Gadde and Gadde and Anor

[2016] FamCA 579

FAMILY COURT OF AUSTRALIA

GADDE & GADDE AND ANOR [2016] FamCA 579

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournment – Where the husband sought an adjournment the day before the interim hearing – Where the husband provided insufficient material in support of his adjournment application – Application dismissed.

Family Law Act 1975 (Cth)

APPLICANT: Ms Gadde

RESPONDENT: Mr Gadde

INTERVENOR: Meyer Partners Pty Limited

FILE NUMBER: SYC 417 of 2015

DATE DELIVERED: 12 July 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Gill J

HEARING DATE: 12 July 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Sweeney

SOLICITOR FOR THE APPLICANT: Barkus Doolan Family Lawyers

FOR THE RESPONDENT: No appearance by or on behalf of the respondent

COUNSEL FOR THE INTERVENOR: Mr Alexander

Orders

1. The husband’s application for an adjournment of 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 Gadde & Gadde 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 417 of 2015

Ms Gadde

Applicant

And

Mr Gadde

Respondent

And

Meyer Partners Pty Limited

Intervenor

EX TEMPORE REASONS FOR JUDGMENT

1. This matter has been listed today for interim property and children’s matters. It was adjourned from 14 June this year, such adjournment being necessitated by the death of counsel for the wife’s mother. Prior to that date the parties had prepared relevant affidavit material to support the applications being heard on that date.

2. The parties were both on notice that the matter was to proceed today, however on 5 July 2016 Argyle Lawyers, who had prepared the material for the husband’s case, filed a Notice of Ceasing to Act. At about the same time there was a series of exchanges of correspondence between the husband and the solicitors for the wife regarding the potential adjournment of today’s proceedings on the basis of settlement of interim proceedings. This exchange of correspondence did not lead to a resolution whereby an adjournment was agreed to by either of the parties even though both had sought the adjournment on different terms. To be clear, each sought an adjournment that was conditional upon particular terms. This email correspondence can be seen at Exhibit W1.

3. Exhibits H1 and H2 show that yesterday and today the husband forwarded correspondence to the Court seeking an adjournment of today’s proceedings. Yesterday the adjournment was sought on the basis that it was necessary for the husband to secure lawyers. He has presented no evidence as to the circumstances in which his previous lawyers ceased to act, nor any steps that he has taken to retain lawyers, nor as to any difficulties or inadequacies or impediments in him doing so. While it must be the case that it would be difficult to pick up the matter at short notice no material has been presented to indicate any steps that have been taken to remedy this, nor any time frame in which lawyers might be able to become ready.

4. Further, the wife in Exhibit W1 points to correspondence that her solicitors received from Kennedys Lawyers on 11 July 2016, that is yesterday, in relation to potential defamation proceedings to be brought by the husband against the wife. This is indicative of a capacity on the part of the husband to engage lawyers and the letter has the appearance that those lawyers had been freshly engaged.

5. Where the husband was on notice of these proceedings occurring today and where he has presented no evidence as to his inability to properly present his case today, I decline his application for an adjournment as evidenced by his email correspondence, at least on that basis advanced by him.

6. The husband raises a second basis to seek an adjournment in that in today’s correspondence he asserts that he is suffering from a migraine. The only description of severity is that it is a “thumping” migraine. It is not particularised in sufficient fashion as to enable me to form a conclusion that it demonstrates an inability on his part to attend the proceedings today, at least to articulate the need for an adjournment.

7. He asserts that he is due to attend on a general practitioner today in that correspondence and that he will forward a medical certificate. If a medical certificate is received that may merit further consideration of this ground of the application by the Court. However, the correspondence that indicates that he will obtain a medical certificate carries with it the implication that he intends to attend upon a general practitioner. This gives some cause to consider that he carries with him the capacity to make an attendance outside of his own home despite the fact that he is suffering from this migraine.

8. The critical issue in considering this aspect of the application is fairness to all the parties but in particular to the husband given his assertions as to his difficulties with attending. The critical aspect of this fairness is that he be accorded a proper opportunity to be heard.

9. On the basis of the material that has been presented by him, I do not conclude that he unable to attend these proceedings and I decline, pending the receipt of any further material, his adjournment application. He has the opportunity to be heard, having been placed on notice and having not demonstrated his inability to attend and I conclude that the requirements of fairness to him have been met.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 12 July 2016.

Associate: 

Date:  15 July 2016