Ghani & Nassif

[2024] FedCFamC2F 1101

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Ghani & Nassif [2024] FedCFamC2F 1101  

File number(s):	PAC 5600 of 2022
Judgment of:	JUDGE STREET
Date of judgment:	8 August 2024
Catchwords:	FAMILY LAW – application for adjournment refused – application in a proceeding dismissed
Legislation:	Family Law Act 1975 (Cth)
Division:	Division 2 Family Law
Number of paragraphs:	6
Date of hearing:	8 August 2024
Place:	Sydney
Counsel for the Applicant:	Mr SK Hartwell
Solicitor for the Applicant:	Scb Legal Pty Ltd
Counsel for the Respondent:	Mr J Farah
Solicitor for the Respondent:	Hazim & Co Lawyers Pty Ltd
Counsel for the Independent Children’s Lawyer:	Mr S Scarlett OAM RFD
Solicitor for the Independent Children’s Lawyer:	Phillip A Wilkins & Associates

ORDERS

PAC 5600 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR GHANI

Applicant

AND:

MS NASSIF

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	JUDGE STREET
DATE OF ORDER:	8 AUGUST 2024

THE COURT ORDERS THAT:

1.The application for an adjournment is refused.

2.The Application in a Proceeding dated 6 August 2024 is dismissed.

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

JUDGE STREET

1. The applicant father (“the father”) filed an Application in a Proceeding dated 6 August 2024 which sought an adjournment of these proceedings listed for final parenting and property hearing on 8 and 9 August 2024 , in circumstances where the matter was fixed for final hearing by orders made on 13 March 2024. On that occasion there was also an order was made under s 102NA of the Family Law Act 1975 (Cth), in favour of the father enabling him to obtain legal representation through Legal Aid. The affidavit in support, dated 6 August 2024, reveals no explanation for the dilatory conduct by the father in taking any steps to obtain legal representation until, it appears, 16 July 2024. No explanation has been given by the father as to what steps were taken following the making of the s 102NA order on 13 March 2024 to obtain legal representation.

2. There are relevantly two children, being X, born in 2012 and Y, born in 2014 (“the children”), who are impacted by the proposed parenting orders. The children have been living with the respondent mother (“the mother”), and there were orders that had been in place to facilitate time on a Sunday with the father until a mobile phone allegedly was found with pornographic material on it, following which, the interaction between the children and the father ceased. The father lodged a Contravention Application dated 30 April 2020, which is also returnable today.

3. Mr Hartwell, on behalf of the father, identified the delayed timing in terms of the instructing solicitors and the receipt of the material, and contending an inability to put on the trial affidavit material needed to advance the father's case.  The father has had a fair opportunity as a result of the orders that were made on 13 March 2024 to put on that material. The father has proffered no proper explanation as to why he did not take adequate steps to obtain legal representation given he was entitled to the same pursuant to the orders made on that date. The further grounds raised by Mr Hartwell relate to an ADVO advancing an extraordinary proposition that the wife put pornographic material on the father’s phone that was discovered by his daughter.  That ADVO is to be heard in late 2024 in the Local Court and an appeal against conviction from breaching an ADVO listed for a readiness hearing in mid-2024.

4. The issues raised in the Local Court proceedings are related to issues raised in this case, and there is proposed evidence relating to those matters. However, the overlap of issues does not mean that the final hearing before this Court should be adjourned. The appeal against conviction of a breach of the ADVO by the father is also not a matter that warrants any adjournment. These other proceedings identify no new circumstances of significance that provide a proper basis for an adjournment.  The endeavour to appeal a conviction in respect of a breaching of the ADVO by the father does not justify an adjournment of the final parenting or property hearing.  The grounds advanced by the father for an adjournment do not justify adjourning the proceedings that have been fixed for hearing today since 13 March 2024.  The Court has also taken into account that there is a very small property pool that is the subject of the property orders being sought today.  The father’s Contravention Application against the mother is not something that will be dealt with separately, there is an obvious evidential overlap and it will be dealt with concurrently with the parenting and property proceedings. 

5. An adjournment would incur further costs and significant delay.  The Court has taken into account the principles in s 43, s 60B, s 69ZM and also the overarching purpose in s 95 of the Family Law Act 1975 (Cth). The Court is of the view that an adjournment is not in the best interests of the children. The Court is also of the view that an adjournment is not warranted in the interests of the administration of justice.

6. Accordingly, the application for an adjournment is refused, and the Application in a Proceeding filed on 6 August 2024 is dismissed.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Oral Published Reasons for Judgment of Judge Street.

Associate:

Dated:       27 August 2024