Webster and Webster (No 2)

[2017] FamCA 557

FAMILY COURT OF AUSTRALIA

WEBSTER & WEBSTER (NO 2) [2017] FamCA 557

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournment application – Where the father sought an adjournment of the upcoming trial – Where the father was in the United Kingdom and did not anticipate returning to Australia – Concluded an adjournment of the trial was of no utility as the father did not say when he ever could or would return to Australia – Leave granted for the father to appear at trial by audio-visual link – Where the father contends he will not be ready for trial and the process will be unfair without the benefit of legal representation – Where the mother is also unrepresented – Concluded the disadvantage to the father is only the same disadvantage suffered by the mother – Ordered father’s application for adjournment is dismissed

Family Law Act 1975 (Cth)

APPLICANT: Ms Webster

RESPONDENT: Mr Webster

INDEPENDENT CHILDREN’S LAWYER: Ms Escobar, Clayhills Escobar Solicitors

FILE NUMBER: SYC 5182 of 2015

DATE DELIVERED: 27 July 2017

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 27 July 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Not Applicable

SOLICITOR FOR THE APPLICANT: Not Applicable

COUNSEL FOR THE RESPONDENT: Not Applicable

SOLICITOR FOR THE RESPONDENT: Not Applicable

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Not Applicable

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Escobar

Orders

1. The father’s oral application to vacate the trial of the parties’ respective applications for parenting orders pursuant to Part VII of the Family Law Act, fixed to commence on 7 September 2017, is dismissed.

2. Leave is granted to the father to appear at the trial by audio-visual link.

1. The time for the parties’ compliance with Orders 4 to 6 inclusive made on 7 June 2017 is extended to Friday, 4 August 2017.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Webster & Webster (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: SYC 5182  of 2015

Ms Webster

Applicant

And

Mr Webster

Respondent

And

Independent Children’s Lawyer

Ex Tempore

REASONS FOR JUDGMENT

1. On 7 June 2017, I made procedural orders between the parties and the Independent Children's Lawyer listing their outstanding applications for parenting orders under Part VII of the Family Law Act 1975 (Cth) (“the Act”) for trial on 7 September 2017.

2. The parties are also in dispute over their property settlement, but their respective applications for orders pursuant to Part VIII of the Act are not yet ready for trial and so they were listed for only further procedural directions on 7 September 2017.

3. At the time the procedural orders were made on 7 June 2017, both parties were self-represented. In accordance with the submissions they then made, directions were made under Part VII, Division 12A of the Act for only the parties to give evidence in their respective cases. As would be obvious, since both parties were then without legal representation and the case was fixed for trial some three months ahead, they must have understood they would be without legal representation at the trial unless they took steps in the meantime to arrange it.

4. Within the last couple of days, emails were sent by the applicant father to my associate implying his perceived need for an adjournment of the trial in September. As a consequence, the matter was urgently re-listed before me to consider the father’s concern and to determine what, if any, further procedural orders needed to be made. The parties appeared today via telephone.

5. The father informed the Court he is currently in the United Kingdom and did not anticipate returning to Australia for the upcoming trial. He asserted he would not do so because he was unable to afford the cost of a return airfare. As was discussed in submissions, that problem can be easily cured by granting him leave to appear at the trial via audio-visual link from the United Kingdom and so such leave was granted to him with the consent of both the mother and the Independent Children's Lawyer. An adjournment of the trial on the basis of his inability to appear in person was of no utility because he did not say when he ever could or would return to Australia.  

6. As it transpired, the father’s principal concern was his ability to be ready for the trial in September. He contended he will not be ready for trial because he remains without legal representation. But, as I have indicated already, he was without legal representation when I made the procedural orders on 7 June 2017 fixing the matter for trial and so he must have foreseen that possibility then. He did not suggest then that the absence of legal representation should preclude the trial dates being fixed. 

7. The father asserted the trial process will be unfair if he is compelled to prosecute his parenting application without the benefit of legal representation.  Whilst I accept it might be advantageous for him to be legally represented, his application cannot be determined in a vacuum. The mother is similarly unrepresented by lawyers and she has lacked such representation for much longer than him. He was legally represented until only a few months ago. 

8. The father alternatively wanted some order made today enabling him to use money held in a controlled money account, owned jointly by the parties, to pay lawyers he would then engage to represent him. I am not prepared to make any order of that sort in circumstances where such an application has not been made on proper notice to the mother or the Independent Children's Lawyer. Presumably, the mother would want to file affidavit evidence in reply explaining her opposition to the father’s proposal for his use of more of the parties’ joint funds for payment of his own legal costs. According to the father’s submissions, he is facing the prospect of bankruptcy in the United Kingdom, which could complicate the parties’ outstanding property settlement dispute enormously, so permitting his unilateral use of joint funds to pay his own legal fees when he may shortly be bankrupted is a vexed question anyway.  

9. In the end, there is no need for the trial of the parenting proceedings to be adjourned. The refusal to vacate the trial dates may mean the father remains self-represented, but the disadvantage of that predicament is no worse than that suffered by the mother. She will not be legally represented either, so the prejudice will be equivalent. Both parties will need to have the trial process explained to them. The mother and Independent Children's Lawyer both reasonably opposed the father’s adjournment application, contending there is no persuasive reason why the parties cannot be ready for the trial. 

10. Although neither party has yet complied completely with the procedural orders made on 7 June 2017, their default is not egregious. There is no reason why they cannot file, within the next week or so, any amended Application or Response and the affidavits upon which they intend to rely. Accordingly, I have made a procedural order extending the time for compliance with those orders until Friday of next week. The father has the same ability as the mother to do so. Although he is in the United Kingdom, he may file the documents electronically through the Court’s portal. 

11. The family report, dated 19 May 2017, is available to the parties. If the trial was adjourned, it is unlikely fresh trial dates would be available for several months, by which time there is a risk some of the evidence of the family consultant would be stale and an update report would be needed. The Court should avoid that consequence if possible. Although the father apparently disagrees with the opinions expressed in the family report, the family consultant will be available for his cross-examination at trial.

12. The Independent Children's Lawyer informed the Court she believed the children were stressed by the ongoing litigation, which is a consideration of some significance. These proceedings were commenced by the mother nearly two years ago, in August 2015, and have already endured many interlocutory events. In fact, interim orders have been made on nearly 10 occasions over the life of the litigation. Clearly, there is a need for at least the parenting dispute to be finalised as soon as possible.

13. In his submissions in reply to those made by the mother and the Independent Children's Lawyer, the father asserted the Independent Children's Lawyer was aggressive, dismissive and rude, and he sought her discharge by reason of her alleged lack of impartiality. Although that may represent the father’s genuine belief about the Independent Children's Lawyer’s disposition, there is no evidence to objectively vindicate his belief or his submission. Quite apart from the procedural unfairness of expecting the Independent Children's Lawyer and the mother to meet such an allegation or application without prior notice, the father needs to understand that just because the Independent Children's Lawyer may hold a different view from him about the outcome of the parenting proceedings does not necessarily mean she is biased against him. 

14. If the father wishes to make a proper application to disqualify the Independent Children’s Lawyer, he is entitled to do so, but it must be founded on evidence filed and served on the Independent Children's Lawyer and the mother in a timely way, giving them sufficient time within which to respond. I am not prepared to entertain his oral application for the discharge of the Independent Children's Lawyer in such circumstances. 

15. For those reasons, the father’s oral application to vacate the parenting trial is dismissed and some ancillary procedural orders will be made to enable the parties to retain the existing trial, commencing on 7 September. Those orders will allow the father to attend the trial by audio-visual link from the United Kingdom, to avoid the need for him to have to travel back to Australia, if that is his desire, and to permit the parties an extra week or so within which to file the documents upon which they will rely at trial. 

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 27 July 2017.

Associate: 

Date:  3 August 2017