Ayoubi & Tawakol (No 2)

[2014] FamCA 1241

FAMILY COURT OF AUSTRALIA

AYOUBI & TAWAKOL (NO. 2) [2014] FamCA 1241

FAMILY LAW – PRACTICE AND PROCEDURE – Father’s application for adjournment in parenting proceedings where matter is part-heard –where there are competing live-with applications on foot – best interests of children not served by adjournment – adjournment refused.

Family Law Act 1975 (Cth)

APPLICANT: Ms Ayoubi

RESPONDENT: Mr Tawakol

INDEPENDENT CHILDREN’S LAWYER: Ms Devine

FILE NUMBER: MLC 3196 of 2012

DATE DELIVERED: 27 November 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 27 November 2014

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Devine

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ayoubi & Tawakol (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 3196 of 2012

Ms Ayoubi

Applicant

And

Mr Tawakol

Respondent

And

Independent Children’s Lawyer

REASONS

1. This matter is part-heard before me.  Notwithstanding that it is part-heard before me, the father now seeks an adjournment of the matter, he says, to enable him to get legal assistance.  The matter was listed for hearing before me on 6 May 2014 when I set it down for final hearing as a two day matter commencing on 18 September 2014.  The matter proceeded on that date and on the second day of the hearing when both the father and the mother represented themselves, I adjourned the matter part-heard for further hearing before me at 10.00 am on 29 October 2014.  The matter could not proceed on 29 October 2014 as there was not an Egyptian interpreter available to assist the father on that date. 

2. During the adjourned period, on 24 October 2014, the father filed an application for contravention.  That matter was set down for hearing before Johns J at 10.00 am on 21 November 2014.  On that date, the father consulted with the duty lawyer and ultimately withdrew that application.  I am told by the father today that he has lodged three applications for legal aid, that he has no ability to obtain legal assistance other than by way of a grant of legal aid, and that he was advised through his then solicitor by letter dated 16 September 2014 that he could possibly reapply for legal assistance after 29 October 2014.  It is also the case, however, that he has not reapplied for legal assistance.

3. The Independent Children’s Lawyer also referred me to paragraph 13 of the affidavit sworn by the father on 22 October 2014, wherein he deposes that he did not, at that time, have legal representation as Victoria Legal Aid had failed to approve funding.  He further deposes that he had had some assistance from a solicitor within his community but that solicitor was unable to represent him at the hearing due to the lack of legal aid funding and that, at least as at the date when he swore that affidavit, due to Victoria Legal Aid’s funding guidelines, his previous solicitor was not in a position to assist him. 

4. The father has had ample time in which to pursue a grant of legal aid if he so wishes to do so.  This matter is part-heard.  It involves young children and, as the Independent Children’s Lawyer submits, young children who may be exposed to significant risk.  Even if that were not the case, I am satisfied that this is a matter that is in their best interest to have concluded.  There are competing applications for the children to live with each of the parents.  Arrangements need to be put in place that provide some certainty for these children and, in all of the circumstances, I do not propose to accede to the father’s application for an adjournment. 

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 27 November 2014.

Associate:

Date:  22 December 2014