Garratt and Aiken & Anor

[2019] FamCA 398

FAMILY COURT OF AUSTRALIA

GARRATT & AIKEN AND ANOR [2019] FamCA 398

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournment application – Consideration of the history of the litigation – Whether the proceedings should be further delayed – Best interests of the child – Where current orders in place protecting the child much in line with the final orders as sought by the mother – Where the applicant paternal grandmother and respondent father have been let down by their previous solicitor – Where consideration of prejudice to mother and other sides if application granted or dismissed – Application granted.

Family Law Rules 2004 (Cth) r 15.06

APPLICANT: Ms Garratt

FIRST RESPONDENT: Ms Aiken

SECOND RESPONDENT: Mr C Garratt

INDEPENDENT CHILDREN’S LAWYER: Ms Morton

FILE NUMBER: PAC 3816 of 2016

DATE DELIVERED: 4 June 2019

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 4 June 2019

REPRESENTATION

APPLICANT – SELF-REPRESENTED LITIGANT: Ms Garratt in person

SOLICITOR FOR THE FIRST RESPONDENT: Ms Campbell of Bowral Legal

SECOND RESPONDENT – SELF‑REPRESENTED LITIGANT: Mr C Garratt in person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Breeze

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Morton Family Lawyers

Orders

1. The trial dates allocated for this matter of 4 and 5 June 2019 be vacated.

2. The proceedings be listed in the judicial case management list at 9.30am on Monday, 22 July 2019.

3. The Applicant paternal grandmother and the Second Respondent father file and serve respectively an Amended Application and Amended Response by no later than Thursday, 18 July 2019 setting out with particularity final orders sought by each of them in respect of the subject child.

4. The Applicant paternal grandmother and Second Respondent father each file and serve one consolidated affidavit of their evidence in chief and one affidavit from each of the witnesses upon which they rely in support of the orders sought by them with such affidavits to be in compliance with rules 15.08 and 15.09 of the Family Law Rules 2004 (Cth), by no later than Thursday, 18 July 2019.

5. The Applicant paternal grandmother and Second Respondent father each file and serve an Outline of Case document by no later than Thursday, 18 July 2019 setting out:

   (a)      A precise Minute of Orders sought;

   (b)      A list of documents to be read in their case;

   (c)A brief summary of argument touching upon the matters set out in s 60CC of the Act with reference to the relevant evidence relied upon;

   (d)      A list of authorities to be relied upon.

6. In default of the Applicant paternal grandmother and/or Second Respondent father failing to comply with any of the orders made above, then their Application and/or Response shall be struck out and dismissed to the effect that they are no longer parties to these proceedings.

7. The costs of the Independent Children’s Lawyer thrown away by reason of the adjournment being costs of today and the other vacated hearing dates be reserved.

8. The costs of the mother thrown away by reason of the adjournment being costs of today and the other vacated hearing dates be reserved.

9. The Independent Children’s Lawyer file and serve short written submissions as to costs thrown away by no later than Thursday, 18 July 2019.

10. The First Respondent mother file and serve short written submissions as to costs thrown away by no later than Thursday, 18 July 2019.

11. Leave is granted to the Independent Children’s Lawyer to re-list the matter on short notice by application to the Court in Chambers in appropriate circumstances.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Garratt & Aiken has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 3816 of 2016

Ms Garratt

Applicant

And

Ms Aiken

First Respondent

And

Mr C Garratt

Second Respondent

REASONS FOR JUDGMENT

1. These are parenting proceedings involving the child X, born in 2011.  The child is now seven and a half years of age and continues to reside with the respondent mother.

2. These proceedings have been ongoing since 16 August 2016 when the applicant paternal grandmother commenced proceedings seeking time with the subject child.  Otherwise, the respondents to the present proceedings are the mother and the child’s father.

3. The proceedings have had an inglorious history before the Federal Circuit Court of Australia until such time as they were unceremoniously transferred to this Court after some two years in the Federal Circuit Court, with that transfer occurring on 3 April 2018.  The inordinate delay in transferring the proceedings from the Federal Circuit Court to this Court could not possibly have been in the interests of the child, then of much more tender years.

4. The proceedings came before me as the prospective trial judge on 20 August 2018.  On that day, by consent and without admission, various orders were made providing for the child to spend no time with the father or paternal grandmother and for there to be protective injunctions relating to any attempted contact between them and the child and/or the mother.  In addition, on that day, the Court made trial directions for the matter to proceed to final hearing.  It is noted that those trial directions were made only a matter of some four months after the proceedings were transferred to this Court.  The trial directions provided that the parties were to file any Amended Application or Response to be relied upon by 21 September 2018 and consolidated affidavits of their evidence in chief and affidavits of witnesses by no later than 16 November 2018. 

5. It is common ground that when the proceedings were listed for compliance before a compliance registrar on 22 November 2018, proceedings were not ready for allocation of trial dates, as the mother had not as yet filed her trial documents but they were available for filing on the morning of the compliance listing.  The father and the paternal grandmother were granted an indulgence by the compliance listing registrar and the time for them to file their documents, including amended pleadings and affidavits, was extended for a period of 14 days from 22 November 2018.  The compliance listing was adjourned to 20 December 2018. On 22 November 2018, Ms B, solicitor, appeared on behalf of the paternal grandmother and the second respondent father at the compliance listing. 

6. Proceedings came before a compliance registrar again on 20 December 2018.  Ms B again, it appears, appeared for the father, although the applicant paternal grandmother on that date informed the registrar that she appeared on her own behalf notwithstanding Ms B had not filed a Notice of Ceasing to Act. At the registrar’s listing on 20 December 2018, Ms B and the paternal grandmother sought to inform the registrar that they would rely upon affidavits previously filed by them in December 2018 in the context of an Application in a Case filed by the paternal grandmother on 19 December 2018. 

7. It is trite to say that the provisions of the rules - that is, Rule 15.06 of the Family Law Rules 2004 – prohibits affidavits being relied upon, other than in respect to the application which they were filed. The registrar informed the paternal grandmother and Ms B of that circumstance. On the same day, the paternal grandmother’s Application in a Case filed on 19 December 2018 was withdrawn and accordingly dismissed. No application has been made before this Court for the paternal grandmother and the respondent father to rely upon the discrete affidavits filed by them in the context of the grandmother’s Application in a Case, and in any event, it is readily apparent that no such leave would be granted by this Court bearing in mind that the affidavits, should they be sought to be relied upon, do not address issues more appropriate for consideration by the Court on a final hearing in relation to the welfare and best interests of the subject child.

8. Proceedings have come on for hearing today, 4 June 2019, with two days allocated for hearing. 

9. The circumstance the Court finds itself in this morning is that Ms B is not available to attend.  She has informed the father that she is unwell and that she may or may not, depending on her health, be able to attend before the Court tomorrow, 5 June 2019.  The father, for good reason, now seeks to instruct a different solicitor to represent him, as does the paternal grandmother. 

10. In circumstances where there are current orders in place protecting the child much in line with the final orders as sought by the mother in any event in these proceedings and in circumstances where, as it were, the applicant paternal grandmother and respondent father have been let down by their previous solicitor in that trial directions have not been complied with, in that there has been no affidavit evidence and outline of case filed on their behalf. It appears that their solicitor failed to give notice to the report writer being required for cross-examination, it is appropriate, on fairly stringent terms, to permit and allow the application for adjournment. 

11. In such a circumstance, the Court will facilitate the matter being listed before it in the judicial case management list in July.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 4 June 2019.

Associate: 

Date:  4 June 2019