Finality is good but justice is better

Geisler [2018] FCCA 3959 (delivered on 10 December 2018, but published 5 March 2019)

In a very interesting case, the Court granted an adjournment of the trial for twelve (12) months in order to permit assessment of children’s time with the father away from “artificial environment” of contact centre.

Both of the parents of children who are 7 and 4 years of age (supported by the independent children’s lawyer) applied to the Court to adjourn a two-day trial and make interim, instead of final parenting orders, despite the fact that the case had been before the Court for three (3) years. 

The father had only recently begun spending time with the children without supervision after a period of two years of supervision at a contact centre. All parties sought further time to allow for an unsupervised arrangement to be assessed over time.

Except for two unsupervised contact visits (of a few hours) prior to trial, the father’s time had been supervised at a contact centre, due to his alcohol abuse. All parties sought that the trial not proceed, but that interim orders be made by consent by which the father’s unsupervised time with the children would be increased gradually and the case listed for further directions in 12 months’ time.

The Court acknowledged that the father had made enormous strides towards dealing with his conceded alcohol addiction as well as noting the damage to the relationship between the parents and most importantly, the damage to the children’s relationship with their father as a consequence the father’s descent into that addiction.

The Court had to balance the position of utility and finality against the position advanced by the parties and the independent children’s lawyer. Namely, a cautious approach of developing a staged introduction of unsupervised time between these children and the father and then reviewing arrangements or the conclusion of the proceedings straightaway based on the presently available evidence. 

The principle of finality is well known within civil litigation. A court should hear and determine a cause of action and, once determined, the matter should not return without good reason. The family law jurisdiction has recognised the importance of finality as a manifestation of the best interest’s principle, in the line of cases commencing with the well-known case of Rice & Asplund [1978] FamCA 84.

Upon consideration, the Court ultimately decided that orders can and should be made on an interim basis, as agitated by the parties and the independent children’s lawyer. 

In making the decision the Court noted its reservations including its role as a tribunal of fact (to hear and determine judiciable controversy between parties), not to case manage or to manage and oversee arrangements between parties. 

The Court went on to note the stresses of ongoing litigation (to have a court case hanging over one’s head for in excess of three years – by the time they return more than four years)  is a significant impost. It distracts the parties from their role as parents. It intrudes into their lives. It potentially diminishes their enjoyment of life and of their children’s childhoods.

The Court addressed it’s reservations with making the sought orders with respect to the principle of finality. Noting that it has an important place in the management of litigation. 

However, the Court in the end decided that finality is good but justice is better, noting that justice is not achieved by dealing with matters quickly. Justice is achieved by dealing with matters in a timely fashion. Timeliness involves dealing with a case in the time and using the time necessary to do justice. In a parenting case justice is fundamentally founded in the best interests of children.

The Court was satisfied, that in this particular instance perhaps one of the rare exceptions to the civil doctrine of finality, that the case should be prolonged, not through a desire to actively manage the affairs of these parties but to give some comfort and reassurance, particularly to a somewhat vulnerable mother, predisposed to anxiety, regarding the very steps that are now to be taken, and to provide some support and reassurance to the father that, whilst this case is on foot, the Court will be supportive of his relationship but also vigilant as to ensuring the children’s safety.

Two hours a fortnight at a contact centre is not meaningful involvement. For some children, it is the only involvement or the only safe involvement that can be achieved. However, the Court recognised that there is an alternative for these particular children of some delay permitting a better and more fulsome assessment of what might ultimately be in their best interests. 

The Court made it clear that the change in this case is the potential redemption of the father, his continued hard work to deal with his medical issue of addiction, to remain alcohol free and to be the best parent he can be for these children. The Court went on to say that these children should not, with such change possible, be denied the opportunity of experiencing their father away from the contact centre.

The Court concluded that justice for these children is fundamental to assessing their best interests. Those best interests, as set out in the Act require that they have every available opportunity to experience, safely and in slow steps, a movement towards what could be described as a more regular relationship with both of their parents – certainly, the potential to experience their father as sober and away from a contact centre – so that they can be part of his life and he part of theirs and, at the same time, ensuring that the mother is scaffolded through the support and assistance of her legal representatives, the independent children’s lawyer and the Court.

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