Fairfax & Fairfax
[2022] FedCFamC1F 110
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)Fairfax & Fairfax [2022] FedCFamC1F 110
File number(s): BRC 720 of 2020 Judgment of: HOGAN J Date of judgment: 21 February 2022 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Where the mother seeks that the trial is adjourned – Where the mother is self-represented – Where a legal representative was appointed under s 102NA of the Family Law Act 1975 (Cth) – Where the mother seeks to appoint private representation – Where the trial was listed with expedition – Where the mother asserts that there is insufficient time between now and the commencement of the trial for her to properly prosecute her case –Where the trial is adjourned. Legislation: Family Law Act 1975 (Cth) s 102NA Cases cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Re F: Litigants in Person Guidelines (2001) FLC 93-072
Division: Division 1 First Instance Number of paragraphs: 16 Date of hearing: 21 February 2022 Place: Brisbane Counsel for the Applicant: Mr Alexander Solicitor for the Applicant: Best Wilson Buckley Family Law Solicitor for the Respondent: Self-Represented Solicitor for the Independent Children's Lawyer: Wallace Perkins Family Law ORDERS
BRC 720 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR FAIRFAX
Applicant
AND: MS FAIRFAX
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
HOGAN J
DATE OF ORDER:
21 FEBRUARY 2022
IT IS ORDERED THAT:
1.The final hearing of this matter listed for five (5) days commencing on 14 March 2022 is vacated.
2.The matter is now listed for final hearing for five (5) days before Justice Hogan commencing at not before 12.00 pm on 4 July 2022, at the Federal Circuit and Family Court of Australia (Division 1) at Brisbane.
3.All parties attend the final hearing of this matter in person.
4.The costs of and incidental to the appearance today are reserved.
IT IS NOTED THAT:
A.The Court today provided the Respondent with an explanation about process and procedure in discharge of the obligations imposed by Re F: Litigants in Person Guidelines (2001) FLC 93-072.
B.The Court advised the parties today that Trial Directions to facilitate the adjourned hearing will be made with the consent of the parties in Chambers.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Fairfax & Fairfax has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
HOGAN J:
I have, today, to consider an application for an adjournment that was made orally by Ms Fairfax, last Friday (18 February 2022) for the adjournment of the trial which is currently listed before me to commence on 14 March 2022. The trial involves the hearing of applications for parenting orders and, also, applications for property settlement or adjustment orders.
In making her oral application for an adjournment of the trial last Friday, Ms Fairfax relied upon, in a sense, the contents of a document that she later filed in order to assist the other parties to appreciate her submissions in support of the adjournment. Reference to that document, entitled Statement for 18 February 2022 (sealed at 8.26 pm on 18 February 2022) contains the submissions made by Ms Fairfax earlier that day. They can be summarised, I think, in essence, as being the submission by a self-represented litigant that she considers that she would not be in a position appropriately to advocate for herself should the trial continue on its listed dates commencing 14 March 2022, or in that week.
The matter was first before me for the allocation of those trial dates on 14 December 2021. At that stage, Ms Fairfax was also acting for herself. On that occasion, as well as setting the matter down for trial, I also made various notations in relation to the operation of s 102NA of the Family Law Act 1975 (Cth). Those notations include recording that I had on that day advised that: as a consequence of the operation of that section, Ms Fairfax would not be in a position to cross-examine Mr Fairfax at the trial should she remain as a self-represented litigant; and that, as a consequence of that section, the Commonwealth, with the assistance of Legal Aid Queensland, had established a Scheme by which persons in a situation such as Ms Fairfax’s (namely, where s 102NA applies – and, also, I should say, Mr Fairfax) would be able, through that Scheme, to access legal representation and thus, with the assistance of that legal representation, prosecute their respective cases.
When the matter was before me on 18 February 2022, as the record of that appearance will show, a solicitor appeared to announce her appearance. It was apparent that, whilst Legal Aid Queensland had allocated the matter relatively recently – in fact, very recently – to that legal representative, she had not had the opportunity, as at Friday morning, to meet with Ms Fairfax for the purpose of taking instructions. It was also apparent from Ms Fairfax’s comments on the record that she would seek to engage her own legal representation. It was in that context then, that I permitted the solicitor to withdraw; and I note for the record that, as requested, a Notice of Ceasing to Act has been filed on behalf of that firm prior to this appearance today.
The result, therefore, is that, as at today, Ms Fairfax remains acting as a self-represented litigant in these proceedings – albeit that, according to the contents of her Statement for 18 February 2022, she has recently, with the assistance of a friend, been assisted to engage or seek to engage, legal representation in order to have whomever that might be appear on her behalf at the final hearing of this matter.
Reference again to the Statement Ms Fairfax has prepared outlines her recent receipt of significant information: that is not, in a sense, at all unsurprising given that the hearing date allocated on 14 December 2021 (when the matter was before me) was one that was allocated with some expedition and that the timeframes in the Directions subsequently made to facilitate that hearing were fairly tight and imposed upon the legal representatives and, therefore, Ms Fairfax as a litigant in person, a fairly onerous timetable in order to accord the matter expedition.
The fact that it has already been accorded expedition is, of course, a factor to be taken into account in my determination of the application for an adjournment, given the comments in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; namely, in essence, that a court must also take into account, in considering applications for an adjournment of proceedings: the fact of the calls of other matters on that court’s time; the consequences, of course, for the parties themselves, and in this case, for the children because there are parenting matters, but also, for the parties in relation to the extended time for the resolution of the disputes between them; the prejudice to, in this case, Ms Fairfax, that she sets out in her Statement for 18 February 2022 and, insofar as she asserts her inability, between now and three weeks from now, to be able to prepare to represent herself or to have engaged experienced lawyers to act on her behalf as she adverts to; the prejudice to Mr Fairfax in this case, as outlined by Mr Alexander who appears on his behalf – namely, a prejudice, I might summarise, that, as I hear the submissions, encompasses not only financial costs but, of course, time and, as is the case for both parties, the emotional cost of being associated with litigation for longer than is absolutely necessary.
Whilst others may disagree, in this particular case I have been persuaded that the most appropriate course and one that accords the parties justice in a systemic sense is one by which the trial will be adjourned.
In arriving at this decision, I have taken into account and placed particular weight upon Ms Fairfax’s assertions that she is completely overwhelmed by the receipt of the material she has received. In saying that, no one should hear that comment to afford any criticism to those who act on behalf of Mr Fairfax in presenting his case. It is just a statement recording an acceptance by me of Ms Fairfax’s submission that receiving what she describes as “600 pages of information” in the last week or so has resulted in her feeling completely overwhelmed and, I infer, unable properly to take the steps in the next three weeks to ensure that her case is presented.
I have also taken into account that, at least as I understand it from a review undertaken by my Associate for the purpose of the appearance on Friday (which was to be a case management hearing) there has been, I think, no updated trial affidavit material filed on behalf of Ms Fairfax – which would, of itself, have at least the potential to cause difficulties in my determination of the proceedings. I have taken into account the fact that this matter was expedited and thus given priority over other matters awaiting allocation of trial dates. But, as I have said, I am persuaded by the fact of the contents of Ms Fairfax’s Statement insofar as it asserts her being, she considers, unable properly to conduct any proceedings herself in three weeks’ time, or to engage legal representatives to act on her behalf in that timeframe – I have accorded those matters greater weight than I have to others.
I have also taken into account that, insofar as the parenting aspect of the proceedings is concerned, the Independent Children’s Lawyer did not oppose the application made by Ms Fairfax for an adjournment of the hearing. The submissions made by Ms Perkins on Friday included an acceptance that there was a large amount of material. The Independent Children’s Lawyer’s assessment of the proceedings was that it was complicated; she had no objection to the trial being adjourned to enable Ms Fairfax to obtain legal representation.
In acceding to the oral application made by Ms Fairfax to adjourn the final hearing, though, I should not be taken – and Ms Fairfax should not take me to be – in essence, to say that any future difficulties in obtaining legal representation would inevitably lead to a repetition of the same result. Rather, my decision has been made in circumstances where, as I have said, the matter was listed on 14 December last year on an expedited basis and that, at the time the matter was before me on 18 February (last Friday), Ms Fairfax had yet to be allocated a solicitor for whatever reason.
So it is in those circumstances – only three and a half weeks from the commencement of the trial which the Independent Children’s Lawyer describes as complicated; and which, no doubt, insofar as the property aspect of it is concerned, has its own complications – that I have been persuaded to adjourn the hearing.
Given that I am unclear at this stage as to whether Ms Fairfax will, in fact, be able to obtain the legal representation that she hopes to be able to obtain (as she has referred to in her Statement for 18 February 2022) I intend to deliver some comments to discharge my obligation in Re F: Litigants in Person Guidelines (2001) FLC 93-072.
When I reviewed, over the weekend, my notes of the appearance on 14 December 2021 – and this is another factor to which I have given some weight in my determination to adjourn the proceedings – I noted that I had adverted to the fact that, if Ms Fairfax remained unrepresented, I would have the matter back before me for the purpose of delivering those comments, to assist her in acting for herself at the final hearing if that were to occur. That process has not occurred to date. It is for that reason, then, that I intend, in a moment, also to deliver some explanation in order to discharge my obligations under Re F: Litigants in Person Guidelines. In that way, should Ms Fairfax be unable to obtain the legal representation that she hopes to be able to obtain (as she outlines in her written submission) there will be no doubt that she will have had a number of months – being between now and July when the matter will be back before me for final hearing – within which to undertake her preparations and to ensure that she has placed before the Court whatever affidavit and materials she intends to rely upon.
They are the reasons I intend to deliver in relation to my decision to adjourn the trial.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hogan. Associate:
Dated: 21 February 2022
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