Watt and Watt

[2008] FamCA 225

FAMILY COURT OF AUSTRALIA

WATT & WATT [2008] FamCA 225

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournments – Application refused

APPLICANT: MRS WATT

RESPONDENT: MR WATT

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLF 4487 of 2001

DATE DELIVERED: 25 February 2008

PLACE DELIVERED: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE:

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms J.L. Stewart

SOLICITOR FOR THE APPLICANT: Kordell Lawyers

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT:

INDEPENDENT CHILDREN’S LAWYER COUNSEL: Mr R.D. Curtain

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: Sarah Lia

Orders

IT IS NOTED that publication of this judgment under the pseudonym Watt & Watt is approved pursuant to s 121 (9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 4487 of 2001

MRS WATT

Applicant

And

MR WATT

Respondent

REASONS FOR JUDGMENT

1. The husband seeks an adjournment of the wife's application for orders that he shall spend no time with his children R, 13, and A, 10.  The five-day case is listed to start today.  His adjournment is strenuously opposed by the mother and by the Independent Children’s Lawyer (ICL). 

2. The husband says that very recently, due to differences, he sacked his lawyer.  He talks about a potential difficulty with Legal Aid funding, but the details of that were a little unclear and I did not want to press into areas where he would be forced to divulge things that should not be divulged.  The upshot is that he says his lawyer was not representing his interests, he is not going ahead with that lawyer, and the lawyer in fact filed a Notice of Ceasing to Act last week on 21 February. 

3. The husband is serving a prison sentence.  He says that presently he is not able to gather together the money that is required to be represented.  He believes he will need about $25,000.  He seeks the adjournment until about April or May 2009, so that he can hopefully be released from prison, gain some employment, and take out a personal loan to pay for a lawyer. 

4. The husband wrote a letter to the court dated 12 February 2008, about the adjournment.  In it he referred to his human rights not being served unless the adjournment is granted, and he cited the 2006 Human Rights Charter Act.  That Act, I would gather, is the recently introduced Victorian Act.  It does not apply in this Court.  In a sense that does not really matter.  Whether or not I grant an adjournment is a discretionary matter, but I must apply principles of natural justice and bear in mind a party's right to be heard and put his case.  They are important cornerstones of our system of justice.

5. As to whether the husband can properly be heard without legal representation, together with the impact of an adjournment on the other parties, ensuring that their rights are also protected, must be considered in context.  That context is very important in this case.

6. The case has been in the court system for what I would regard as an unconscionable period.  I can see from the history that it started in the Federal Magistrates’ Court with the wife's application on 13 December 2005.  For reasons that are absolutely inexplicable to me, the case was transferred to this court by a Federal Magistrate after 19 full months in that court.  Thereafter, it wended its way through the list of cases awaiting a trial in this court.

7. I can see from the file that last July the parties through their solicitors were advised that the case would be prepared for hearing.  I held a detailed mention in this case on 15 November 2007.  All the arrangements were made for trial, and on 19 November 2007 the parties were told of this date for hearing.  It seems that subsequently the husband advised the court that he was choosing to appear by way of video‑link from Prison, and that is how he is appearing today.  Otherwise, until last week there was no other contact with or suggestion to the court along the lines that any adjournment would be sought.  In fact, the husband’s material for trial was filed along with the material of the mother and the ICL.  Until the husband’s request for an adjournment arrived last week, each party has had well over three months' notice and time to prepare for trial.

8. It is not surprising that further context or background was emphasised by the parties opposing the adjournment.  In June 2004, the child A was sexually abused by the father.  In October 2005, he was sentenced to six years' imprisonment with a minimum of three years’ to be served.  He is eligible for parole in October 2008.  At this stage of course he does not know whether or not he will receive that parole.  His estimate or his hope is that he might be released in November 2008.

9. The mother is adamant throughout her material that both children, R as well as A, have suffered enough as a result of their father's breach of trust and criminal conduct.  Her case, that there should be no contact at all, is supported by the ICL. 

10. Although that outcome I know is strongly opposed by the husband, and although there is some expert support for his position, - and that is something that I am going to have to listen to and make decisions about, - amidst the conflicting expert opinion, there is at least some consensus, which accords with commonsense, as to the stresses the mother has suffered as a result of the father's abuse of A.  She has had to cope with the fallout for both of the children; the stress of the criminal proceedings; and the rigours of raising two young children absolutely single-handedly without support from their father for obvious reasons.  In addition, there has been the stress of these proceedings on foot for almost three years, and I now understand that she has had to fund these proceedings herself.  That is something I must certainly bear in mind in terms of not wasting resources.

11. This case must proceed.  The husband has had many months' notice after many years’ of litigation, and in parting company with his lawyer virtually on the eve of the trial he was assuming an obvious risk of proceeding unrepresented.  This family's life was turned upside down some years ago, and since then these children - whose interests I must take into account as my paramount concern - have lived in the shadow of criminal and family law proceedings in several different courts.  It would be contrary to their best interests, and I would go so far as to say that it would potentially be a travesty for them, for the issue not to be finalised now. 

12. I emphasise that I do not know how I am going to finalise the issue because I have not yet heard the evidence.  But either they and their mother need to adjust to their lifestyles on the basis that they will be seeing their father, or they need to move forward knowing that will not occur.  Either way, they need an answer.

13. The material makes it very clear that an extension to the limbo in which the family has been living would be the most damaging outcome for the children today.  I take into account that the husband may not be released as planned, he may not obtain employment as quickly as he would like, and he may not be able to raise the fees that are needed.  In the meantime, all the money expended on the preparation of today’s up‑to‑date material would be wasted, the mother would have to find that money again, the stressors on her would continue, and that would be contrary to the children's best interests.  So the case is to proceed.  The husband’s application for adjournment is dismissed.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau

Associate: 

Date:  25 February 2008