Barilla & Barilla - [2023] FedCFamC1F 261

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Barilla & Barilla [2023] FedCFamC1F 261

File number: CAC 1604 of 2018

Judgment of: GILL J

Date of judgment: 5 April 2023

Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Oral application made by self-represented respondent for adjournment in proceedings in order to seek new legal representation, in context where their lawyer recently came off record – Where the respondent has taken no steps to respond to the present application – Where the oral application was made following the submissions of the other parties – Vague prospects of respondent retaining a lawyer – Consideration of unfairness – Adjournment application refused.

Division: Division 1 First Instance

Number of paragraphs: 9

Date of hearing: 5 April 2023

Place: Canberra

Counsel for the Applicant: Mr Howard

Solicitor for the Applicant: Farrar Gesini Dunn

Solicitor for the Respondent: Litigant In Person

Counsel for the Intervener: Mr Haddock

Solicitor for the Intervener: Parker Coles Curtis
ORDERS

CAC 1604 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS BARILLA

Applicant

AND:
MR BARILLA

Respondent

MR MARRIOTT AS LIQUIDATOR OF B PTY LTD (IN LIQUIDATION)

Interested Party

order made by:

GILL J

DATE OF ORDER:

5 APRIL 2023

THE COURT ORDERS THAT:
1.The husband’s oral application for adjournment is refused.

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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX-TEMPORE REASONS FOR JUDGMENT
GILL J:

Mr Barilla today makes an oral application for adjournment of the proceedings in order to obtain legal representation.
These proceedings were caused initially by the filing of an Application in a Proceeding by the wife some months ago. That Application in a Proceeding was addressed by the husband, who filed a response and supporting material opposing the relief sought by the wife and seeking further relief.
More than one month ago, the wife amended her Application in a Proceeding to add further relief that was directed against the liquidator in these proceedings. The husband has taken no step to respond to the Amended Application in a Proceeding and it is noteworthy that the relief sought against the husband has not changed.
Two days ago, the liquidator filed a response seeking to be discharged from these proceedings. That follows on from the liquidator filing…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Barilla & Barilla

Details

AGLC: Barilla & Barilla [2023] FedCFamC1F 261
Case: [2023] FedCFamC1F 261
Decision Date

CaseChat Overview and Summary

The case of Barilla & Barilla was before Gill J of the Federal Circuit and Family Court of Australia (Division 1). The husband, Mr Barilla, applied for an adjournment of the proceedings to obtain new legal representation, as his previous solicitors had ceased to act. The wife had previously filed an Application in a Proceeding, to which the husband had responded and sought further relief. The wife later amended her Application to include the liquidator of a company, who has since filed a Notice of Discontinuance and an application to be discharged from the proceedings. The husband, now self-represented, made an oral application for an adjournment, indicating his intention to obtain legal representation but expressing uncertainty about his ability to do so.

The legal issues before the court were whether the husband's application for an adjournment should be granted, and if there was any unfairness in the conduct of the proceedings given the husband's recent change in legal representation. The court considered the husband's inactivity in the proceedings since filing his response, the vague prospects of him retaining a lawyer, and the timing of the adjournment application, which was made after the other parties had been heard.

The court found that there was no unfairness in the husband's recent cessation of legal representation, and that the application for an adjournment was made too late, after the other parties had presented their submissions. Given these considerations, the court refused the husband's application for an adjournment.

The court's final order was that the husband's application for adjournment was refused. The form of the order was subject to entry in the Court's records, and it was noted that the judgment may be subject to review or variation as per the relevant Federal Circuit and Family Court of Australia (Family Law) Rules. The court also noted that publication of the judgment under a pseudonym had been approved under the Family Law Act 1975.

Orders