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 a Notice of Discontinuance on 30 January 2023, ending his pursuit of any relief against either the husband or the wife in this Court.
Shortly thereafter, the liquidator also expressed the view to the parties that he was no longer a party to the proceedings. Whilst incorrect in this assertion, it indicated his position was that he was not involved in the proceedings any longer. He has reinforced that position on Monday by filing the application to be discharged.
It may be observed that over the months, as these issues have unfolded, the husband has taken no further step in the proceedings since the filing of his response and affidavit.
The husband now appears without legal representation. His previous solicitors filed a Notice of Ceasing to Act the Friday prior to these proceedings, being 31 March 2023. Accordingly, the husband appears with no lawyer. He indicates his desire to obtain a lawyer, but also intimates his inability to retain one, suggesting that he may not have the resources available to retain a lawyer. He does not anticipate that the lawyer would work for free.
Under those circumstances, it is vague as to the prospects that he might retain a lawyer in the future. The question arises as to whether or not there is any unfairness in the conduct of these proceedings given that the husband has recently ceased to retain a lawyer. However, there is no suggestion of circumstances surrounding the ending of that retainer, which point to the ending of the retainer, as being a matter of unfairness to the husband as he comes before the Court today.
Under those circumstances, and noting that the oral application for adjournment did not take place until all other parties had been heard in the matter, the application for adjournment is refused. That refusal takes place in the context of the purposes of the Court in the conduct of litigation as referred to in the relevant rules.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 5 April 2023
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