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 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).

REASONS FOR JUDGMENT
Ex-tempore

BENNETT J

1. This matter commenced on 8 April 2024 estimated to take four days.  It took longer of four days, some of which was referable to the fact that I was not available.  When we last adjourned the matter it would be fair to say that the wife’s case was at a fairly low point, she having agreed that she had been untruthful in giving evidence about her income and also untruthful about estimates of her income given to commercial borrowers.  Cross-examination of the wife was due to continue today.

2. During the adjournment, the wife’s then solicitors, O Lawyers, filed a Notice of Ceasing to Act. The wife came to Court today not ready to proceed to resume the matter. It turns out that the solicitor who was retained pursuant to the s 102NA scheme obtained clarification from Victoria Legal Aid that he could be retained outside the s 102NA budget, and he presented an invoice to the wife for just over $6,000 to facilitate his further work in the matter. The wife says she has no money to pay that amount.

3. The barrister, Mr P, has been paid the s 102NA allowance as his brief fee. Mr P is prepared to act on behalf of the wife on that basis for the conclusion of the trial, which should be concluded in two days commencing 14 May 2024. He has confirmed that he is prepared to appear without an instructing solicitor. Mr P and Ms Linwood have been given an opportunity to speak together today, notwithstanding that she is under cross-examination, but only about the readiness of the case to proceed.

4. There is a conflict in what I have been told were the reasons for the former solicitors to have filed a Notice of Ceasing to Act.  The solicitor concerned says that the wife told him in no uncertain terms that she was not happy with the result of the hearing thus far and did not want the solicitor, nor the barrister (Mr P) to act any further.  On the other hand, the wife says that she did not say that and it was only the fact that she could not pay the $6,000 invoice which led to the solicitors not acting.  That is not the solicitor’s perspective at all. 

5. In any event, the final hearing cannot proceed today. In these circumstances I have informed the wife that, come what may, the matter will commence on 14 May 2024 at 10am.  I have explained that it will not be a sufficient excuse that she does not have lawyers to appear on her behalf on those days or that her case has not been made ready by a lawyer.  The wife is responsible for ensuring that her case is ready to proceed to completion on 14 May 2024. 

6. Notably, there is provision in the orders I have made for any further evidence to be filed.  Finally, I will add to the orders provision to the wife’s address for service. Costs of today will be reserved.

I certify that the preceding six (6) numbered paragraphs are a true copy of the ex-tempore Reasons for Judgment of the Honourable Justice Bennett.

Associate:

Dated:       10 May 2024