GIUNTA & GIUNTA

[2020] FamCA 453

FAMILY COURT OF AUSTRALIA

GIUNTA & GIUNTA [2020] FamCA 453

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournment –Where the single expert report was released after the commencement of the hearing – Where a part-heard hearing would result in inconsistencies in the method of witness examination – Where an application for an adjournment has been made – Adjournment granted.

Family Law Rules 2004 (Cth) r 1.04

Ducatti &Tritton [2018] FamCA 979

APPLICANT: Mr Giunta

RESPONDENT: Ms Giunta

INDEPENDENT CHILDREN’S LAWYER: Delaney Lawyers

FILE NUMBER: SYC 3842 of 2018

DATE DELIVERED: 18 May 2020

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: McClelland DCJ

HEARING DATE: 18 May 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Finch

COUNSEL FOR THE RESPONDENT: Mr O’Brien

SOLICITOR FOR THE RESPONDENT: Russell Kennedy Aitken Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Ms Shea

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Delaney Lawyers

Orders

1. Pursuant to rule 15.04 of the Family Law Rules 2004 (Cth), copies of the report by Dr B dated 18 May 2020 may be given to:

   (a)       The parties;

   (b)       the lawyer(s) for the parties;

   (c) The lawyer(s) representing the child/ren in the proceedings under s 68L of the Family Law Act 1975 (Cth) (if appointed); and

   (d)       If a party is legally aided, to employees of the legal aid body providing financial assistance to the party, but only upon a request from an employee of the legal aid body, for a copy of the report.

2. Except with the Court’s permission, no person is to release the report, or provide access to the report, to any person other than those mentioned in paragraphs (a), (b), (c) or (d) of the previous Order.

3. The matter is adjourned for hearing for five (5) days commencing on 9 November 2020 at 10.00 am.

Notations

A.The wife undertakes to do all things necessary to facilitate the husband and the wife applying for the mortgage repayments on the former matrimonial home being reduced to interest-only payments in the period between now and the last day of the final hearing.

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 Giunta & Giunta 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 3842 of 2018

MR GIUNTA

Applicant

And

MS GIUNTA

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This matter comes before me today as it has been listed for final hearing to be heard over five (5) days commencing today. The parties were, prior to commencing proceedings, anticipating receipt of a Family Report by Dr B, however, that report was not received until 10.25 am, several minutes after the hearing had commenced. The Family Report was subsequently released to the parties and their legal representatives and, on the request of the parties, the matter was stood in the list to provide the parties with an opportunity to consider the Family Report. Upon returning, counsel for the mother made an Application to adjourn the proceedings in light of the substance of the Family Report.

2. The granting of an adjournment, essentially, involves balancing, on the one hand, the issue of fairness to the parties as against the efficiency of the litigation process, not only to the parties in these proceedings but also to other litigants. In Ducatti & Tritton [2018] FamCA 979 at [14]-[18] I summarised those relevant principles.

3. In considering where the balance falls, r 1.04 of the Family Law Rules 2004 (Cth) (“the Rules”) is significant. That rule provides that:

   The main purpose of these Rules is to ensure 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.

4. The objects of that rule are, obviously, impeded where there is an adjournment. As against that, however, is the fairness to the parties.

5. It goes without saying that the observations and recommendations of a single expert in parenting proceedings can have a significant impact on the outcome of the proceedings. On that basis, in circumstances where the report of Dr B was received at a time after the hearing commenced today, I consider that it is appropriate that the parties have time to consider the report. In that respect, I note that counsel for the mother has indicated that he would have some challenges in preparing his cross-examination, certainly, for the balance of today and that, by the time the cross-examination continued commencing tomorrow, it is unlikely that we would complete the matter this week.

6. In agreeing with that assessment, I note the length of the parties’ respective Affidavits and the volume of material that each party has respectively filed. I also note that, as a result of the matter being listed on an urgent basis, the Court had, in any event, only half a day available on the third day of the hearing to hear the matter. In that context, there is a risk that I would be assessing one witness, namely, the father, by way of online video link and, at the adjourned dates which are, unfortunately, as far away as November, I would be seeing the mother cross-examined, conceivably, in person. Such circumstances could give rise to an element of unfairness.

7. Having regard to those factors, I am satisfied that the potential unfairness to the parties, in this case,  as submitted by counsel for the mother, is more significant than the potential efficiency issues that I have earlier referred to. On that basis, I accede to the adjournment on one condition, that is, the notation that I make that the mother undertakes to do all things necessary to facilitate the father and the mother applying for the mortgage repayments on the former matrimonial home, at C Street, Suburb D in the State of New South Wales, to be reduced to interest-only payments in the period between now and the last day of the hearing.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice McClelland delivered on 18 May 2020.

Associate:

Date:  5 June 2020