Bradbury and Lander and Ors

[2020] FamCA 41

FAMILY COURT OF AUSTRALIA

BRADBURY & LANDER AND ORS [2020] FamCA 41

FAMILY LAW – PRACTICE AND PROCEDURE – Oral Application for Adjournment – Refused.

APPLICANT: Mr Bradbury

RESPONDENT: Ms Lander

SECOND RESPONDENTS: Mr & Ms B Lander

INDEPENDENT CHILDREN’S LAWYER: Ms M Burgess

FILE NUMBER: CAC 239 of 2017

DATE DELIVERED: 21 January 2020

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 21 January 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr J Haddock

SOLICITOR FOR THE APPLICANT: Infinity Legal

SOLICITOR FOR THE RESPONDENT: Self-representing

SOLICITOR FOR THE SECOND RESPONDENTS: Self-representing

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mary Burgess

Orders

1. The Mother’s oral application for an adjournment is refused.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bradbury & Lander has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 239 of 2017

Mr Bradbury

Applicant

And

Ms Lander

Respondent

And

Mr & Ms B Lander
Second Respondents

EX TEMPORE REASONS FOR JUDGMENT

1. An application has orally been made by the Mother to adjourn the interim proceedings which were commenced as a result of an Application in a Case filed by the Father in October 2019.

2. The proceedings now come before me for interim hearing in January 2020, some three months after the filing of the Father's Application in a Case.  That Application in a Case was the subject of directions that were made in December 2019 which set the matter down for interim hearing today.  In setting the matter down for interim hearing some particular special accommodations were made in relation to the matter. 

3. Firstly, an extended period of time was granted to enable the filing of material by the various Respondents to the application.  The second is that additional time was made available today, such that three hours were set aside as opposed to the usual two that would be set aside for interim hearings. 

4. Despite the procedural directions that were made, the various Respondents failed to file in accordance with those directions.  Those directions have been crafted in order to provide procedural fairness to each of the parties, including giving the Respondents sufficient time to file their material and giving the Father sufficient time to be able to prepare his case in response to that material.  Those procedural directions included the capacity of the Father to rely upon a Case Outline Document but only if it was filed a week before these proceedings so as to give the Mother and the maternal grandparents sufficient opportunity to understand how it was that the Father was to put his case.  He complied with those directions and was then faced with the Mother filing her trial affidavit after he had already filed that material.  That trial affidavit comprises some 140 plus pages of material along with, I am told, in excess of 1,000 pages or rather four reams of associated documents. 

5. I have ruled that the Mother will not be permitted to rely upon that affidavit today, as to do so would be procedurally unfair. 

6. In response to that, the Mother has made an oral application for adjournment of the proceedings.  That oral application is opposed by the Independent Children's Lawyer, by the Father and by the maternal grandparents, although it may be noted that a significant part of their opposition to the adjournment is that they wish the Mother's financial matters to be dealt with today.  The capacity to deal with those financial matters on the exclusion of the affidavit material is limited to the extent that the Mother could not be successful in relation to the financial matters that she now advances and so limited weight will be placed upon the maternal grandparents’ opposition to the adjournment application.

7. That adjournment application comes in the context of the Father not being accorded procedural fairness by the late filing of the Mother's material.  An adjournment could cure that question of a lack of procedural fairness as it would give the Father added time to wade through the material that has been filed.  However, that would be to ignore the fact that in October 2019 the Father filed an application which would have the effect that the Mother would only have supervised time.  That is an application of some importance that has been deferred for a period of approximately three months in order to accord appropriate procedural fairness to each of the parties. 

8. The Father is entitled to have that application heard particularly under circumstances where appropriate arrangements were made for the filing of material which were not complied with and that the further adjournment would be to deal with that non-compliance.  That is a matter that tells significantly against acceding to that adjournment application.

9. There is a further matter that tells against acceding to the adjournment application.  The material that has been filed by the Mother, which has been excluded from her reliance today constitutes a quagmire of material.  It is difficult having examined that material, without having yet examined the exhibit material as well, to discern within that material where evidence of worth to the application may be extracted.  The material concentrates in large parts on historical matters which it may be noted can have a bearing in interim proceedings, but does so largely to the exclusion of matters which might be considered to be more pressing to resolve the parties’ various applications.  It is difficult to extract from that material anything that is of evidential worth, particularly given that it is clothed in argument to an extent that it would be expected that should an application to strike out material on the basis of argument be acceded to then much of that affidavit would disappear. 

10. Under those circumstances, while an adjournment might cure the immediate question of procedural unfairness that does another unfairness in the delaying of an already delayed application made by the Father and does so under circumstances where the Court and the various parties would then still be faced by material, that is as I have described, a quagmire.

11. On that basis, the application for an adjournment is refused.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 21 January 2020.

Associate:

Date:  24 January 2020