Duff and Duff

[2007] FamCA 159

FAMILY COURT OF AUSTRALIA

DUFF & DUFF [2007] FamCA 159

FAMILY LAW - PRACTICE AND PROCEDURE - Adjournments - Application refused.

APPLICANT: MR DUFF

RESPONDENT: MRS DUFF

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER: ADAMS PARTNERS LAWYERS

FILE NUMBER: PAF 1337 of 2004

DATE DELIVERED: 20 February 2007

PLACE DELIVERED: Parramatta

JUDGMENT OF: COLLIER J

HEARING DATE: 20 February 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: SELF REPRESENTED

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: MR BROWN

SOLICITOR FOR THE RESPONDENT: BROWNS THE FAMILY LAWYERS

Orders

1. That the father’s application for an adjournment of the final hearing is refused and the matter is to continue on 26 March 2007.

2. That the father’s application to have the matter set down for an interim hearing is refused.

3. That the Orders made on 8 December 2006 for filing of further material and affidavits shall continue to apply.

4. That should the father make an application for disqualification, such application must be filed no later than 12 March 2007 and with that application, the father must file an affidavit setting out the factual grounds upon which the application is made.

5. That the costs of the wife and the Independent Children’s Lawyer of today’s application be reserved to be dealt with at the conclusion of the hearing.

FAMILY COURT OF AUSTRALIA  AT  PARRAMATTA

FILE NUMBER: PAF1337/2004

MR DUFF

Applicant

And

MRS DUFF

Respondent

REASONS FOR JUDGMENT

1. This matter has an extensive history of litigation in this Court.  I do not propose to set out that history in these reasons.  I have already dealt with it in a judgment delivered by me as recently as 21 December 2006 whilst dealing with an application that I discharge an Independent  Children's Lawyer.

2. During the time that that application occupied before the Court ‑ that is, 4 to 8 December 2006 ‑ some time was devoted to fixing further dates for the hearing of substantive issues in this matter before the Court.  At that stage, and with the agreement of all parties, the matter was fixed for five days to commence on 26 March 2007 to continue and hopefully conclude the hearing.

3. By letter of 12 January 2007 addressed to the List Clerk, the husband has sought the relisting of this matter for the purpose of vacating that date.  He has also indicated that he requests a date be set aside in early February to deal with new interim orders.

4. The matter comes before me this morning, and the husband has argued that there is no urgency and, accordingly, the adjournment should be granted.  He says that not to grant the adjournment will prejudice him extensively in relation to his current course of study and, as I understand his submission, will cost him 12 months in the completion of that course.

5. He tells me that he has not made inquiry of any person in authority who might be able to offer some solution to his quandary, but that he has relied upon the rules that he was referred to by administrative personnel.  He tells me as part of his application that there is no urgency in the matter for two of the boys and, indeed, for his son, J, it is important the matter not be concluded because the result on conclusion may well be that the property in which the child lives has to be sold.

6. Mr Brown who appears for the wife opposes the application for adjournment, as does the Independent Children's Lawyer.  Both counsel pointed out to me that the expert evidence before the Court indicates that it is important for the sake of the children that a final result be obtained.  Indeed, as Mr Brown says, the actual result itself is not necessarily as important for the children as the fact that there is a result that brings an end to this extraordinarily difficult, complex and time‑consuming litigation.

7. The husband has also said that because of the time involved he wants to revisit some interim orders, and I will return to that shortly.

8. In determining any application such as this, the parties are entitled to have their convenience taken into account.  The husband said to me, on my count seven times, that counsellors had said to him it was necessary for him to get on with his life and that if I did not allow the adjournment I would be effectively preventing this occurring.  I cannot agree with that submission.  To my mind, whilst acknowledging his involvement in tertiary studies, there is a lack of any evidence that he cannot make other arrangements to deal with the completion of two assignments that are necessary to conclude his first semester of studies.  So far as my suggestion that he might consider making inquiries as to whether those assignments could be postponed, his immediate response was, "That will interfere with my studies for exams". 

9. I am concerned that the husband does not want these proceedings to conclude. I am unable to ascertain why that is but I am concerned that there is an element of that in the actions taken to date by him.

10. To my mind however, the interests of the children are to be considered before the convenience of either party.  The husband, as is his wont, has placed significant reliance upon the rules of Court.  Indeed, he has dealt with the various sub‑rules of r 1 of the Family Law Rules, and it must be remembered that the main purpose of the rules is that each case is resolved in a just and timely manner at a cost to the parties and the Court that is reasonable in the circumstances of the case.

11. Having regard to that, to the issue of the needs of the children and to a lesser extent the wife that a resolution of this matter is required to enable the children and the wife to move on and that requirement for a resolution is almost independent of what the actual resolution is, when balanced against the needs and convenience of the husband it is clear to me that his needs and convenience are not sufficient to enable me, having regard to the best interests of the child and in doing justice to the parties to exceed to his request for an adjournment. Accordingly the application for adjournment is refused.

12. As the matter is to continue in the last week of March, I am of the view that it is not proper as a use of the Court's time or other resources to set this matter down for any further interim hearings, and I decline, indeed, I refuse that part of the husband’s application.

13. I confirm my orders made on 8 December 2006 for the filing of further material and affidavits.

14. I reserve the costs of the wife and the Independent Children's Lawyer of today's application to be dealt with at the conclusion of the hearing.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Collier.

Associate: 

Date:  9 March 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as Duff & Duff