Walls and Reynolds

[2018] FamCA 481

FAMILY COURT OF AUSTRALIA

WALLS & REYNOLDS [2018] FamCA 481

FAMILY LAW – CHILDREN – Interim Application – Where father seeks adjournment of the trial for twelve months and for unsupervised time with the child – Where the interests of justice do not favour an adjournment for twelve months – Where the court is not satisfied on an interim basis that the father poses no risk of harm to the child to warrant unsupervised time – Application dismissed.

Family Law Act 1975 (Cth)

APPLICANT: Ms Walls

RESPONDENT: Mr Reynolds

INDEPENDENT CHILDREN’S LAWYER: Ms Wallace

FILE NUMBER: TVC 403 of 2009

DATE DELIVERED: 24 May 2018

PLACE DELIVERED: Cairns

PLACE HEARD: Cairns

JUDGMENT OF: Tree J

HEARING DATE: 24 May 2018

REPRESENTATION

SOLICITORS FOR THE APPLICANT: Everett’s Family Law

THE RESPONDENT: In person

SOLICITORS FOR THE INDEPENDENT

CHILDREN'S LAWYER:

Legal Aid Queensland

Orders

1. The father’s Application in a Case filed 17 May 2018 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 Reynolds & Walls 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 CAIRNS

FILE NUMBER: TVC 403 of 2009

Ms Walls

Applicant

And

Mr Reynolds

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is an application to adjourn the hearing of a trial which is listed to commence before me on 4 June 2018.  The matter was listed for trial then on 9 November 2017 and trial directions for the preparation and filing of material were then made.  The mother has complied with the orders.  The father has not.  He has now brought an application seeking to adjourn the hearing of the trial for 12 months, together with the making of some interim orders which would see him, forthwith, commence unsupervised time with the child every month and to have weekly unsupervised phone communication.  He also seeks some other orders. 

2. Critical to the application to adjourn are two things:  First is the purpose which is sought to be effected by the adjournment; secondly is the interests of justice.  Those two may well overlap.  The purpose is said to be to afford the father an opportunity to properly prepare for trial, including retaining solicitors and, perhaps, counsel to assist him to present his case.  He says that he has suffered recent ill health and that he is not able to presently work in his previous occupation. 

3. However, his material does not put forward any sound basis on which I could conclude that, even if the matter were to be adjourned for 12 months, he would be in any markedly better position than he presently is.  Moreover, it is difficult to discern why the father could not effectively articulate his case, together with the assistance that the Court provides to self-represented litigants, even without the benefit of a solicitor or counsel. 

4. Moreover, when I turn to consider the interests of justice, I note that this litigation has been on foot between the parties since 2014 when the matter was commenced in the Family Court of Western Australia and, moreover, that on 16 March 2016, consent interim orders were made under which the father spent supervised time with the child after she had been prepared for reunification with him by some counselling. 

5. The father did not disagree with the suggestion that attempt at reunification failed.  It is difficult in the extreme to see how the proposal that the father has for the resumption of unsupervised time in the interim could possibly be seen to be a safe, conservative or sensible course for the child. 

6. However, to return to the application for an adjournment, I am not satisfied that the interests of justice weigh in favour of the trial being adjourned.  I am satisfied that this is a proceeding which needs to come to conclusion. 

7. Moreover, given that the father anticipates that in the interim, there would be a regime of orders of unsupervised time, it seems to me, as I have observed in the preceding comments, that there is a real practical impediment to any such orders presently being made.  That is because such an order, ie, the resumption of unsupervised time and communication, would need to be made if, and only if, I was satisfied that the father posed no risk of harm to the child or, at least, no risk of harm that should be mitigated by supervision.  It seems to me, given the highly conflicting evidence in relation to risk which it is asserted the father poses, that I could not be so satisfied on an interim basis, noting that the Court tends to work conservatively and protectively in such circumstances. 

8. Such conclusions as would be necessary to found those orders could only be made, it seems to me, in this case after a trial.  Moreover, I note that the last occasion that the father spent supervised time with the child appears to have precipitated not merely the early termination of that particular event, but the withdrawal of the contact centre services to effect the continued supervision of the father.  The father tells me, in his submissions – although there is no evidence to that effect that I am aware of – that the contact centre has now reneged and said that they would resume supervised time.  However, that is not what the father proposes. 

9. Moreover, it seems to me as though the child’s response to that last occasion, and her strongly articulated wishes to the family consultant who prepared the most recent family report in March of 2017 would make the proposal the father advances as the interim regime, fraught with difficulty and risk to the child.  I am not satisfied that the proposed interim regime would be in the best interests of the child, and even if I were minded to adjourn the trial, which I am not, would be highly reluctant to order, and on the state of the material and the submissions before me, would not order as the father proposes.  I, therefore, decline to adjourn the trial and otherwise dismiss the father’s application in a case filed 17 May 2018. 

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered 24 May 2018.

Associate: 

Date: 24 May 2018