Ward and Ward (Adjournment)
[2016] FamCA 827
•29 September 2016
FAMILY COURT OF AUSTRALIA
| WARD & WARD (ADJOURNMENT) | [2016] FamCA 827 |
| FAMILY LAW – PRACTICE AND PROCEDURE – Adjournment – where the father’s application for an adjournment dismissed – father’s application for an adjournment was on compassionate grounds – where father travelled to Adelaide to be with his terminally ill father – where the father’s oral submissions relied upon a desire to obtain legal representation – where father’s refusal to avail himself for a short adjournment to participate from the Adelaide Registry weighs against an adjournment – where the trial will not proceed undefended |
| Family Law Act 1975 (Cth) s 79ZN |
| AON Risk Services Australia Ltd v ANU (2009) 239 CLR 175 Forster & Forster [2014] FamCAFC 88 |
| APPLICANT: | Mr Ward |
| RESPONDENT: | Ms Ward |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Sinclair |
| FILE NUMBER: | CSC | 260 | of | 2013 |
| DATE DELIVERED: | 29 September 2016 |
| PLACE DELIVERED: | Cairns |
| PLACE HEARD: | Cairns |
| JUDGMENT OF: | Tree J |
| HEARING DATE: | 19 September 2016 |
REPRESENTATION
| THE APPLICANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mr Jacobs |
| SOLICITORS FOR THE RESPONDENT: | Cuthbertson & Co Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER: | Ms Dart |
| SOLICITORS FOR THE INDEPENDENT CHILDREN'S LAWYER: | Sandra Sinclair Lawyers |
Orders
The father’s Application in a Case filed 15 September 2016 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 Ward & Ward 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: CSC 260/2013
| Mr Ward |
Applicant
And
| Ms Ward |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
On 18 May 2016, I directed that this matter be listed for trial in either the September or November 2016 sittings of the Family Court of Australia in Cairns, with an estimated hearing time of eight days. Subsequently the matter was listed to commence on 19 September 2016. On 15 September 2016 the father filed an Application in a Case seeking to adjourn the looming trial. On 19 September 2016 I dismissed that application for reasons to be given in due course. These are those reasons.
BACKGROUND FACTS
These proceedings commenced as long ago as February 2014, when the mother filed an Initiating Application seeking parenting orders in the Federal Circuit Court of Australia. In due course they were listed for trial, and on 23 March 2015 Judge Scarlett made final orders by consent, which provided for the eldest child to live week about between the parents, and for the younger child to likewise do so, upon the successful conclusion of some reunification counselling between him and the mother. The Independent Children's Lawyer was to remain appointed for a further period of 12 months, presumably, so as to assist with the implementation of the orders.
Unfortunately things did not proceed as anticipated. The reunification counselling was not a success, and was ultimately abandoned. The Independent Children's Lawyer brought the matter back on because the intended operation of the orders had been thwarted.
On 17 December 2015 the proceedings were transferred from the Federal Circuit Court to this court, and progressed towards a further trial.
By the time I heard the father’s application to adjourn the trial, the youngest boy had not lived with the mother for more than two years. Rather for that period of time he had lived with his father and the father’s new wife. Not only did the attempt at reunification between the younger child and the mother fail, but subsequent orders made by the Federal Circuit Court, which required the child to be produced to spend time with the mother at a shopping centre each week, also proved to be a failure. The younger child was regularly defiant and abusive during those encounters, and plainly did not wish them to proceed.
Although for some period the parties had achieved equal shared care of the older child, in about April of this year that arrangement ceased, and he thereafter has lived with the mother, and refused to spend time with the father unless it was without the presence of the father’s new wife. Moreover it appears as though there has been little, if any, telephone communication between the eldest child and the father since April, although I am told that he spent two hours with his father on Father’s Day.
However, on one view, even sadder than the breakdown of the relationship between the children and one of their parents, is the fact that the sibling relationship now appears to be substantially strained, if not actually fractured. Whereas early in these proceedings the Family Reports noted that the children had a strong sibling bond, and regarded each other as “the best,” they no longer enjoy such a bond. That is all the more remarkable because they attend the same high school, but apparently rarely speak there.
The most recent Family Report was prepared on 8 September 2016. In it, the writer, Ms B, opined that “it is of critical importance for the siblings to be supported to repair this relationship and as soon as possible.” She went on to further opine that both children are at a real risk of emotional harm, in the case of the younger child, because of the prolonged estrangement from his mother, and the elder child, to a lesser extent because of the present absence of relationship with his father. Ms B concluded that “there is a considerable risk of emotional harm for both children should they reside in the father’s care.” This informed her recommendation that both children move to live with the mother and spend time with the father as she may determine.
THE FATHER’S APPLICATION
The father applied to adjourn the trial “on compassionate grounds.” Unfortunately, his own father is terminally ill in hospital in Adelaide, and apparently his health is declining. It is anticipated that he now has only a short time to live. Annexed to the affidavit which he swore in support of his application, the father appended an undated message from his step mother, in which she relayed that his father was asking to see the father and concluded “we need you here please.” Notwithstanding the imminent trial, the father in fact travelled from Cairns to Adelaide, and appeared by video link from the Adelaide Court house to argue his application for an adjournment. Although his affidavit only dealt with the compassionate grounds for an adjournment, in his oral submissions he also relied upon a desire to obtain legal representation. During the course of his submissions I inquired of him whether, given that I had ascertained that a court room could be made available for him in Adelaide to attend the trial electronically, he wished to avail himself of that opportunity in the event that I did not accede to the adjournment application. He declined, and indicated that even if I were prepared to allow him a short adjournment to enable him to marshal his papers and prepare for the trial, he would not avail himself of that opportunity.
In a sense therefore, it became an all or nothing application for an adjournment, in that the father wanted it adjourned for a substantial period of time to enable him to continue to attend upon his father, and, albeit it was only raised during the course of the hearing itself, to obtain legal representation. That said, at paragraph 12 of his affidavit he recognised that his travel to Adelaide potentially placed him at a position of disadvantage, because he said:
This is an immensely difficult time for me but I have to respect my father’s wishes even though it may mean that I have to forfeit attendance at my family law trial and any potential outcome that means for me and my family.
RELEVANT STATUTORY PROVISIONS AND LEGAL PRINCIPLES
Section 79ZN of the Family Law Act mandates the court to give effect to principles there enumerated not only in performing duties and exercising powers in relation to child related proceedings, but importantly, by sub-paragraph (b), also in making other decisions about the conduct of child related proceedings.
The principles relevant to these proceedings are principles 2 and 5, contained respectfully in sub-sections (3) and (7). They provide:
The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.
…
The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality and legal technicality inform as possible.
The following principles emerge from relevant case law:
·The decision to grant or refuse an adjournment is a matter of practice and procedure within the discretion of the trial judge;[1]
·Generally speaking, if there is no injustice to any other party, and a refusal to grant the adjournment would result in a denial of natural justice to the parties so applying, the application should be granted;[2]
·However the effect of an adjournment on court resources, including the displacement of claims by other litigants is relevant, as there is a public interest in the most efficient uses of court resources;[3]
·The lack of legal representation may, in an appropriate case, compel an adjournment.[4]
[1]Bloch v Bloch (1981) 180 CLR 390 at 395; Elgin & Elgin [2015] FamCAFC 155.
[2]Sali v SPC Ltd (1993) 67 ALJR 841 at 843.
[3]Sali v SPC Ltd (supra); AON Risk Services Australia Ltd v ANU (2009) 239 CLR 175 at [94].
[4]See for example Forster & Forster [2014] FamCAFC 88 at 8ff, accepting that they are unusual facts in that case.
EVALUATION
The following points are in favour of the grant of the adjournment:
·It seems clear that the paternal grandfather is indeed gravely ill, and no criticism can be made of the father for wanting to attend him at this stage;
·Although the father and his new wife declined to be involved in the most recent Family Report interviews, he has otherwise been fully engaged in the litigation;
·It is an important matter for a parent to be able to litigate in relation to their children, and it is a serious matter to deny them the opportunity to do so.
However there are countervailing considerations which tell against acceding to the application. Principal amongst those are as follows:
·The earliest that a block of time such as this trial requires would be available in Cairns is not until late April 2017;
·The present situation, which sees fractured or alienated parental relationships for each of the children, and a fractured fraternal relationship between them, is of great concern;
·Although untested at this point in time, the Family Report writer’s opinion that both children are at risk if they reside with the father, is likewise highly troubling;
·These proceedings have now been on foot for well in excess of two years, and it is plain from the material that the children are well aware of the litigation, and that knowledge is a burden and source of stress to them;
·Although the court attempted to make some arrangements available for the father to attend the trial electronically from Adelaide, including a short adjournment to enable him to properly prepare for the hearing, he expressly disavowed any desire to proceed in that manner, which would have enabled to present his case, albeit in perhaps less than optimal circumstances;
·The application has been made very late in the day, given that the trial has been listed for many months;
·The only way in which the trial could proceed earlier than late April 2017, would be for it to displace already listed trials, thereby disadvantaging other litigants and children;
·Whilst it is not the equivalent of the father being able to press his claim, firstly there is an Independent Children's Lawyer, who does have a role somewhat akin to that of a contradictor to the mother, and secondly, the trial will not proceed undefended, in that the father has made it plain what his preferred orders will be, and inevitably I will be required to consider those in due course.
Weighing those matters in the balance tells strongly in favour of the application being dismissed. Particularly the father’s refusal to avail himself of an opportunity which would have enabled him to spend time with his family and father in Adelaide, but otherwise participate in the trial, tips the balance against his proposal.
CONCLUSION
For these reasons on 19 September 2016 I dismissed the father’s application.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 29 September 2016.
Associate:
Date: 29 September 2016
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