Wafula and Batley (No 2)

[2019] FamCA 1050

FAMILY COURT OF AUSTRALIA

WAFULA & BATLEY (NO. 2) [2019] FamCA 1050

FAMILY LAW – CHILDREN – Interim – Adjournments – where the mother applied for an adjournment – where the final hearing has been listed on in excess of 20 days and is not completed – where the mother proposed a trial period of unsupervised but not overnight time – where given the late stage of the final hearing, the resources expended by the parties and the impact of the continuing litigation on the welfare of the child the application for adjournment was denied – where the solicitors for the mother have withdrawn on the basis that they are unable to obtain instructions – where the mother was seeking an adjournment in order to obtain further legal representation – where the court has an obligation to bring proceedings to a timely conclusion – where there is no guarantee the mother would obtain legal aid – where the application for adjournment of the matter is refused

Family Law Act 1975 (Cth) Division 12A

APPLICANT: Mr Wafula

RESPONDENT: Ms Batley

INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

FILE NUMBER: MLC 9694 of 2015

DATE DELIVERED: 10 May 2019

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 10 May 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Bryan

SOLICITOR FOR THE APPLICANT: Berry Family Law

THE RESPONDENT: In Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Whitchurch

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

Orders

No orders made

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 Wafula & Batley 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 17.02A(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

FILE NUMBER: MLC 9694 of 2015

Mr Wafula

Applicant

And

Ms Batley

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This matter is listed before me on what I believe, without going through all of my notes is day 25 of the final hearing. There have been adjournments because of my availability but also occasions when the mother, for varying reasons including her health, either hasn’t been here or has not been able to give evidence.

2. When the matter resumed on Tuesday 7 May 2019, I was asked to stand the matter down as the parties required some time for discussions. Although I don’t know what the content of those discussions was, the matter was not resolved. Thereafter an application was made on behalf of the mother for interim orders and an adjournment. This represented a shift in her position, in that the orders she proposed were for unsupervised, albeit limited time for the child with the father. The mother was seeking to have the matter adjourned until November to allow for what she said was a trial period. 

3. Given the late stage of the final hearing, in particular the resources that had gone into it, and of even greater significance the impact of the ongoing litigation on the welfare of the child I declined to make those interim orders or adjourn the final hearing.

4. On Wednesday 8 May 2019, the mother as I understand it, did attend Court in the morning but left the Court shortly thereafter ultimately returning to the Court later that day. There was some cross-examination in the afternoon, but the morning was lost. 

5. When the matter was called on Thursday 9 May 2019, I was advised by counsel for the mother that her instructions had been withdrawn and she sought and was granted leave to withdraw.

6. I was further advised by the mother’s solicitors later that day that they had attempted to contact the mother but were unable to get instructions, and they similarly sought leave to withdraw on the basis their instructions had been withdrawn.  I similarly granted them leave to withdraw.

7. The mother did not attend Court on 9 May 2019.  The maternal grandfather had been in the witness box at the conclusion of proceedings on 8 May 2019, and was to be re-examined at the commencement of the proceedings on 9 May 2019.  He was not initially in attendance, but ultimately I think with the encouragement of the counsel for the Independent Children’s Lawyer (“ICL”), he did attend.

8. The maternal grandfather advised me from the body of the Court that the mother had reached the conclusion that irrespective of the outcome, that outcome will be something that she won’t be able to deal with, and if that’s the case she’s probably better to disengage now. At that point there was no suggestion that the mother was seeking an adjournment or that it was her intention to seek legal representation.  However, this morning I was advised by the mother that she was seeking an adjournment to enable her to apply for or reactivate a grant of aid, which she says has previously been approved and to instruct new solicitors.

9. I stood the matter down to enable her to firstly speak to the Legal Aid duty lawyer, however it appears that there is a conflict and that was not possible. The matter was further stood down to enable the mother to make some further inquiries of the solicitors she was proposing to engage, subject to the grant of Legal Aid in J Town, in circumstances where they had previously advised her that she could possibly attend an appointment at their offices on Wednesday or Thursday of next week.

10. At my request the mother made some further inquiries, and I’m told by her that there was no solicitor in the office who could answer her enquiries, but that she is optimistic that she should be able to obtain some sort of information on Monday, and that she has been sent an application for Legal Aid to complete and return in anticipation of her attending upon them.

11. The application for adjournment is opposed by both counsel for the father and counsel for the ICL.  Both of them raise concerns about the matter simply being left in abeyance.  There are clearly a number of issues that arise with respect to that, one being that the father is currently only having supervised time, but perhaps of even greater concern is the impact of the proceedings upon the mother, her family and X.  There is some evidence in the family consultant’s report that X may be aware of when his mother is not coping. The concern would be that although the mother would say she is able to hide these issues from the child or protect the child from these issues, that the ongoing litigation would have an impact on the child.

12. Legal representation is a privilege and not a right.  The mother is intelligent and it is her case that she’s functioning well in other aspects of her life, including in employment and study.  She is certainly better educated than many of the litigants who appear on their own behalf in this Court.  I am mindful that she has been under a great deal of stress and that that may impact upon her capacity, to some extent, to conduct proceedings. 

13. However, firstly I have to provide procedural fairness and a level playing field to both parties in the proceedings.  I have an obligation to try to bring the proceedings to a conclusion as quickly as I can.  That is, in my view, particularly important after a trial of this length, and in particular in relation to the welfare of   this very young child. 

14. The Division 12A of the Family Law Act 1975 (Cth) sets out principles for dealing with proceedings relating to children. Those principles are that the Court is to consider the needs of the child concerned and the impact that the conduct of proceedings may have on the child in determining the conduct of the proceedings. The second principle is that the Court is to actively direct, control and manage the conduct of proceedings. The third principle is that the proceedings are to be conducted in a way that will safeguard the child and protect the parties to the proceedings against family violence. The fourth principle is that the proceeding is, as far as possible, to be conducted in a way that will promote cooperative and child-focused parenting by the parties. The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality and legal technicality and form as possible.

15. We are now, it would appear, down to the last two witnesses, one of whom is the mother’s witness, her psychiatrist Dr F.  Dr F is available to give evidence on Monday morning.  The other witness is the family consultant, and enquiries are being made as to her availability.  As Dr F is the mother’s witness, she would normally not be cross-examining her own witness, but potentially would have to re-examine that witness at the conclusion of cross-examination.  She will no doubt want to cross-examine the family consultant.

16. The difficulty I see with adjourning the proceedings is that there is no guarantee that the mother will either be granted Legal Aid or that she will find solicitors to act on her behalf and there is no timeline that I can consider in terms of how long this matter might need to be adjourned for. In circumstances where the mother had legal representation until yesterday morning, and there are only two witnesses remaining, the necessity for legal representation is in my view different to what it would have been at the commencement of the trial.

17. The father has already been cross-examined by counsel acting on behalf of the mother.  As I’ve already said, the mother would not normally be expected to cross-examine her own witness, but would no doubt want the opportunity to cross-examine the family consultant. 

18. In my view, the matter should not be adjourned, and any concerns that the mother may have, if she does obtain a grant of aid and does get legal advice, can be addressed, allowing for some informality in the proceedings, once she has obtained that advice.  Once I hear that evidence, I can order a transcript of the evidence of Dr F and of the family consultant that would then be available to any solicitor that is engaged by the mother, who could then ascertain what, if any, further re-examination of Dr F or further cross-examination of the family consultant might be required or, for that matter, if leave were to be granted, to cross-examine Dr F, although there are certain formalities in relation to that. 

19. In my view, that would allow the evidence potentially to be completed, subject to any further application that might be made, and would  accommodate the mother obtaining, if she can, Legal Aid and legal advice.  Even if the mother is granted Legal Aid and solicitors are prepared to act on her behalf that would only be in relation to these remaining witnesses, because the other witnesses have given their evidence and been cross-examined when the mother was represented.  There is potentially some further re-examination of the maternal grandfather that similarly could be dealt with if the mother’s new legal advisors, whoever they might be, consider that necessary.

20. The mother makes the point that if I allow the trial to continue on Monday with Dr F, she will need to go through Dr F’s notes. I’m told that those notes, which are at Court, are fairly voluminous, but the mother will have this afternoon to inspect them or she can photocopy them so that she can have access to those notes over the weekend. I am satisfied that the mother will have an opportunity to inspect the notes.

21. I am content, and no one has taken any objection, to the mother’s father acting as her McKenzie friend and sitting at the bar table to assist her, and the mother will have the opportunity to prepare questions over the weekend. If the mother isn’t granted Legal Aid and is not legally represented she will in any event have to conclude proceedings acting on her own behalf.

22. If she represents herself on Monday and then solicitors are engaged I will order a transcript of that hearing and they will have an opportunity to look at the evidence of those witnesses and consider the possibility of those witnesses having to give further evidence. I will certainly consider that.

23. However, I am not, after 24 or 25 days of hearing prepared at this late stage, when the mother has been ably represented by very experienced solicitors and counsel leading up to and until yesterday morning throughout the trial to further delay the evidence of those remaining witnesses.  With that qualification, in relation to the consideration of their evidence by any solicitors engaged by the mother, I do not propose to accede to the mother’s adjournment application, it seems to me that the matter can be concluded and move towards an outcome. 

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 10 May 2019.

Associate:  

Date:  20 March 2020