Manesh & Manesh (No 2)
[2021] FedCFamC1F 292
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Manesh & Manesh (No 2) [2021] FedCFamC1F 292
File number(s): MLC 8955 of 2019 Judgment of: JOHNS J Date of judgment: 22 November 2021 Catchwords: FAMILY LAW – PROCEDURE – adjournment application – fourth day of hearing – delays caused by husband’s conduct – husband seeking adjournment due to alleged inability to retain counsel – husband had assistance of counsel and elected to proceed without him – impact of adjournment on other matters – need for finality – application refused Division: Division 1 First Instance Number of paragraphs: 15 Date of hearing: 22 November 2021 Place: Melbourne The Applicant: In Person Solicitor for the Applicant: Elisa Rothschild Lawyer Counsel for the Respondent: Mr Puckey QC Solicitor for the Respondent: Freeman Family Law Counsel for the Independent Children's Lawyer: Mr Ham Solicitor for the Independent Children's Lawyer: Macgregor Solicitors ORDERS
MLC 8955 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR MANESH
ApplicantAND: MS MANESH
RespondentINDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JOHNS J
DATE OF ORDER:
22 NOVEMBER 2021
THE COURT ORDERS THAT:
1.The Husband’s oral application for adjournment is dismissed.
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 the pseudonym Manesh & Manesh has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
This is the second oral application for an adjournment made on behalf of the respondent husband, this application made on the fourth day of the final hearing. For the reasons that follow, the husband’s application for adjournment is refused.
The husband’s first application for adjournment was made on the third day of hearing, being 18 November 2021. That day I made orders adjourning the final hearing to this day. I refer to my ex tempore reasons for judgment regarding the background to the matter.
Today the husband is represented by a newly appointed solicitor, Mr Jones whose practice is based in Sydney. Mr Jones was briefed by the husband on the afternoon of Friday, 19 November 2021. He appears in person today and seeks an adjournment of the proceedings on the basis that he has been unable to retain Counsel to represent the husband for the remainder of the final hearing.
The husband’s application for an adjournment is opposed by the wife and the Independent Children’s Lawyer (“the ICL”).
In my view, the husband has had ample opportunity to engage with lawyers, and as I have noted previously, he has been represented by lawyers during the hearing, those lawyers appointed pursuant to the Commonwealth scheme as a result of an order made pursuant to s.102NA of the Family Law Act 1975 (Cth) (“the Act”). The husband has chosen not to retain those lawyers; that he now elects to change lawyers is not a reason for an adjournment.
As to his ability to secure counsel to represent him for the balance of the hearing, it is submitted that he instructed his newly appointed solicitor to engage Counsel on his behalf on Friday. I do not know, and I have no evidence before me as to what steps were taken by those lawyers to retain Counsel. However, I do make the observation as a Judge of this court of more than eight years' standing, and also previously as a barrister at the Victorian Bar, the proposition that there was no barrister available to accept a brief to appear on behalf of the husband this day does not accord with my knowledge and experience of practice in the State of Victoria as to the briefing of Counsel.
It is also submitted that the husband requires an adjournment in order to adduce additional evidence. However, the evidence sought to be adduced has been prepared by the husband’s solicitor, Mr Jones. That evidence is available to the court and, in relation to two of the affidavits sworn and filed over the past weekend, there is no objection by the wife or the ICL to the husband’s reliance upon that material.
As to the issue of whether I should grant the husband leave to adduce evidence for an adversarial expert witness to give evidence in relation to the value of the Country C property, that is a question for determination in the running of the hearing.
The husband does not seek to adduce any additional evidence in relation to the parenting matters.
Having regard to those matters, I am satisfied that the additional evidence sought to be adduced by the husband is available to the Court and his application to adduce evidence from an adversarial witness does not necessitate an adjournment.
The determination of an adjournment application is always a delicate balancing act. This court has a wide discretion to grant adjournments, but it is not an unfettered discretion. It is not only the litigants in this matter that I must consider in determining an adjournment application; I must also take into account the impact an adjournment will have on other cases.
This case has already disrupted the running of other cases because of the necessity to adjourn the proceedings over from Thursday to today. Other cases will be similarly disrupted if the matter does not proceed to its conclusion this week. That is a significant factor in the exercise of my discretion to refuse the adjournment application.
I am also mindful of the impact of an adjournment on the parties’ daughter, X, the subject child of these proceedings. The reality is that if the matter does not conclude this week, the proceedings will have to be adjourned until the middle of next year. That will have a significant, detrimental impact upon X, who has been the subject of this conflict for some years now. She needs finality so that she can move forward with her life.
The impact is significant to the wife also, who is under the care of a psychiatrist for treatment for Post-Traumatic Stress Disorder. Last week, I heard evidence from the wife’s psychiatrist, Dr H, as to the adverse impact of the proceedings upon the wife. That impact is significant and ongoing and it is unlikely that it will abate until such time as these proceedings are concluded. The adverse impact of the proceedings upon the wife is also felt by X, she being in the wife's sole care.
For those reasons, I am satisfied that the application for an adjournment ought be refused.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Johns delivered on 22 November 2021. Associate:
Dated: 20 December 2021
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