ERVINE & NASSAR
[2020] FamCA 1028
•24 November 2020
FAMILY COURT OF AUSTRALIA
| ERVINE & NASSAR | [2020] FamCA 1028 |
| FAMILY LAW – PRACTICE AND PROCEDURE – application for an adjournment – where the applicant’s lawyer is no longer in a position to instruct counsel due to unforeseen circumstances – where the applicant seeks an adjournment to a date when his lawyer can be present throughout the final hearing – where the respondent opposes that application – where an adjournment would result in a delay to the proceedings of approximately six months – where it is not in the child’s best interest for this matter to be delayed – order that the applicant’s application be dismissed. |
| Family Law Act 1975 (Cth) s 69ZN, 97 Family Law Rules 2004 (Cth) |
| Aon Risk Services v Australian National University [2009] 239 CLR 175 Mertens & Mertens [2016] FamCAFC 136 |
| APPLICANT: | Mr Ervine |
| RESPONDENT: | Ms Nassar |
| FILE NUMBER: | MLC | 10512 | of | 2018 |
| DATE DELIVERED: | 24 November 2020 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Johns J |
| HEARING DATE: | 24 November 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Borger |
| SOLICITOR FOR THE APPLICANT: | Slater and Gordon |
| COUNSEL FOR THE RESPONDENT: | Mr Atkinson |
| SOLICITOR FOR THE RESPONDENT: | Cantwell Family Lawyers |
Orders
That the applicant be granted leave to make an oral application for adjournment of the hearing listed to commence before me on 25 November 2020.
That the applicant’s application for an adjournment of the hearing made this day be 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 Ervine & Nassar 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 MELBOURNE |
FILE NUMBER: MLC 10512 of 2018
| Mr Ervine |
Applicant
And
| Ms Nassar |
Respondent
EX-TEMPORE REASONS FOR JUDGMENT
This matter is listed for final hearing before me to commence tomorrow, 25 November 2020. The applications before the Court relate to future parenting arrangements in respect of the parties’ child, X, who is aged five years. There are also competing property applications, each party seeking an adjustment of their property interests.
The matter has been listed for mention today at the request of the applicant. He seeks leave to make an oral application for an adjournment of the final hearing.
The applicant, Mr Ervine, is aged 44 years. He is employed as a leader with a community service organisation.
The respondent, Ms Nassar, is aged 45 years and she is engaged in home duties.
The parties commenced their relationship in 2013 and separated on a final basis in late 2017. There is one child of that relationship, X, who is aged almost six years. The current arrangements in relation to X’s care are that he spends equal time between his parents on a four day on, four day off cycle.
In respect of future parenting arrangements for X, the applicant seeks a continuation of the shared care arrangement. He also seeks orders that he have sole parental responsibility. The respondent seeks an alteration of the arrangement such that the care arrangements move to a week-about arrangement. She seeks that the parties continue to have equal shared parental responsibility for X.
The applicant brings his application for an adjournment as a result of an unfortunate and sad occurrence in respect of his lawyer. The position is that his lawyer’s father passed away on Sunday evening, 22 November 2020. As a result of that occurrence, the lawyer will not be available to instruct counsel who is briefed to appear at the final hearing.
The applicant’s lawyer has had the conduct of the matter over the past year. It is submitted on behalf of the applicant that the lawyer, because of his continuing involvement in the matter, has significant and detailed knowledge of the history of the dispute between the parties. I am told that there are some six boxes of correspondence in relation to the matter.
The position of the applicant is that he considers that his ability to conduct the case will be compromised in the event that his lawyer is not available to instruct counsel for the final hearing. It is also submitted that the child’s welfare will not be compromised pending an adjournment. The applicant contends that the existing shared care arrangement could continue and that arrangement does not place the child at any risk. It is submitted that balancing the needs of each of these parties, that the weight of the matter should fall to the applicant as the prejudice to him were the matter to proceed without the assistance of his lawyer would outweigh any prejudice suffered by the respondent were an adjournment granted.
The application is opposed by the respondent. Whilst she is sympathetic to the position of the applicant’s lawyer, she submits that the reality is that the principal concern for the parties should be the impact of the adjournment upon the parties’ child. In support of that submission, the respondent relies upon the observations and assessment of the family consultant, who has prepared a family report in the matter dated 5 October 2020. That family report emphasises the negative impact the ongoing conflict between the parties has had on the child and will continue to have if there is a further delay.
The determination of any adjournment for an application is always a delicate balancing act. This Court has a wide discretion to grant adjournments, but it is not an unfettered discretion. Kent J in the decision of Mertens & Mertens [2016] FamCAFC 136 helpfully summarised the matters that should be taken into account when determining an application for an adjournment. He there stated as follows:-
3.The Court obviously has a wide discretion to grant adjournments but it is not a discretion which is unfettered. The Court should take into account the reasons for the adjournment, any period of delay in making the application, any prejudice or disadvantage to other parties that cannot be compensated by way of orders for costs and indeed, since decisions of the High Court, for example in Aon Risk Services v Australian National University [2009] 239 CLR 175, the effect also upon the Court and other litigants before the Court of the adjournment.
4.The fundamental consideration is whether the adjournment is necessary to do justice as between the parties.
5.Added to that which I have already observed, s 97 (3) of the Family Law Act 1975 (Cth) (“the Act”) imposes an obligation upon the Court to endeavour to ensure that proceedings are not protracted and the Family Law Rules 2004 (Cth) (“the Rules”) express objectives for cases to be resolved in a just and timely manner at a cost to the parties and to the Court which is reasonable in the circumstances of the case. I refer to, for example, r 1.04 of the Rules. Notably the Rules also impose responsibilities upon parties to proceedings. For example, r 1.08 imposes an obligation upon parties to ensure their readiness for court events; and to give notice as soon as possible of an intention to apply for an adjournment…
In addition to s 97 of the Family Law Act 1975 (Cth), under division 12A of the Act, which applies to child-related proceedings, the Court is required to give effect to the principles set out in section 69ZN. In particular, the first principle that the Court must consider is the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings. The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality and legal technicality and form as possible.
As I have noted, were I to accede to the adjournment application, there would be a significant delay in the proceedings. The reality is that the matter could not be relisted before me until May or June of 2021, a delay of approximately six months. That is a significant matter, particularly given the issues relating to the future care arrangements for X. At paragraph 59 of the family report, the family consultant stated:-
…the main issue within this assessment is the parental conflict, and the impact of this on X. X is stuck in the middle of this acrimonious relationship. He has been exposed to a high level of volatility and instability in his short life, and is likely he is holding a considerable amount of pressure. Whilst his parents are unable to communicate in person, X is the only one communicating openly between the parents. It is expected that X’s anxiety is exacerbated even more so at changeover, when the parties refuse to communicate with each other, and the changeover is being filmed by Mr Ervine, who is also accompanied by a third party. X is forced to navigate the conflict in person, placing pressure on X to appease both his parents who are evidently at odds with one another. His reactions described by the parties before and after changeover in consistent with a child experiencing anxiety. By becoming tired, clingy and somewhat withdrawn, X is trying to cope with the trauma of the ongoing parental conflict.
Whilst that evidence is untested, they are observations and assessments that are deeply concerning to the Court. Given that evidence, it is the view of the Court that a significant delay such as would occur in the event of an adjournment would be contrary to ensuring X’s best interests.
The applicant is represented by a large and well-known law firm, Slater and Gordon. Whilst they do not have a family law department, it was conceded by the father’s counsel that other lawyers within that firm would be available for the purposes of instructing counsel, whether that being with respect to note taking or undertaking any other specific tasks that counsel may require in the running of the hearing.
Whilst I accept that the applicant’s counsel would prefer to be instructed by the solicitor familiar with the case, it is not, in my view, uncommon for other lawyers to undertake the responsibility of instructing in the running of a trial. Indeed, many hearings in this jurisdiction proceed in circumstances where counsel does not have the assistance of an instructing solicitor.
Having regard to the principles enunciated in division 12A and having regard to the evidence before this Court as to the impact the litigation is having upon the parties’ young child, in my view, there would be a significant prejudice to his health and well-being were there to be an adjournment, which would delay the final hearing for a period of approximately six months.
The applicant’s counsel has been involved in the matter for some time. She will have the assistance of an instructing solicitor, albeit not the solicitor who has had the day-to-day conduct of the matter in the past year. Accordingly, I am satisfied that the applicant’s ability to conduct his case will not be compromised as a result of his lawyer’s absence and that justice as between the parties will be done. Having regard to all of the matters which I have identified, I am satisfied that the application for an adjournment should be dismissed. Therefore, the matter will proceed on its listed hearing date to commence at 10 am tomorrow.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 24 November 2020
Associate:
Date: 24 November 2020
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