Zotkiewicz and Commissioner of Police
[2011] FamCAFC 104
•13 April 2011
FAMILY COURT OF AUSTRALIA
| ZOTKIEWICZ & COMMISSIONER OF POLICE | [2011] FamCAFC 104 |
| FAMILY LAW - APPEAL – CHILDREN – Hague Convention – Application for an adjournment – Where the appellant mother is self-represented and where English is not her first language – Where Legal Aid filed a Notice of Ceasing to Act – Where the mother can seek to review the decision of Legal Aid – Where the mother did not feel able to represent herself – Where counsel for the Commissioner of Police opposed the application for the adjournment and highlighted the need for Hague Convention cases to be heard and determined expeditiously – Where concern was expressed about the absence of an Independent Children’s Lawyer – Application dismissed. |
| Family Law Act 1975 (Cth) |
| De L and Director-General NSW Department of Community (1996) FLC 92-706 |
| APPELLANT: | Ms Zotkiewicz |
| RESPONDENT: | Karl Joseph O'Callaghan, Commissioner of Police |
| FILE NUMBER: | PTW | 1930 | of | 2010 |
| APPEAL NUMBER: | WA | 7 | of | 2011 |
| DATE DELIVERED: | 13 April 2011 |
| PLACE DELIVERED: | Perth |
| PLACE HEARD: | Perth |
| JUDGMENT OF: | May, Thackray & Moncrieff JJ |
| HEARING DATE: | 13 April 2011 |
| LOWER COURT JURISDICTION: | Family Court of Western Australia |
| LOWER COURT JUDGMENT DATE: | 27 January 2011 |
| LOWER COURT MNC: | [2011] FCWA 5 |
REPRESENTATION
| SOLICITOR FOR THE APPELLANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Ms Thatcher |
| SOLICITOR FOR THE RESPONDENT: | State Solicitor's Office |
Orders
The application for an adjournment be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Zotkiewicz & Commissioner of Police is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT PERTH |
Appeal Number: WA 7 of 2011
File Number: PTW 1930 of 2010
| Ms Zotkiewicz |
Appellant
And
| Karl Joseph O'Callaghan, Commissioner of Police |
Respondent
EX TEMPORE
REASONS FOR JUDGMENT
May J
The mother in these proceedings, who is the appellant, appears for herself. This is an appeal filed on 14 February 2011 against orders of Crooks J, made 4 February 2011 requiring N Zotkiewicz, a child, to be returned to Poland.
The terms of the order made by Crooks J on 4 February 2011 are not unimportant. They are that the child be returned to Poland in the company of the child’s father, departing Perth on a date that was then nominated to be 16 February 2011. I understand that there has since been a stay of that order.
English is not the mother’s first language, and she has here in court the assistance of an interpreter. We were concerned about the mother’s ability to represent herself, especially as she has had Legal Aid in the past.
On 21 March 2010, Legal Aid Western Australia filed a notice of ceasing to act. Our inquiries reveal that the mother has not yet sought to review this decision but could do so. We were informed that such review application could possibly be heard on Tuesday of next week.
It must be said that the mother did not at first apply for an adjournment herself, but after the inquiries to which I have referred and various things said by us, she did seek an adjournment, saying that she did not feel able to represent herself.
As mentioned, her difficulties are twofold. First, that she is a litigant in person, and secondly, the difficulties she has with the English language.
Understandably, counsel who appears for the Commissioner of Police, Ms Thatcher, said that she formally opposed the adjournment. She correctly highlighted the need for such cases to be heard and determined expeditiously.
In addition, she noted that the appellant had for some time been aware that Legal Aid would no longer act for her and she had taken no further action in that respect. Secondly, that some of the matters which we raised, rather than directly raised by the mother herself, might have been properly considered by counsel who appeared for her at the trial and could have been properly rejected by him as arguments not available.
That is always the case, as I observed during argument, especially an Appeal Court needs to be very careful about making assumptions. In addition, it was put quite strongly that the time for some of the issues now being asserted by the mother have past.
In my view, this is really a very difficult matter generally. It is difficult to expect the mother to appear for herself, for the reasons that I have referred to already. However, I am extremely mindful that this is an appeal in relation to what is generally described as a Hague matter.
On balance, it is my view that, at least for the moment, the application for the adjournment should not be allowed, even for the short period which we have contemplated, the appeal could have possibly have been heard on 17 June 2011.
It may be that having heard the submissions, especially the further submissions of the mother, in addition to the submissions we have from her in writing, that we would be of the view that a further opportunity should be given to her to apply for a review of the refusal to allow her to have aid, or even to allow her to file some further submissions. But the need to have this matter heard is compelling, and it seems, at least to me, that if at all possible the appeal should be heard by us today.
I would therefore not allow the application for the adjournment.
Thackray J
I agree with the reasons given by the presiding judge, and would also not allow the adjournment, but I stress, as the presiding judge has, that this decision is only for the moment.
I have grave concerns about the appellant’s ability to represent herself in these proceedings today. Given the absence of representation of the appellant, I also have some concerns about the absence of an independent children’s lawyer. Noting that Legal Aid has indicated there is a probability that such a lawyer would be made available in the event that a request was made. I also note that in De L and Director-General NSW Department of Community (1996) FLC 92-706, the majority of the High Court referred to circumstances in which it is appropriate, even in Hague Convention matters, for there to be an independent children's lawyer.
However, the submissions made by Ms Thatcher on behalf of the respondent were appropriate. She has properly drawn attention to the vital importance of Australia complying with its obligations under the Hague Convention in giving prompt attention to these matters.
That said, this Full Court has given prompt attention to this matter. The appeal has been listed about two months after it was filed. In the event that we see fit, at a later stage, to adjourn the matter, the adjournment would only be for a couple of months, and that would in itself still result in a prompt consideration of this appeal.
Accordingly, for the reasons that have been given by the presiding judge, I would, for the moment, refuse the application for an adjournment.
Moncrieff J
I have nothing to add to the reasons given by the presiding judge and Thackray J, and I agree.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (May, Thackray & Moncrieff JJ) delivered on 13 April 2011.
Associate:
Date: 11 May 2011
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