Chadwick and Chadwick and Anor

[2016] FamCA 578

FAMILY COURT OF AUSTRALIA

CHADWICK & CHADWICK AND ANOR [2016] FamCA 578

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournment – Where the second respondent sought an adjournment of the interim hearing to file further material – Where the second respondent had proper notice of the hearing – Where there is a prejudice to the applicant if the adjournment is granted – Application dismissed.

Family Law Act 1975 (Cth)

APPLICANT: Ms Chadwick

1^st RESPONDENT: Mr Chadwick

2^nd RESPONDENT: Mr Hsiang

FILE NUMBER: SYC 2478 of 2015

DATE DELIVERED: 13 July 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Gill J

HEARING DATE: 13 July 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Schonell SC

SOLICITOR FOR THE APPLICANT: Macpherson & Kelley Lawyers

COUNSEL FOR THE 1^ST RESPONDENT: Mr Alexander

SOLICITOR FOR THE 1^ST RESPONDENT: Tomaras Lawyers

SOLICITOR FOR THE 2^ND RESPONDENT: Mr Tzovaras of Tzovaras Legal

Orders

1. The second respondent’s oral application for an adjournment of the proceedings listed today is dismissed.

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 Chadwick & Chadwick and Anor 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 SYDNEY

FILE NUMBER: SYC 2478 of 2015

Ms Chadwick

Applicant

And

Mr Chadwick

1^st Respondent

And

Mr Hsiang
2^nd Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. An application for an adjournment is made at approximately 3.00 pm on 13 July 2016, part way through the hearing of the Further Amended Application in a Case made by the applicant wife.

2. In an application filed 17 February 2016, which was an Amended Application in a Case the wife sought orders to restrain the second respondent in respect of dealing with certain funds the subject of proceedings today. That application was served on 18 February 2016 and a Notice of Address for Service was filed by solicitors then appearing for the second respondent on 1 April 2016.

3. On 16 May 2016 Justice Le Poer Trench placed this matter into the short notice list indicating to the parties that the matter may be brought back before the Court on 48 hours’ notice to the parties.

4. On 21 June 2016 the matter was set down for today. That is in excess of three weeks ago. Although the matter has proceeded by dealing with the Further Amended Application, the substance of the restraint upon the second respondent was outlined in the Amended Application filed on 17 February 2016. The second respondent filed a Response directed to the Application on 22 April 2016 seeking that the orders sought by the applicant against the second respondent be dismissed and also seeking costs.

5. At the commencement of the proceedings today I identified with each of the parties the orders which were sought. These were all helpfully identified by the parties. The second respondent indicated that he wished to proceed with an application for summary dismissal. He has argued the case on that basis and my decision in relation to summary dismissal is currently reserved.

6. The second respondent now applies for an adjournment on the basis that he wishes to place more evidence before the Court as to whether or not an injunction may be futile. His legal representative has only come into the case quite recently, having received his instructions late last week. It is also put for the second respondent that there is no prejudice in a further delay in the matter for further material to be brought on. It is further put for him that the balance of convenience in relation to the matter, or the balance of fairness in relation to the matter, falls on the side of granting his client an adjournment of the case.

7. Given that the second respondent has been well on notice as to the terms of the orders that would be sought, the evidence has been presented in support of the remedies sought by the applicant wife and submissions in full have now been received on behalf of the applicant wife in relation to those remedies and it is further unclear when further time might become available for hearing of the matter and further that there is no explanation advanced on behalf of the second respondent as to why material to answer the claim made by the wife was not filed at an earlier stage (such criticism is not directed at his current legal representative given the lateness with which he has entered the proceedings) I do not consider that the balance of fairness as urged upon me by the second respondent, if that was the test to be applied, falls in his favour.

8. I refuse the application for an adjournment on the basis that proper notice has been given which enabled the second respondent to prepare adequately for the case. The fact that the second respondent has not chosen to do so should not be left to rest on the applicant wife. I do not accept that there is no prejudice to the applicant wife given the circumstances that have been described as to the funds coming into the second respondent’s hands and the movement of the funds from that point. I decline the application for an adjournment.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 13 July 2016.

Associate: 

Date:  15 July 2016