBER: NCC 2859 of 2012

Ms Unwin

Applicant

And

Mr Unwin

Respondent

EXTEMPORE REASONS FOR JUDGMENT

1. This is an application by Ms Unwin, the applicant mother, for adjournment of a four-day trial due to commence today, 2 October 2018. The application is opposed by the father and the independent children’s lawyer. The Court was advised this morning that the mother had separated last week from her husband of 18 months, Mr Y. The reason for the adjournment application is that Mr Y, who had sworn on 12 September 2018 an affidavit in support of the mother’s case, would not be available to be cross-examined.

2. The solicitor for the mother had sworn an affidavit setting out conversations with Mr Y in which the latter had stated words to the effect that he would not come to Court, that he was going to work today, would be leaving for CC Town and would soon be moving away. Quite properly, counsel for each of the other two parties accepted that evidence from counsel for the mother without the necessity for the affidavit of the solicitor being filed. Counsel for the mother submitted that the adjournment was necessary to enable time for a subpoena to attend and give evidence, to issue, and to be served on Mr Y.

3. Further, that the mother was confident, despite their differences as a couple, that Mr Unwin would come to Court and tell the truth. “The truth” is a reference to evidence about whether or not the children were left unsupervised with the mother’s young adult son, Mr H, and whether Mr Y did or did not kiss or cuddle the younger child, or both of them, over their opposition. In the circumstances, the Court is prepared to read the affidavit of Mr Y, accepting that the reference in paragraph 9 to visits by the children on Saturdays, probably was intended to be a reference to Sundays.

4. However, it must be the case that the untested evidence of Mr Y can be given only limited weight. Counsel for the other two parties confirmed that no point would be taken under the authority of Jones & Dunkel, there having been a reasonable explanation for the absence of Mr Y.

5. The Court always has a discretion over whether to grant an adjournment. In this matter, the considerations are that:

   (i)The impact on the children;

   (ii)Financial matters; who bears the cost;  and

   (iii)The family consultant.

6. This is not an application for the making of a parenting order for which a Court must regard the best interests of the child as the paramount consideration. However, the decision of the High Court in CDJ & VAJ[1] is authority for the principle in an application such as this, adjournment of parenting proceedings, that the best interests of a child will be a relevant matter, often one of overwhelming importance. This issue of the impact of adjournment on the children was appropriately raised by counsel for the Independent Children’s Lawyer (“ICL”).

   [1] CDJ & VAJ (1998) 197 CLR 172

7. The children are now aged 11 and almost nine. The parents separated in August 2011 when they were four and one. The first parenting application was filed on 29 July 2013. Serious issues of unacceptable risk of harm were raised. There was a Magellan Report. On 1 May 2014, final orders were made. In terms of time and communication, which is the issue again before the Court, the time for the children with the mother was to progress to six hours on alternate Sundays as the final position.

8. On 22 December 2016, the mother filed in the Federal Circuit Court (“FCC”) a fresh application proposing an expansion of time for her with the children to substantial and significant time. She conceded that parental responsibility and residence would remain with the father.

9. The father reports that in January 2017, the younger subject child spoke to him of events which were investigated in 2013. The complaints were of recollections of sexual abuse by her then teenaged brother, the mother’s older child. A Magellan Report identified some risks with the children but did not substantiate alleged sexual abuse of the child.

10. In early 2017, both children were interviewed again by JIRT. The evidence suggests that during interview with the older child, B, he was told by a police officer for the first time of abuse allegations raised on behalf of his sister.

11. The father filed a Notice of Risk raising allegations about other matters such as whether the children were or were not being left in the unsupervised presence of the older brother, and some other matters. Time between the mother and the children ceased.

12. In early 2017, the mother married Mr Y.

13. In May 2017, the father says he received certain advice from a JIRT officer.

14. On 8 May 2017, the proceedings were transferred from the FCC to this Court. At that time, the 2014 orders were suspended and further orders made, being two hours on alternate weekends at a contact centre. The matter was then transferred to this Court.

15. There has since been a Children and Parents Issues Assessment and a Family Report. The trial was poised to go ahead with the mother’s young adult son on affidavit and willing to participate.

16. There is considerable force in an argument that a further delay in respect of the children will be adverse to them in those circumstances.

Costs 

1. Counsel for the mother frankly put on the record that the mother would be unable to meet a costs order in the event that an adjournment was granted. Mr Y, her husband, was the breadwinner for the household and the mother was described as impecunious. The mother has a grant of Legal Aid. The father does not have a grant of Legal Aid. The father is paying his solicitor and counsel. Further, he has arranged this week off work for the trial, but the Court is told that he would have difficulty obtaining more leave in the short-term future.

2. The father presently works part-time, 33 hours a week, around the care and supervision of the children. The adjourned dates, if it were to be adjourned, would likely be in March or April 2019. There is no certainty that Mr Y would be able to be served or would attend if he was. There is only the mother’s optimism to support the likelihood that he would be. There is a possibility, if adjourned, that the father would not only bear the costs of this trial but another one.

Availability of the family reporter

1. The family consultant who prepared the report of 30 January 2018 is required for cross‑examination. The family consultant is available this week but he will shortly no longer be working for the Court. Of course, he can be made available in future by arrangement but with less convenience as to timing and dates than at present.

2. Considering all relevant factors raised here, and particularly the likely adverse impact on the children of ongoing uncertainty about the time and communication with the mother, I conclude that the appropriate course is to decline the adjournment.

3. An order is made accordingly.

I certify that the preceding twenty one (21) paragraphs are a true copy of the ex-tempore reasons for judgment of the Honourable Justice Cleary delivered on 2 October 2018

Associate: 

Date:  2 October 2018