Chimin and Fiato

[2019] FamCA 155

FAMILY COURT OF AUSTRALIA

CHIMIN & FIATO [2019] FamCA 155

FAMILY LAW – PRACTICE AND PROCEDURE – application for an adjournment – application for adjournment granted.

Family Law Act 1975 (Cth)

APPLICANT: Mr Chimin

RESPONDENT: Ms Fiato

INDEPENDENT CHILDREN’S LAWYER: Faraday Law

FILE NUMBER: BRC 10018 of 2015

DATE DELIVERED: 20 February 2019

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 20 February 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Bertone

SOLICITOR FOR THE APPLICANT: Indigo Law

COUNSEL FOR THE RESPONDENT: Dr Brasch QC on behalf of Ms McArdle

SOLICITOR FOR THE RESPONDENT: Keyworth Harris & Lowe Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr McGregor

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Faraday Law

Orders

IT IS ORDERED THAT

1. The matter is adjourned part heard recommencing at not before 10.00 am on     27 February 2019 for three (3) days.

2. A copy of the transcript of the proceedings on 18 February 2019 be obtained by the Court and, once obtained, be marked in Chambers as an Exhibit and then be provided to the parties.

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 Chimin & Fiato 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 BRISBANE

FILE NUMBER: BRC 10018  of 2015

Mr Chimin

Applicant

And

Ms Fiato

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. I have before me an application made by Dr Brasch of Queen’s Counsel who appears on behalf of Ms McArdle, Counsel engaged to appear on behalf of the mother in the proceedings which commenced before me on Monday this week. 

2. That application is that I adjourn the finalisation of the hearing to a later date.  The basis for the application is that, as a result of information which conveyed the death of a well-known legal practitioner who specialised in family law and practised in and around the Brisbane environs having been conveyed yesterday, Ms McArdle, after reflection, concludes that she is not in a position to discharge her duty either to this Court or, equally importantly - perhaps some might say more importantly, given the competing relief sought between these parents - to her client. 

3. Ms Bertone, who appears on behalf of the father, understandably opposes the application for an adjournment. She does so in circumstances where it is uncontroversial that the father and his daughter have not spent time together, other than that which was observed by Ms E on about 9 January of this year for the purpose of the preparation of her second Family Report, since about October of last year. 

4. That paucity of time falls to be considered within the context of earlier lacunae in the child’s opportunity to spend time with her father following allegations made after their only overnight time together at the father’s residence, which occurred on the evening of 25 September 2016.  In such a circumstance, as I have already commented, it is trite to observe, as Ms Bertone quite properly pressed, that the conclusion of this matter should occur as soon as is reasonably practicable. 

5. I note Ms Bertone’s submission to the effect that it seems that Ms McArdle’s attempts to locate a replacement Counsel unearthed Mr Taylor, albeit late yesterday.  Ms Bertone’s submission is that, with the benefit of today, Mr Taylor (who is experienced in this jurisdiction) could reasonably be expected to be in a position to continue the trial if it were stood over to Thursday morning and thus enable the evidence, at least, to conclude this week. 

6. There is a certain initial attraction in that submission. However, I have ultimately concluded that the nuances that accompany the engagement of legal representatives in all matters, I think, in this jurisdiction are such that I could not properly be persuaded that, even doing the very best that he could – and this is no reflection on Mr Taylor at all – I am not persuaded that, at this stage of the hearing (particularly given the relief that is sought by each of these parents: the mother’s case being that I would be persuaded to make the most significant order, some might say, that can be made in this jurisdiction – namely, one that precludes the child from having the opportunity to spend time or communicate with her father during her minority - and, on the other hand, the father’s case seeking an order changing the child’s uncontroversial primary place of care from living with her mother to living with him) what is advocated for by Ms Bertone is appropriate.

7. Given the relief sought by each parent and taking into account the allegations that have been made about the father’s alleged and asserted behaviours towards the child, the fact that the mother is yet to be cross-examined and that the experts are yet to be cross-examined, I am not persuaded that even competent Counsel could appropriately undertake the onerous task of ensuring that person was appropriately in a position to discharge the obligations to that person’s client. 

8. For those reasons, then, I am persuaded in the circumstances that justice requires that I adjourn the hearing of the matter. 

9. As I have already said, it is clear that this matter requires, as do so many matters, to be afforded priority. That being the case, the time that is now allocated for judgment writing in relation to this matter can be made available to it, so that its hearing can be concluded. That time is next week. 

10. So, in terms of the impact upon, and the delay in, the finalisation of the evidence, it will be as minimal as I can reasonably put into effect. The week, at this stage, was set aside so that I could conclude the judgment in this matter. 

11. Noting that Counsel may well be engaged in other matters that may be listed to start on Monday, I am content to hear from Counsel as to whether a Tuesday start better accommodates that, or a Wednesday start if there are other matters. 

12. Given the reasons I have expressed in acceding to the application advanced by Dr Brasch QC on behalf of Ms McArdle, I am also conscious that there may be other matters in which Counsel who appear in this matter have been engaged to appear for others in matters that start particularly on Monday or Tuesday of next week.  If there are such matters that can be accommodated by a later start in the week, then I have no difficulty with it.  If there are other matters in respect of which arrangements need to be made because of the adjournment of this matter to two dates next week, then I’m afraid they will have to be made.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 20 February 2019.

Associate: 

Date:  20 March 2019