Williams and Anor and Rogers and Anor

[2015] FamCA 181

FAMILY COURT OF AUSTRALIA

WILLIAMS AND ANOR & ROGERS AND ANOR [2015] FamCA 181

FAMILY LAW – PRACTICE AND PROCEDURE – Application for an adjournment for final hearing by the mother – where if the matter were to proceed the mother would be self-represented – where there are complex and significant matters involving children –  where these complex matters require careful consideration – where the mother would be at a disadvantage – where the mother is to make a further application for a grant of Legal Aid – where if the adjournment is not granted further proceedings may be instituted due to a change in circumstance – best interests of the children – adjournment granted

APPLICANTS: Ms Williams
Mr Williams

FIRST RESPONDENT: Ms Rogers

SECOND RESPONDENT: Mr Nixon

INDEPENDENT CHILDREN’S LAWYER: Adams & Partners Lawyers

FILE NUMBER: PAC 2604 of 2013

DATE DELIVERED: 16 March 2015

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 16 March 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Siggins

SOLICITOR FOR THE APPLICANT: C A Williams Legal

SOLICITOR FOR THE FIRST RESPONDENT: Mr Maitz of Stephan Maitz & Associates

SECOND RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

No appearance

Mr Cook

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Ng of Adams & Partners Lawyers

Orders

1. The hearing dates of 16, 17, 18 and 19 March 2015 are vacated.

2. The matter is to be listed for a four (4) day hearing on a date to be fixed.

3. Leave is granted to the parties to approach the List Clerk for the allocation of trial dates when appropriate.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Williams and Anor & Rogers and Anor 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 PARRAMATTA

FILE NUMBER: PAC 2604 of 2013

Ms Williams and Mr Williams

Applicants

And

Ms Rogers

First Respondent

And

Mr Nixon

Second Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. This is an application for an adjournment of parenting proceedings which had been fixed for four days to commence today in respect of two young children, V who is four years old and R who is almost three years old (“the children”).  The children have for some time been living with their paternal grandmother and paternal step-grandfather, pursuant to interim orders following a contested interim hearing before Foster J in February 2014.

2. There are complex and significant matters involving these children both in terms of their own particular needs and the capacity of each of the parents and the applicants to meet those needs having regard to their own particular histories.

3. This is a matter where there is no doubt that for the sake of these children it would be best dealt with in a final hearing where the applicants have the fullest benefit of competent legal representation and that they are in a position to put all of the relevant material before the Court. There seems to be a fairly voluminous amount of material, having regard to the particular histories of the parents and the applicants.

4. The mother, in my view, appears has really done nothing to assist her own case in terms of getting it before the Court.  She has not complied with the directions about the filing of affidavits.  She was aware from late last year, some months ago, that she had been refused a grant of Legal Aid and yet her lawyer today on his own admission has not been in a position to prepare the case.

5. The result, if the adjournment she seeks were not granted would be that the mother would be representing herself.  She would be at a considerable disadvantage but more importantly the children would be at a considerable disadvantage in terms of having the complex issues in this case properly examined if she were to represent herself.  For example, a highly relevant matter is that the mother has a new partner, with whom she is 35 weeks pregnant, and he has not put on any affidavit.  In fact, the identity of the partner is unclear and the Family Consultant did not assess this person because it would appear he was not aware of his existence at the time of writing the Report.  This is just an example of one of the many matters that along with the mother representing herself and having failed to comply with the Court directions means that the matter really would not be able to be properly examined.  Or it would be examined on material that almost immediately would cause the institution of further proceedings with an argument that there has been a change in circumstances as soon as her next child is born, in a matter of weeks.

6. In my view, it really would be to the advantage of these children to have this matter determined.  I have read one Family Report and I accept it is untested.  I think that it would certainly be uncontroversial that it is important for these children, given their disrupted lives to date, to have the maximum amount of stability in having their futures determined as soon as possible, which is also something that would be to their benefit.  That tends to suggest that the matter should go ahead.   The paternal grandmother and the paternal step-grandfather are in a position to proceed, but in the circumstances there is a tension between these particular two matters.

7. The Independent Children’s Lawyer supports the matter being adjourned and has foreshadowed that there may be in the circumstances a reconsideration of the interim orders in the best interests of these children. For those reasons simply because I don’t think that the matter would have the attention given to it that it deserves, particularly with the complex circumstances for these children if the matter were to go ahead, having been inadequately prepared and in those circumstances the adjournment is granted.

8. The order of the Court is that the hearing to commence today for four days is vacated to a date to be fixed and allocated by the list clerk.

9. I can indicate that I will be making further orders about the preparation of the matter for trial either on a further directions date or today depending upon any further applications that may be made.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 16 March 2015.

Legal Associate: 

Date:  18 March 2015.