Mohsen & Collings
[2023] FedCFamC2F 544
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Mohsen & Collings [2023] FedCFamC2F 544
File number(s): PAC 2793 of 2021 Judgment of: JUDGE MURDOCH Date of judgment: 4 May 2023 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Ex Tempore Reasons for Judgment – where the applicant paternal grandmother made an oral application on the day of the interlocutory hearing for the matter to be adjourned on the basis that she was awaiting a grant of legal aid – where the respondent mother seeks orders for the entirety of the paternal grandmother’s application to be summarily dismissed – where the proceedings have been on foot since 2021 – where the paternal grandmother deposes to owning property of a significant value – where significant judicial resources have been allocated to this matter to date – oral application refused. Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) s 190
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 1.04(1)
Cases cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175: [2009] HCA 27 Division: Division 2 Family Law Number of paragraphs: 12 Date of hearing: 4 May 2023 Place: Parramatta The Applicant Litigant in person Solicitor for the Respondent Griffiths Family Law ORDERS
PAC 2793 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS A MOHSEN
Applicant
AND: MS COLLINGS
Respondent
order made by:
JUDGE MURDOCH
DATE OF ORDER:
4 MAY 2023
THE COURT ORDERS THAT:
1.The oral application of the applicant paternal grandmother for an adjournment of the respondent mother’s application for summary dismissal of the proceedings is refused.
2.Judgment is reserved.
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 Mohsen & Collings has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE MURDOCH
These are proceedings arising from an application filed by the paternal grandmother on 24 May 2021 seeking time with the subject child, B born in 2011.
Listed today for hearing is the respondent mother’s application by way of her Response filed on 12 February 2023 that such application for time with B be summarily dismissed.
The paternal grandmother makes an oral application for an adjournment of today’s hearing.
In support of such oral application the paternal grandmother submits from the bar table today that:-
·she has applied for a grant of legal aid “sometime in April”;
·the Legal Aid Commission are still processing such application; and
·she wishes to have the benefit of a legal representative to deal with the mother’s application for summary dismissal.
The mother opposes the grant of the adjournment and made oral submissions in reply. It was submitted on behalf of the mother that, having regard to the paternal grandmother’s Financial Statement filed in these proceedings which deposes that the paternal grandmother is the sole legal registered proprietor of an item of real estate at Suburb BA with a value of $980,000, the paternal grandmother’s application for legal aid is likely to be refused.
I have no evidence before me that an application for a grant of legal aid has been sought. It is only prior to the parties commencing their oral submissions that the paternal grandmother seeks an adjournment today and tells me from the bar table that she has sought the grant of legal aid.
These proceedings have now been on foot since the paternal grandmother commenced them on 24 May 2021. The paternal grandmother has had every opportunity to seek representation during that time. Orders were made by this court listing the mother’s application for summary dismissal on 21 February 2023. There is no reason provided by the paternal grandmother as to why she delayed in seeking a grant of legal aid.
It is a matter of judicial discretion as to whether an adjournment is granted.
In the well-known and often cited High Court decision of Aon Risk Services Australia Ltd v Australian National University (2009)239 CLR 175: [2009] HCA 27 his Honour Chief Justice French said:
In the proper exercise of the primary judge’s discretion, the applications for adjournment and amendment were not to be considered solely by reference to whether any prejudice….. could be compensated by costs. Both the primary judge and the Court of Appeal should have taken into account that, whatever costs are ordered, there is an irreparable element of unfair prejudice in unnecessarily delaying proceedings. Moreover, the time of the court is a publicly funded resource. Inefficiencies in the use of that resource, arising from the vacation or adjournment of trials, are to be taken into account. So too is the need to maintain public confidence in the judicial system.
Further, s190 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“Federal Circuit and Family Court Act”) clearly states that I have a mandatory obligation to ensure that proceedings are conducted in a manner that is according to law and as quickly, inexpensively and efficiently as possible. That mandatory obligation is also provided in rule 1.04 (1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”).
I refuse the oral application made by the paternal grandmother today for an adjournment in circumstances where:
·This matter has been on foot now for almost two years and the paternal grandmother has had every opportunity to obtain legal representation.
·The mother could not be adequately compensated for such an adjournment by way of a costs order having regard to, no doubt, the stress caused to the mother by these proceedings.
·Judicial resources have been allocated to hear and determine this matter today.
·If the matter were to be adjourned today it would not be able to be heard until 11 August 2023.
·These are parenting proceedings and it is in the best interest of B that they be dealt with as quickly and efficiently as possible.
·And I accept the submissions made on behalf of the mother that having regard to the paternal grandmother’s financial situation as deposed to in her Financial Statement, it is unlikely that the paternal grandmother would obtain a grant of legal aid and we would thus be in the same position in three months’ time as we are today.
The application for an adjournment is therefore refused.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Murdoch. Associate:
Dated: 4 May 2023
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