Mudin & Bashar

[2021] FamCA 45

FAMILY COURT OF AUSTRALIA

Mudin & Bashar [2021] FamCA 45

File number(s):	SYC 4881 of 2013
Judgment of:	MCCLELLAND DCJ
Date of judgment:	10 February 2021
Catchwords:	FAMILY LAW – PRACTICE AND PROCEDURE – Adjournment – Where the mother seeks an adjournment of the final hearing set down in this matter – Where the mother contends that she has been unable to prepare for the hearing due to a difficult pregnancy and will be unable to engage in the proceedings due to having an infant child and no options of alternate arrangements for care of that child – Where both parties have failed to comply with trial directions made in the proceedings – Orders made extending deadline to comply with trial directions – Adjournment granted.
Legislation:	Family Law Act 1975 (Cth) ss 60CC, 102NA
Number of paragraphs:	7
Date of hearing:	10 February 2021
Place:	Sydney by web conference
Counsel for the Applicant:	The Applicant in person
Counsel for the Respondent:	Ms Katy (amicus curiae)
Solicitor for the Independent Children's Lawyer:	Ms Foini of Legal Aid NSW Sydney Central Family Law

ORDERS

SYC 4881 of 2013

BETWEEN:

MR MUDIN
Applicant

AND:

MS BASHAR
Respondent

LEGAL AID NSW

Independent Children’s Lawyer

ORDER MADE BY:	MCCLELLAND DCJ
DATE OF ORDER:	10 FEBRUARY 2021

THE COURT ORDERS THAT:

1.This final hearing listed on 22 March 2021 is adjourned for final hearing over five (5) days commencing on 13 September 2021 at 10am.

2.The date of 7 February 2021 referred to in the Orders of 15 June 2020 is extended until 30 July 2021.

3.The matter is listed for a compliance mention on 9 August 2021 at 9.30am.

THE COURT NOTES THAT:

A.The parties should assume that the matter will proceeding in September 2021 by way of a face to face hearing.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Mudin & Bashar has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

MCCLELLAND DCJ:

1. These proceedings concern an Application by Ms Bashar (“the mother”) for an adjournment of a hearing set to commence on 22 March 2021 (“the primary proceedings”). The primary proceedings were initiated by Mr Mudin (“the father”) in respect of the parties’ child, X (“the child”). The Application is made in circumstances where the primary proceedings was set down for final hearing by orders made on 15 June 2020 for a period of 5 days.

2. The orders made on 15 June 2020 included trial directions for each party to file and serve a single updated consolidated trial affidavit by 7 February 2021 and a notation that the requirements of s 102NA of the Family Law Act 1975 (Cth) (“the Act”) applied to any cross examination of the parties at the final hearing.

3. The mother seeks this adjournment primarily as a result of the fact that, in late 2020, she gave birth to her third son. Counsel for the mother, assisting her amicus curiae, has advised the Court that the mother had experienced a difficult pregnancy and hence has had difficulty attending to the matters associated with this litigation, including applying for legal representation through the Commonwealth Family Violence and Cross Examination of Parties Scheme, in circumstances where s 102NA of the Act applied.

4. The mother has also indicated she would have difficulty in attending a face-to-face hearing in circumstances where she is breastfeeding the infant child on demand and has no other practical options available to organise care for that child and her other two children during the course of a five-day hearing. This is in the context where the mother has advised the Court, through her assisting counsel, that she does not have access to a computer at home, making it therefore impracticable for the matter to proceed by way of Microsoft Teams video web conference.

5. Having considered those matters raised by the mother, I would not have granted an adjournment of the hearing for those reasons alone.

6. I will, however, grant an adjournment in circumstances where the father has advised the Court that, at the hearing of this matter, he intends to rely on an Affidavit filed on 3 January 2019 as his trial affidavit. In no way could it be said that an Affidavit filed on 3 January 2019, which is some two years ago, is an ‘updated’ affidavit. Moreover, that Affidavit is one and one half pages in length and consists of some 19 paragraphs. The information contained in that Affidavit is insufficient and inadequate for the Court to fulfil its statutory function of having evidence from the parties that will assist the Court to determine what orders are in the best interests of the child, having regard to the criteria set out in s 60CC of the Act.

7. In circumstances where neither party is ready for hearing at this stage, and, specifically, neither party has complied with the orders made on 15 June 2020 to file a single updated consolidated trial affidavit, I grant the adjournment sought by the mother.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Deputy Chief Justice McClelland.

Associate:

Dated:       10 February 2021