WILSHAW & WILSHAW

[2015] FamCA 339

FAMILY COURT OF AUSTRALIA

WILSHAW & WILSHAW [2015] FamCA 339

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournment – Matter was expedited – Where the father wanted more time to obtain legal representation – Where a critical issue is the relationship between the children and the father – Where the best interests of the children would be not to delay the proceedings further

Family Law Act 1975 (Cth)

APPLICANT: Mr Wilshaw

RESPONDENT: Ms Wilshaw

INDEPENDENT CHILDREN’S LAWYER: Cathy-Anne Grew

FILE NUMBER: PAC 3218 of 2013

DATE DELIVERED: 27 April 2015

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 27 April 2015

REPRESENTATION

APPLICANT – LITIGANT IN PERSON: Mr Wilshaw

COUNSEL FOR THE RESPONDENT: Mr Friedlander

SOLICITOR FOR THE RESPONDENT: Catalyst Family Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Cathy-Anne Grew, Matthews Folbigg Pty Ltd

Orders

1. The Applicant father’s and husband’s application for an adjournment is dismissed.

2. The hearing dates of the 27, 28, 29 and 30 April 2015 and 1 May 2015 are confirmed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Wilshaw & Wilshaw 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 3218 of 2013

Mr Wilshaw

Applicant

And

Ms Wilshaw

Respondent

REASONS FOR JUDGMENT

1. This is an application made by a father and husband in property and parenting proceedings which has been listed for five days to commence today.

2. It is a matter where the property interests, and of great importance the position in relation to the parenting, of three of the parties’ four children, has been unclear for almost five years.  When I say unclear, the mother has remained in occupation with the children in the former matrimonial home and it is fair to say that over the time the relationship with all of the children including the three that are under the age of 18 has significantly deteriorated between those children and their father.  It is around two years since he has seen two of the children who are under the age of 18, perhaps longer, and that so far as the youngest child is concerned she is eight years of age and two years is certainly a lengthy period of time within an eight year lifetime to have not seen her father.

3. There is no dispute, as I understand the positions of the parties, that it is in the interests of the children to have a relationship with both of their parents, but that the relationship between the children and the father is so fractured that family therapy is required and a lot of work is required for that relationship to be re-built.

4. There are other concerns (and, at this stage I certainly do not attribute any cause to them because this is very much a matter of dispute) about the mental health of each of the children.

5. There are, for this reason, compelling reasons why this matter should be resolved considering that the only significant item of property is the former matrimonial home and that the most significant issue in relation to parenting of the children is the issue of their relationship with their father.

6. The father based his application to vacate the hearing today on the ground that he has not been able to prepare his case properly because he has not been able to get proper legal representation.  He understands his position to be that the reason that his lawyers have ceased to act is because he was unable to provide them with a copy of his sealed affidavit filed in the proceedings in time to for them to instruct counsel on his behalf.

7. Previously the father had understood that in applying for the matter to be vacated it simply could be heard again in another month’s time and that would be sufficient time for him to instruct alternative lawyers and have counsel appear on his behalf.  However, after he was informed that it would be a matter of some months before another hearing date would be allocated if it was adjourned, he still persisted with the application on that as the only basis.

8. This is a matter that has been quite closely case managed and there have been numerous occasions where it has been mentioned before me and it has been made clear to the father that in circumstances where he sought expedition and where expedition was indicated especially due to the impact of the children not seeing him has had on their relationship with him, that unless something extraordinary happened, that this matter would proceed today.

9. The father was able to prepare his trial affidavit without the assistance of a lawyer and essentially puts the case for his adjournment today on the basis that he has received advice that he could have improved the chances of success of his own case if he had the benefit of a lawyer.  In circumstances where it is certainly not clear that even if he were given the opportunity to engage another lawyer, that the position would be any different in a few months’ time, I have to balance his desire to obtain legal representation with the other factors which would suggest that the matter should go ahead today.

10. In relation to the parenting matters, so far as the primary consideration of children’s best interests is concerned, this is a matter where the issue of the relationship with the father as I have said is of critical importance.  While the father does not seem to understand it, the granting of an adjournment for a number of months will only have the impact that that will be more months that the children do not spend any time with their father.  At this stage, particularly for Anna given her age, it seems that unless family therapy commences as soon as possible that the relationship may reach the stage that it has deteriorated beyond repair.  In other words, the further adjournment of the proceedings in circumstances where family therapy has still not been resolved, is likely to resolve in a further deterioration of that relationship.

11. The ongoing instability that has been created by the proceedings not being resolved both in terms of the security of the mother’s accommodation and the ongoing issues concerning the children and their relationship with their father itself, seems to be a further factor, that is, to the detriment of the children.

12. As I have previously indicated, if the matter commences at least today there is still no reason why proceedings cannot be adjourned for the family therapy to be resolved if that is still felt Dr B’s opinion to be the way to proceed, but in the circumstances of today where that issue still remains unresolved it appears to me that it is in the best interests of the children for the matter to proceed.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 27 April 2015.

Associate:

Date:   11 May 2015