Ludic and Ludic (No 2)

[2015] FamCA 269

FAMILY COURT OF AUSTRALIA

LUDIC & LUDIC (NO 2) [2015] FamCA 269

FAMILY LAW – APPLICATION FOR AN ADJOURNMENT OF FINAL HEARING – Application refused

APPLICANT: Mr Ludic

RESPONDENT: Ms Ludic

INDEPENDENT CHILDREN’S LAWYER: Sarah Cleeland Family Lawyers

FILE NUMBER: BRC 9294 of 2009

DATE DELIVERED: 31 March 2015

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 31 March 2015

REPRESENTATION

APPLICANT: In Person

COUNSEL FOR THE RESPONDENT: Ms Pendergast

SOLICITOR FOR THE RESPONDENT: Integrated Family Law

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Andrew

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Sarah Cleeland Family Lawyers

Orders

IT IS ORDERED THAT

1. The Applicant Father’s oral application for an adjournment of the trial is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ludic & Ludic (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER:  BRC 9294 of 2009

Mr Ludic

Applicant

And

Ms Ludic

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. I have this morning an application made by the father for an adjournment of the trial.  The application rests upon two documents and submissions made by the father, who appears in person with the assistance of an interpreter. 

2. The documents which I have admitted and marked as Exhibits A and B respectively are, respectively, a medical certificate from the I Medical Centre dated 30 March 2015, which informs me that the father attended there that day reporting an injury which began on 28 March 2015, causing him back pain.  The medical certificate asserts that the father will require “time off” until 2 April 2015. 

3. The contents of Exhibit B inform the Court that the father has an appointment for review at the orthopaedics clinic of the J Health Service, at 3.00 pm today.  That correspondence is dated 23 March 2015. 

4. The father submits that the Court would be persuaded in the interests of justice, and taking into account the child’s best interests, to make an order adjourning the final hearing of this matter to a later date.  He says that this should be the Court’s conclusion because the impact of the pain associated with his back difficulties and/or injury causes him to feel unwell and, on occasion, has caused him to faint. 

5. He makes the submission that the proceedings involving the (then) children commenced in this Court in 2009, and that, if his application for an adjournment is successful, the Court should give proper consideration to allocating other dates as soon as practicable so that this matter can be finalised. 

6. One of the relevant circumstances, of course, in determining the application made by the father is the length of time within which proceedings have been on foot.  Another relevant circumstance is, I think, the age of the child and that he has been the subject of interview for the preparation of Family Reports on no less than three occasions spanning the period from 2011 to 2014. 

7. Regard to the most recent Family Report makes clear that he has come to a point where he is sick of being involved in court proceedings and matters associated with litigation.  Regard need only be had to the fact that he participated in that interview with Ms E via telephone conversation, during which he expressed his desire to no longer be involved in, and considered within, litigation between his parents.

8. The father’s application for an adjournment of the final hearing is opposed by both the mother and the Independent Children's Lawyer.  Submissions made by Counsel on behalf of each of those parties succinctly and relevantly outlined relevant considerations for me in arriving at a determination. 

9. I take into account the fact that this is the second occasion on which this matter has been listed for final determination.  I take into account the fact that its listing today has the obvious consequence that other matters awaiting final determination have not been afforded the opportunity for judicial determination. 

10. I take into account the fact that three Family Reports have been prepared for the assistance of the Court since 2011.  I take into account that B is currently about 16 and a half years of age.  I take into account, also, the father’s assertion that this matter involves an assessment and consideration of asserted harm to B - a matter which surely causes the Court to be prepared to undertake a final determination of it as soon as practicable.

11. I take into account also the submissions made by Mr Andrew on behalf of the Independent Children's Lawyer in relation to the expense and confidence of the public at large in the administration of justice and the consequences for other matters awaiting determination if this matter is to be adjourned - if this matter, is adjourned it would need to be allocated, (as the father seeks) time already allocated for another matter. 

12. I take into account the expenditure of public moneys in the provision of legal representation for the Independent Children's Lawyer and Mr Andrew, who she instructs.  I also take into account the impact of the likely stress on both parties of any adjournment of this matter, particularly in circumstances where proceedings have been on foot for such a significant period of time. 

13. The evidence relied upon by the father suggests certain difficulties associated with pain.  I accept his submissions that he needs to stand up and/or sit down, and/or change position, on a regular basis. As I have already conveyed to him, the Court has no difficulty with him, during the course of the proceeding, acting so as to alleviate whatever discomfort and/or pain he is suffering. 

14. Additionally, I am persuaded that the Court can accommodate the difficulties associated with back pain by, for example, taking more regular adjournments than would otherwise be the case, and certainly by concluding the proceedings this afternoon in sufficient time to permit the father time to travel from the city to the orthopaedic department at Suburb K for a 3 o’clock appointment.

15. I am persuaded that the interests of B require that this matter proceed for final determination on the days allocated to it.  Additionally, there is nothing before me to suggest, if an adjournment were granted, whether the father would be in a position at some further adjourned date to be able to proceed with the matter or whether, simply, there would remain a prospect of a recurrence of back pain and associated difficulties. 

16. For those reasons, then, I refuse the application for an adjournment. 

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 31 March 2015.

Associate:                 

Date:    31 March 2015