Jarmon & Tannen (No 2)
[2024] FedCFamC2F 546
•24 April 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Jarmon & Tannen (No 2) [2024] FedCFamC2F 546
File number(s): MLC 7298 of 2023 Judgment of: JUDGE O'SHANNESSY Date of judgment: 24 April 2024 Catchwords: FAMILY LAW – Necessary to vacate imminent final hearing – Impact of ill-health – Longer estimates of time of trial than previously – Division 1 set up to deal with longer and/or more complex cases – Transferral to Division 1 Legislation: Family Law Act 1975 (Cth) Division: Division 2 Family Law Number of paragraphs: 5 Date of hearing: 24 April 2024 Place: Melbourne Solicitor for the Applicant: Ms Fridey Counsel for the Respondent: Ms Swart Solicitor for the Respondent: Forte Family Lawyers ORDERS
MLC 7298 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS JARMON
Applicant
AND: MR TANNEN
Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
24 APRIL 2024
THE COURT ORDERS THAT:
1.The Final Hearing listed to commence on 29 April 2024 be and is vacated.
2.The matter be and is transferred to Division 1 of the Federal Circuit and Family Court of Australia, on a date to be advised, noting that the following criteria are identified:
(a)The Final Hearing will likely take approximately five (5) days; and
(b)There is an estimate of ten (10) witnesses.
3.The matter be referred to the National Assessment Team for consideration of transfer to Division 1 AND IT IS NOTED THAT the matter requires allocation of a final hearing in Division 1 and the parties will be contacted directly by the National Assessment Team confirming the transfer/relisting of proceedings and the next listing date.
4.The Respondent Husband, MR TANNEN (‘the Husband’), be granted leave to file and serve a further Amended Statement of Claim and any further affidavit on which he seeks to rely by 4.00pm on 28 May 2024.
5.The Applicant Wife, MS JARMON (‘the Wife’), be granted leave to file and serve an Amended Defence to the Husband’s Amended Statement of Claim within 28 days of the date of service of the Husband’s Amended Statement of Claim.
6.The Wife file and serve one trial affidavit and one affidavit of each witness, including expert witnesses, she intends to rely upon at trial, such affidavits to comply with rule 8.15 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, by 4.00pm on 26 June 2024.
7.By no later than 5 business days prior to the Final Hearing, each party file and serve an outline of case document with respect to the issues for determination including the following:
(a)A list of the documents to be relied upon;
(b)The main issues in dispute;
(c)A list of authorities relied upon; and
(d)A statement of the precise orders sought.
8.The parties’ costs of this hearing be and are reserved until Final Hearing.
AND THE COURT NOTES THAT:
A.Counsel for the Husband has indicated that she will be unavailable to appear during the week commencing 28 October 2024.
B.The parties assert that they do not require any further directions hearing.
C.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
D.Affected unrepresented parties may apply to the court and then to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.
E.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
F.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
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 a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR EX TEMPORE JUDGMENT
These are the settled reasons of a judgment delivered ex tempore pursuant to section 69ZL of the Family Law Act 1975 (Cth) (‘the Act’). These reasons were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected, citations and/or passages of authorities and evidence added and an attempt has been made to make the orally delivered reasons easier to read, but the substance is unchanged.
In the matter of Jarmon & Tannen, I’ve had Ms Swart of counsel for the respondent husband, Mr Tannen (‘the Husband’), and Ms Fridey, solicitor, for the applicant wife, Ms Jarmon (‘the Wife’). The matter was previously before me recently where trial directions were varied. At that time, the Wife’s counsel told me, and I accept genuinely, that between the two unhappy circumstances that she had to choose from – that is, to vacate the trial or to attempt to actually file material within a very short time to keep the existing trial date – the Wife chose the latter, that is, to keep the existing trial date. The Wife alleges – and it has substantial corroboration – a series of health issues that has, she says, impacted on her and prevented her from filing trial material under that new date. Ms Fridey has told me that her client is today quite capable of giving instructions notwithstanding the tumultuous events described in her affidavit filed 18 April 2024.
Further to that, Ms Swart has sought what was described as further “tweaking” to the Husband’s statement of claim and sought leave to file a further document. She asserts that further grounds to set aside the financial agreement have arisen from my Order in regard to discovery and disclosure. At the time, with the best of intentions, the Wife was going to be under substantial pressure, as was Ms Fridey, to complete disclosure as ordered as well as trial material.
In all of those circumstances I am satisfied there is no option but to vacate the trial date. Further, Ms Swart tells me that the Husband’s case will be of four to five witnesses and Ms Fridey tells me that the Wife’s case will be of four to five witnesses. The solicitor and counsel appearing agree that the matter appears to be headed for a good solid five days of hearing, and indeed in my view it will require some significant discipline and preparation of counsel to ensure that it remains no more than five days, and I’m pessimistic that it will be contained within that time.
The parties do not seek a further directions hearing and hope to simply get a listing. I am satisfied that it is appropriate in the interests of justice and within the spirit of the legislation of this Court that I transfer this matter to Division 1. Division 1 is set up to deal with longer and/or more complex cases. That should not be regarded as a criticism of either party or of any lawyers in the case, and indeed I am grateful to solicitor and counsel today for their frankness and sensible approach to the unhappy circumstances that present everyone.
I certify that the preceding five (5) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 2 May 2024
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