Legal representation is a privilege not a right

Legal representation is a privilege not a right – adjournment refused

Calder & Andrews [2016] FamCA 54 (27 January 2016)

The following is annotated. For full case:

  1. Today is the return date of proceedings in which the father is the applicant and the mother is the respondent. This case has limped along for a number of years now since consent orders were made. It is clear from reading the family report and the report of Dr F, that these children need a resolution one way or the other.
  2. At the commencement of the proceedings this morning the mother has applied for an adjournment of the proceedings to get legal advice. Normally one would hesitate about refusing an adjournment application of that nature, because it is important that any proceedings are conducted on the basis that people understand the process. Here the application to get legal advice is more about what position to adopt as a result of the expert evidence. It seems to me that that is the issue that the mother could deal with more appropriately by cross-examination.
  3. The mother says that she wants to get legal advice prior to cross-examination. I am not entirely sure why that would be necessary. Legal representation in every court in Australia is a privilege, not a right, and there are many people in this community who have to proceed on the basis that they have to do the best they can, obviously with the assistance of the Court.
  4. Here the possibility of an adjournment would have consequences for the children. The mother does not seek to alter the existing regime that she has with the children, who are now in a stable environment with their father. I am prepared to allow the mother to seek some advice from the duty lawyer, notwithstanding her preference is to have her lawyer in the community. I have no understanding of what the need is to get that advice, particularly bearing in mind that the report has been in her hands for over a week and everybody seems to have read it.
  5. This is a case which needs a resolution. These children have the right to have their life organised in the future. I agree with the submission of the Independent Children’s Lawyer that the statements made by the report writer are not new, and it would seem almost as if they were anticipated. On that basis, an adjournment would not achieve anything. I am prepared to stand the matter down for the mother to speak to the duty lawyer about what position to adopt, but otherwise I consider that it is in the best interests of these children that this trial proceed, clumsy though it may have to be.
  6. The application for the adjournment is refused.


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