Allwright & Allwright
[2025] FedCFamC1F 243
•7 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Allwright & Allwright [2025] FedCFamC1F 243
File number(s): CAC 89 of 2022 Judgment of: CURRAN J Date of judgment: 7 February 2025 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Adjournment – Where the father seeks an adjournment one week before final hearing – Where the Independent Children’s Lawyer opposes adjournment – Where the mother is neutral to adjournment – Consideration of Aon Risk Services v ANU – Consideration of ss 69ZN and 102NA of the Family Law Act – Consideration of the prejudice to the parties and the children of delaying proceedings – Where adjournment application is granted. Legislation: Family Law Act 1975 (Cth), ss 102NA, 69ZN
Federal Circuit and Family Court of Australia Act 2021 (Cth), s 57
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), r 5.08
Cases cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Allwright & Allwright (No 4) [2024] FedCFamC1F 587
Re F: Litigants in Person Guidelines (2001) FLC ¶93-072
Zan & Wen (No 2) (2023) FLC 94-153
Division: Division 1 First Instance Number of paragraphs: 53 Date of hearing: 7 February 2025 Place: Sydney Solicitor for the Applicant: Simonidis Steel Lawyers Counsel for the Respondent: Ms Chauvet Solicitor for the Respondent Blomfield Legal Solicitor for the Independent Children's Lawyer: Mr Squires of Legal Aid NSW ORDERS
CAC 89 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR ALLWRIGHT
Applicant
AND: MS ALLWRIGHT
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CURRAN J
DATE OF ORDER:
7 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The trial dates of 11 to 14 February 2025 inclusive be vacated.
2.The matter be adjourned to 28 April 2025 at 10.00am for final hearing (part heard).
3.Not later than 4.00pm on 14 April 2025, the parties are to email a trial plan.
4.Pursuant to r 3.10 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, Simonidis Steel Lawyers are granted leave to cease to act.
5.A transcript of proceedings from 20 to 24 January 2025 will be made available, if requested, for the legal representatives of the parties to inspect.
6.The Application in a Proceeding filed 31 January 2025 be listed for interim hearing on 11 February 2025 at 11.30am by Microsoft Teams.
7.The Independent Children’s Lawyer is to advise the Court Child Expert of the adjourned dates and that she will be required to give evidence, which is likely to be Monday 6 May 2025.
THE COURT NOTES THAT:
A.The matter has been listed to resume the final hearing on 28 April 2025. The parties have indicated that they anticipate the matter will require a further 7 days of hearing. The matter is to continue until the conclusion of the final hearing. The parties are to provide a trial plan pursuant to the orders herein, and the parties will be required to adhere to the time frames as set out in the trial plan.
B.The Application in a Proceeding filed on 20 January 2022 will be dismissed on the next occasion, being 11 February 2025, in the absence of any submissions as to why this should not occur.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Allwright & Allwright has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTCURRAN J:
These reasons for judgment were delivered orally and have been corrected from the transcript.
The respondent father, Mr Allwright, filed an urgent Application in a Proceeding on 4 February 2025 seeking to vacate the final hearing dates which are listed in part from 11 February 2025 until 14 February 2025 inclusive, and continuing on 28 April 2025.
BACKGROUND
These proceedings were listed for a five-day final hearing commencing on 20 January 2025 in the Canberra registry.
During the five days, the mother was cross examined by counsel for the father on the second, third and fourth days of the proceedings. The mother was also cross examined by counsel for the Independent Children’s Lawyer (“ICL”) on the afternoon of the fourth and the fifth day. Her cross examination has concluded but she is yet to be re-examined.
The parties had advised Judicial Registrar Hiles at the time it was listed of an estimate of five days for the trial. Just prior to the trial commencing, the parties had filed a trial plan which also contained the estimate of the five days for trial. That estimate was well off the mark given the significant matters in dispute both in property and in respect of competing serious allegations of risk that each parent contended against the other.
On 24 January 2025, I made orders for the matter to be listed for a continuation of the final hearing, part heard, from 11 to 14 February 2025, being the next available dates in my diary which had become available due to a settlement of another matter, and they were also convenient dates for the respective parties’ counsel. The matter was to continue on 28 April 2025 for expert evidence from the single expert and for submissions at that time.
The father has now made an application that the further four-day listing commencing on the 11 February 2025 until 14 February 2025 be vacated, and that his current legal representatives, Simonidis Steel Lawyers, be granted leave to cease acting.
An affidavit of Mr Constantine George Simonidis (“Mr Simonidis”), the father’s current lawyer, was filed in support of his application on 4 February 2025. Mr Simonidis is the Principal of Simonidis Steel Lawyers.
In the affidavit Mr Simonidis states that the father provided instructions to his legal representatives to seek to vacate the trial dates and that the father has instructed them to seek leave to withdraw at the conclusion of the application for this adjournment.
Mr Simonidis says that the father had instructed him that he was seeking the dates to be vacated to allow him the opportunity to seek legal representation pursuant to s 102NA of the Family Law Act 1975 (Cth) (“the Act”). The affidavit states that the father is “no longer prepared to borrow funds to cover the ongoing costs of his legal representatives.” He also deposes to the fact that the father does not wish to appear self-represented, and as such, is seeking time to obtain representation under the scheme.
A further affidavit was filed by Mr Simonidis [yesterday] which did not comply with Rule 5.08 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). No party opposed that affidavit being relied upon and leave was granted for it to be relied upon.
The affidavit contained Mr Allwright’s further instructions that he has submitted an application for legal assistance through Legal Aid NSW, that he had been informed that the assessment process is expected to take approximately 4 to 6 weeks (for Legal Aid) and that Mr Allwright “intends to seek the Court's leave to recall the applicant for further cross-examination.”
There are various matters that weigh for and against vacating the final hearing dates which I have carefully considered.
MATTERS IN FAVOUR OF AN ADJOURNMENT
The father’s access to justice and legal representation
The father instructed his current lawyers to withdraw representation at the conclusion of the adjournment application. He does not however wish to be self-represented.
A party’s capacity to be represented is governed under s 57 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“FCFCOA Act”) which provides that a party to a proceeding is not entitled to be represented by another person unless:
(a)under the Judiciary Act 1903, the other person is entitled to practise as a barrister or solicitor, or both, in a federal court; or
(b)under the regulations, the other person is taken to be an authorised representative; or
(c)another law of the Commonwealth authorises the other person to represent the party.
The Full Court in a number of cases, including Zan & Wen (No 2) (2023) FLC 94-153, discussed the prejudice that could be experienced by a party to a proceeding who has been legally represented for a portion of the final hearing and then becomes self-represented. It is considered that it is important for a party who is [un]represented to have the benefit of legal representation when that is available. However, the Full Court also goes on to identify that parties who are unrepresented are afforded certain assistance as set out in the case of Re F: Litigants in Person Guidelines (2001) FLC 93-072 at [242]. It is the primary judge’s duty to ensure that any self-represented litigant understands the practice and procedure and they had reasonable opportunity to participate in their litigation.
In this instance the applicant was represented by both experienced counsel and solicitors who, on his instructions, undertook cross examination of the mother over several days, putting his case to her. It is significant in this application that the cross examination of the mother has concluded but she is yet to be re-examined at the resumption of the trial.
There can be no doubt that legal representation is desirable but it is not an entitlement. Sometimes parties have circumstances thrust upon them where they are no longer represented. In this instance the applicant has had the opportunity but failed to explain why he will no longer be represented. The high point of the explanation was that he is no longer prepared to borrow funds to cover the ongoing costs in circumstances where the estimate of the days required for the hearing seems to have been off the mark. The fact that he is now unprepared to borrow funds to continue the litigation is a matter that is within his control. The parties in this matter were on notice of the delays in s 102NA funding when Judicial Registrar Hiles made orders and directions in August 2024, including advising them of the need to attend to any such application at least 12 weeks prior to the commencement of the trial.
As I said during submissions to [the applicant’s] solicitor, his failure to take any steps to secure funding was entirely within his control, noting that he had been previously represented by PWC lawyers from March 2022 until October 2024, and then he changed to Simonidis Steel Lawyers in October 2024.
Having said that, it is the case that when there are serious allegations legal representation is desirable.
The father’s ability to afford legal representation
[The father] has indicated through his lawyers that he is not prepared to borrow further funds and seeks the benefit of a s 102NA scheme or otherwise funding through Legal Aid.
The applicant gave no evidence through his lawyer or directly of any inability on his part to meet the funds, he just gave evidence of a lack of preparedness to do so. I am not satisfied on any evidence that that he is unable to afford the legal representation or that he cannot make arrangements to secure representation, so this is not a matter that lends in favour of the adjournment application.
The father’s foreshadowed application to reopen the cross examination in circumstances where the cross-examination of the mother had concluded
As referred to earlier, the father, in the further affidavit filed by lawyer, asserts that Mr Allwright “intends to seek the Court's leave to recall the applicant for further cross-examination.”
The purported topics or topic of additional cross examination has not been foreshadowed in his evidence. His failure to identify what the areas of further topics of cross examination would be such as to permit the recalling of a witness makes it impossible to consider the merit of such an application.
The asserted intention to seek the Court’s leave to recall the applicant was not accompanied by any evidence to support the basis for indicating that such an application may be successful if it were made. Mr Allwright was uniquely in the position to articulate the basis for contending that such an application may have merit. He had the opportunity to provide the detail of any important [and] relevant evidence or the need for such additional cross examination, but he remained silent.
This matter has been litigated since the recovery order application was filed on 20 January 2022, now over three years ago, and the litigation includes both property and parenting matters. I refer to the decision of Campton J in the decision of Allwright & Allwright (No 4) [2024] FedCFamC1F 587, which is the anonymised version of this matter, which ultimately dealt with, amongst other things, objections to subpoena. His Honour noted the conduct of the litigation to that date, and he included in his judgment that at that time, 235 documents had been filed, and the matter had consumed 66 listings. He observed and I quote: “The capacity for the parties to engage in litigation appears endless.”
In those reasons at [22] His Honour noted the mandatory provisions in the FCFCOA Act (now in the Act at s 95) about the responsibility to manage litigation as efficiently and inexpensively as possible, including the requirement to effectively use judicial and administrative resources and exercise its power to ensure the timely disposal of all proceedings in a way that is proportionate to their complexity.
The applicant has had a long period of time to consider all relevant material, he has been intimately involved in the matter since the beginning and has been represented at all times until now. He has instructed his legal team to file a number of interim and interlocutory applications, and he has responded to a number of interim and interlocutory applications. The applicant through his counsel, instructed by at least one instructing solicitor throughout the trial and at times two, started cross examination of the mother at 10.47am on day two and cross examination by the ICL commenced at 12.16pm on day four of the trial. The testing of the mother’s evidence occurred over three days. Counsel for the father had in the trial plan indicted part of one day as necessary for cross examination. It ultimately took place, as I say, over three days, being two half days and one full day.
A trial judge has a wide discretion regarding recalling of witnesses, however in this instance there is no evidence whatsoever to form a basis upon which it could be found that the court would be likely to permit further cross examination. A mere assertion of such an intention is inadequate.
In respect of the property proceedings, each party was requested on multiple occasions to confirm the balance sheet in dispute. The matters were finally resolved when an agreed balance sheet was finally presented to the Court.
Summarising that history, the applicant has had more than adequate and fair opportunity, assisted by counsel and instructed by solicitors, to test the evidence of the applicant.
I note that based on what has been presented in this application, the possibility of an argument to reopen cross examination is not a matter that supports adjournment of the trial date.
MATTERS IN OPPOSITION OF AN ADJOURNMENT
The father’s access to funds
The father’s access to funds in order to pay lawyers is another consideration that I take into account.
There is some evidence in his financial statement filed on 23 December 2024 as to his income and an estimate as to the property owned by himself.
Impact on Court resources and other Court users
Another factor that I must consider in considering an application to vacate a hearing date is the impact on court resources and other court users.
I refer to the High Court decision in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 (“Aon Risk Services v ANU”) in relation to the impact on the public as a whole and other parties to proceedings, not merely the parties to these proceedings, in determining whether or not matters ought to be adjourned in certain circumstances. Gummow, Hayne, Crennan, Kiefel and Bell JJ observed:
112.A party has the right to bring proceedings. Parties have choices as to what claims are to be made and how they are to be framed. But limits will be placed upon their ability to effect changes to their pleadings, particularly if litigation is advanced. That is why, in seeking the just resolution of the dispute, reference is made to parties having a sufficient opportunity to identify the issues they seek to agitate.
113.In the past it has been left largely to the parties to prepare for trial and to seek the court's assistance as required. Those times are long gone. The allocation of power, between litigants and the courts arises from tradition and from principle and policy. It is recognised by the courts that the resolution of disputes serves the public as a whole, not merely the parties to the proceedings.
Necessity to apply under the s 102NA scheme
As I indicated earlier, on 9 September 2024 I made an order under s 102NA of the Act which set out the steps that the parties needed to take in order to secure s 102NA representation.
Pursuant to this order the mother applied under s 102NA and is being represented under the scheme. The father did not apply for representation, although knew of its availability through not only the order that was made by me but an order that was made by Judicial Registrar Hiles on 8 May 2024.
Prejudice to the parties
Prejudice to the parties is another matter that I need to consider in considering this application to vacate the hearing date.
Mr Simonidis correctly identified that the children are not currently spending time with the father and says that there is little prejudice to the mother and no risk to the children arising from the potential deferral of the conclusion of the final hearing. The status quo as referred to by Mr Simonidis remains of no time with the father. This argument has merit, although unnecessarily prolonging proceedings involving children and the potential impact on them of unresolved proceedings is a factor that I give weight to. Ultimately however, I have been able, by rearranging some diary commitments, to find a way to hear the balance of the evidence at the time of the proposed final sitting in April. In such circumstances the prejudice to the mother and to the children is minimised.
Counsel for the ICL, Mr Squires, correctly identified also that the prejudice to the father where there is so much evidence having already been taken and he is potentially changing legal counsel could be significant, particularly where he may ultimately be unrepresented and he will not have had the benefit of the transcript or assistance on the next occasion. The nature of the allegations made against the father are indeed very serious. This is a factor that weighs in favour of an adjournment in order to afford the father the opportunity to either engage legal counsel or to have access to the transcript in order to represent himself.
Impact upon the children
The impact of the children is another matter that I need to have consideration to.
Section 69ZN of the Act specifies the principles that the Court must give effect to in parenting proceedings. The first principle is that the Court needs to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on children.
Delay to the proceedings
Another factor that must be considered is delay.
The principles set out in s 69ZN of the Act also identify “that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.”
Given that I am able to list the matter to be heard and finalised on the dates in April where the matter was otherwise going to be listed, the consideration of delay is not a significant matter, and it also supports the father’s application to adjourn.
Mother’s attitude to the application to adjourn
Somewhat unexpectedly counsel for the mother was “neutral” as to the application. That is, she neither opposed nor consented the application. The submissions made by counsel highlighted indeed the potential prejudice to the father and the fact that if he were unrepresented the trial may, by nature of his unrepresented state, be further delayed. This is also a relevant consideration.
The ICL’s attitude
The ICL’s position was that they opposed the application for the very reasons identified in the dialogue I had with Mr Simonidis during his submissions, for reasons including: the need not to prolong proceedings, the benefit to the children of the matter being finalised, the Aon Risk Services v ANU factors being the impact on other court users and the efficient running of the court generally, complying with the overarching purpose of the Act and the obligations in respect of the conduct of children’s proceedings. However, the ICL also indicated that the potential prejudice to the father being unrepresented in circumstances of such serious allegations was also a factor to be considered.
CONCLUSION
This matter is finely balanced.
I have, as I have indicated, weighed up each of the relevant factors and the submissions made by each of the parties.
On balance, however, the fact that I am able to adjourn the matter to a date in April by altering the court diary so that the matter can be finally heard and determined in one further sitting instead of two, commencing on 28 April until its conclusion, supports the application being granted. Any delay in finalisation will not be significant in those circumstances.
Balancing the prejudice to the father against the overarching purpose and other relevant considerations in the circumstances of this case, in particular, the serious nature of the allegations of sexual abuse and the issues in dispute is the factor that tips in favour of the adjournment being granted. This was particularly so as the mother, whose interests are a relevant factor, neither consented nor opposed the vacation of the February dates and adopted the neutral position through her counsel. It is now possible that the matter is able to be heard to conclusion on one further sitting block in April.
Accordingly, the application to vacate the February dates is granted.
I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Curran. Associate:
Dated: 16 April 2025
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