Linwood & Linwood (No 2) - [2024] FedCFamC1F 282

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Linwood & Linwood (No 2) [2024] FedCFamC1F 282

File number(s): MLC 10185 of 2020

Judgment of: BENNETT J

Date of judgment: 29 April 2024

Catchwords: FAMILY LAW – CASE MANAGEMENT – where wife’s s102NA solicitors filed a Notice of Ceasing to Act while matter remains part-heard – where matter has already had four days of final hearing with an estimated two remaining – where solicitors say that the wife terminated the agreement with both her solicitor and her barrister – where wife is in need of an interpreter and is otherwise unable to continue the final hearing as scheduled today without representation - where barrister has agreed to continue to represent the wife at final hearing - where wife is now on notice the matter will proceed at the next hearing date whether she has a lawyer or not – costs reserved

Legislation: Family Law Act 1975 (Cth) s102NA

Division: Division 1 First Instance

Number of paragraphs: 6

Date of hearing: 29 April 2024

Place: Melbourne

Counsel for the Applicant: Mr Duckett

Solicitor for the Applicant: Parminder Sandhu Solicitors

Counsel for the Respondent: Litigant in Person
ORDERS

MLC 10185 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR LINWOOD

Applicant

AND:
MS LINWOOD

Respondent

ORDER MADE BY:

BENNETT J

DATE OF ORDER:

29 APRIL 2024

THE COURT ORDERS THAT:
1.The final hearing resume before me on 14 May 2024 at 10am (for two days).
2.The wife do all acts and things to ensure the attendance by MS Teams link of her brother for the purpose of cross examination
3.The husband’s costs of and incidental to this day be and are hereby reserved.
4.Any party seeking to file further affidavit evidence in anticipation of the resumption of the hearing do so by no later than ~~Thursday 9 May 2024~~ Monday 6 May at 12 noon, and in the event the other party seeks to respond to that material, the responding party file and serve any affidavit evidence in response by not later than ~~16 May 2024~~ Friday 10 May 2024 at 12 noon.
5.Leave is granted to the parties to issue any number of subpoenas to attend Court and give evidence or to produce documents.
6.Until and unless the wife files a Notice of Address for Service to the contrary, her address for service is K Street Suburb N, her email is …@... and her contact number is ….

AND THE COURT NOTES THAT:
A.In the event that a party fails to attend court when required to do so or to file a document that they are required to file that party should expect that the matter will proceed in their absence without further input by them. It has been explained to the wife that the resumption of the hearing on 14 May 2024 will occur regardless of whether she has a solicitor or Counsel to appear on her behalf.

Note: The form of the order is…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] FedCFamC1F 282
Decision Date: 29 April 2024

CaseChat Overview and Summary

The case of Linwood & Linwood (No 2) involved a dispute between Mr Linwood, the applicant, and Ms Linwood, the respondent, within the Family Law Act 1975 (Cth). The matter was before the Federal Circuit and Family Court of Australia (Division 1) where Mr Linwood sought various family law orders. The court was presented with a situation where Ms Linwood's solicitors had filed a Notice of Ceasing to Act while the case remained part-heard. The final hearing had already extended for four days with an estimated two days remaining. Ms Linwood's solicitors indicated that she had terminated her agreement with both her solicitor and her barrister, and she required an interpreter to continue the final hearing without representation. Despite this, Ms Linwood's barrister agreed to continue to represent her at the final hearing, and the court informed her that the matter would proceed at the next hearing date whether she had a lawyer or not.

The court needed to determine how to proceed with the final hearing of the case given Ms Linwood's lack of representation and her need for an interpreter. The legal issues included whether the case could be adjourned, if Ms Linwood could be compelled to continue the hearing without a solicitor, and how to manage the scheduling of further affidavit evidence and subpoenas. The court also had to address the implications of Ms Linwood proceeding without a lawyer and ensure that the matter was managed efficiently and fairly.

In its reasoning, the court emphasised the importance of the final hearing proceeding in an orderly fashion. The court ordered that the final hearing resume on 14 May 2024 for two days, and it mandated that Ms Linwood ensure her brother's attendance via MS Teams for cross-examination. The court also provided detailed instructions regarding the filing of further affidavit evidence and the issuing of subpoenas. Importantly, the court underscored that the hearing would proceed regardless of Ms Linwood's representation, noting that she was on notice of this outcome. The court reserved costs and highlighted that any party failing to attend or file required documents could expect the matter to proceed in their absence. This decision ensures that the court maintains control over the proceedings and that justice is served despite the challenges posed by Ms Linwood's situation.

Orders

Orders of the court

MLC 10185 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR LINWOOD

Applicant

AND:

MS LINWOOD

Respondent

ORDER MADE BY:

BENNETT J

DATE OF ORDER:

29 APRIL 2024

THE COURT ORDERS THAT:

1. The final hearing resume before me on 14 May 2024 at 10am (for two days).

2. The wife do all acts and things to ensure the attendance by MS Teams link of her brother for the purpose of cross examination

3. The husband’s costs of and incidental to this day be and are hereby reserved.

4. Any party seeking to file further affidavit evidence in anticipation of the resumption of the hearing do so by no later than Thursday 9 May 2024 Monday 6 May at 12 noon, and in the event the other party seeks to respond to that material, the responding party file and serve any affidavit evidence in response by not later than 16 May 2024 Friday 10 May 2024 at 12 noon.

5. Leave is granted to the parties to issue any number of subpoenas to attend Court and give evidence or to produce documents.

6. Until and unless the wife files a Notice of Address for Service to the contrary, her address for service is K Street Suburb N, her email is …@... and her contact number is ….

AND THE COURT NOTES THAT:

A. In the event that a party fails to attend court when required to do so or to file a document that they are required to file that party should expect that the matter will proceed in their absence without further input by them. It has been explained to the wife that the resumption of the hearing on 14 May 2024 will occur regardless of whether she has a solicitor or Counsel to appear on her behalf.

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	MLC 10185 of 2020
Judgment of:	BENNETT J
Date of judgment:	29 April 2024
Catchwords:	FAMILY LAW – CASE MANAGEMENT – where wife’s s102NA solicitors filed a Notice of Ceasing to Act while matter remains part-heard – where matter has already had four days of final hearing with an estimated two remaining – where solicitors say that the wife terminated the agreement with both her solicitor and her barrister – where wife is in need of an interpreter and is otherwise unable to continue the final hearing as scheduled today without representation - where barrister has agreed to continue to represent the wife at final hearing - where wife is now on notice the matter will proceed at the next hearing date whether she has a lawyer or not – costs reserved
Legislation:	Family Law Act 1975 (Cth) s102NA
Division:	Division 1 First Instance
Number of paragraphs:	6
Date of hearing:	29 April 2024
Place:	Melbourne
Counsel for the Applicant:	Mr Duckett
Solicitor for the Applicant:	Parminder Sandhu Solicitors
Counsel for the Respondent:	Litigant in Person

MLC 10185 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR LINWOOD Applicant
AND:	MS LINWOOD Respondent

ORDER MADE BY:	BENNETT J
DATE OF ORDER:	29 APRIL 2024