Chimin v Fiato: How Delays Can Affect the Outcome of Proceedings
Chimin v Fiato was a parenting matter decided by the Family Court at Brisbane in 2021. The father made the application as the mother was resisting his request to spend time with the child, who was then aged three. The mother alleged the child was at risk of sexual abuse, in particular female genital mutilation. Apart from the substantive issues to be dealt with, the matter had some unusual features. The way the matter progressed illustrates the effect that significant delays in a parenting matter can have on the final outcome.
Delays due to COVID and changes of representation
A case expected to run three days was spread over 16 days between February 2019 and August 2020 with a decision in February 2021. The delays were first caused by the mother’s change of counsel after Day 1 but also affected by changing pandemic arrangements and some attempts to accommodate the three barristers involved. By the end of the hearing, the mother had engaged an additional three barristers.
Delays due to death of lawyer
Counsel for the mother sought an adjournment on Day 2 due to hearing of the death of another practitioner overnight. The following day, she again attended court represented by senior counsel to extend the adjournment. It was granted until 27 February 2021. The father resisted any adjournment due to the length of time that had passed since he had spent any time with the child. New counsel appeared on 27 February.
As a result of the adjournment, the father sought compensation for costs from the public purse. Day 1 had been taken up with his cross-examination.
Further delays due to matter being reopened
Shortly prior to 15 December 2019, the parties were notified that judgment would be given on that date. However, there was no request to bring the child to the Registry (signalling that there would be no change of residence).
Prior to 15 December the judgment date was moved to 15 January with an order that the child be brought to the Registry. Once a change of residence was signalled, the mother brought a series of applications to reopen the matter between January and February 2020. Ultimately it was agreed that the matter reopens on limited issues arising from the mother’s fresh evidence in August 2020.
Financial situation of parties
The father was of very modest means and dependent upon credit being afforded him by his solicitors. The mother obtained Legal Aid for the original hearing but for the reopening had counsel (including senior counsel at times). She had clearly experienced a change of fortune in the intervening period.
Father Obtains Costs Certificate
The father sought a costs certificate under section 10(3) of the Federal Proceedings (Costs) Act 1981 (Cth), thereby requesting the Attorney-General to pay his costs of 19 and 20 February 2019. Her Honour exercised her discretion to grant this.
The section applies where a hearing is discontinued and a new one ordered and this is not due to the neglect, default or improper act of a party. Although Day 1 occurred on 18 February and Day 2 on 27 February (noting the adjournment/costs applications were made on 19 and 20 February) it was analogous to a new hearing. It could only “continue” on 27 February because of the parties’ willingness to resume with the benefit of new counsel having the transcript of the father’s evidence from Day 1 and the opportunity to further cross-examine him.
When the judgment in Chimin v Fiato was to be delivered there was no requirement of attendance or for the child to be brought to court. Despite Her Honour preferring the evidence of the father to that of the mother and finding no evidence of risk she ordered that the child remain in the primary care of the mother and spend three weekends out of four with the father.
The father was also given liberty to apply on 48 hours’ notice in the event the child was not made available to him. The parties were also ordered to share long term responsibility for the child, despite the fact that the father had been financially distressed by the case and had had to defend himself against allegations of sexual abuse over several years.
It is noteworthy that the mother took the child to various medical practitioners in her quest to obtain evidence. Further the father’s weekend contact would require him to spend a couple of hours travelling either way as the mother lived in a country town.
The dilemma for Her Honour was that the child’s primary connection was to her mother and she was doing well at school. To remove her from that environment to one where the father had had limited time with her would be traumatic for her. In summary, Her Honour made the orders which gave optimal assistance to the father without changing the child’s residence. The reality is that the delay between application and judgment had a direct effect on the mother’s claim to primary care.
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