C and C - [2006] FMCAfam 744

FEDERAL MAGISTRATES COURT OF AUSTRALIA

C & C

[2006] FMCAfam 744

FAMILY LAW ─ Interlocutory application ─ application to adjourn trial ─ application to adjourn dismissed.

Family Law Act 1975 (Cth)

Myer [1969] WAR 19
Reed and Draper [1995] FLC 92-649

Applicant:

CGJ

Respondent:

CRJ

File number:

MLM 2946 of 2006

Judgment of:

Walters FM

Hearing date:

7 November 2006

Date of last submission:

7 November 2006

Delivered at:

Castlemaine

Delivered on:

7 November 2006

REPRESENTATION

Counsel for the Applicant:

Mr G A Devries

Solicitors for the Applicant:

J A Middlemis

Counsel for the Respondent:

Mr T J Puckey

Solicitors for the Respondent:

Cynthia A Toose

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
CASTLEMAINE

MLM 2946 of 2006

CGJ

Applicant

And

CRJ

Respondent

REASONS FOR REASONS

(Ex Tempore)

Before the court is an application on the part of the wife to adjourn the trial of this matter to a date to be fixed before me in Melbourne in the new year.
The grounds relied upon include an allegation that the husband has not provided information in relation to his current superannuation entitlements (a request having been made for that information on

20 October 2006). Further, and notwithstanding an early order that I made, that information has not been presented.
Both parties in proceedings before this court (and, indeed, in proceedings before the Family Court of Australia) have an obligation, to use a colloquialism, to “get their tackle in order” prior to the commencement of the trial. The fact of the matter is that this trial actually commenced when I was here in Castlemaine in August 2006. The trial was adjourned part-heard because it appeared to me then – and indeed it appeared I think to the practitioners involved in it as well – that it was not ready for hearing.
It should have been prepared well before the last occasion. I made it perfectly clear to everybody involved in the case when it was adjourned in August that the directions that I was making would have to be complied with and that the matter was going to proceed today. Indeed, I listed it with priority before me on this circuit.
The effect of that direction is that this matter takes priority over other matters, some of which involve the best interests of children. In my view, it is imperative that its priority be retained and that the integrity of the list also be upheld if at all possible.
No explanation has been provided to me as to why Mr Devries' instructors could not have requested information regarding the husband's superannuation entitlement well before 20 October. I do not excuse the husband failing to provide that information. He had an obligation to provide it, and I take that into account. In due course, and if that information comes to hand, I will give the wife leave to reopen for the purpose of testing that information before the court.
If it transpires that the husband has deliberately misled the court, then I…

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.

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Details

AGLC: C and C [2006] FMCAfam 744
Case: [2006] FMCAfam 744
Decision Date: 7 November 2006

CaseChat Overview and Summary

The Federal Magistrates Court of Australia in Castlemaine heard an interlocutory application filed by CGJ, the wife, seeking to adjourn the trial of a family law matter. The primary grounds for the application were the husband's failure to provide information regarding his current superannuation entitlements. The application was opposed by CRJ, the husband, represented by counsel Mr T J Puckey and solicitors Cynthia A Toose. The case had previously been heard in August 2006, at which time it was adjourned due to being deemed unprepared for trial. The Federal Magistrate, Walters FM, was tasked with deciding whether the application for an adjournment should be granted, considering both the injustice principle and the court resources principle.

The legal issues before the court revolved around balancing the potential injustice to the parties if the adjournment was granted or refused. The injustice principle required the court to consider the potential harm to each party. Additionally, the court resources principle emphasized the need for efficient progression through the litigation process due to increasing court workloads and delays. The court had to determine whether there were sufficient grounds to justify an adjournment, considering the failure to comply with previous directions and the potential for further delays.

The court found that there were no adequate grounds to justify an adjournment. The wife had not demonstrated any particularised prejudice that would warrant an adjournment. Furthermore, the court had no confidence that the matter would be any closer to being ready for trial if adjourned. The court emphasized the importance of adhering to directions and the need for parties and their legal representatives to prepare their cases efficiently. The court concluded that the injustice principle did not favour an adjournment, and the court resources principle supported maintaining the trial's scheduled date. The application for an adjournment was dismissed, and the trial proceeded as scheduled.

The court's final order was that the application for an adjournment was dismissed, and the trial would proceed on the scheduled date. The court also noted that if any misleading information was found regarding the husband's superannuation, appropriate action, including potential referral to the Australian Federal Police, would be considered.

Orders