Muster & Muster (No 2)
[2024] FedCFamC1F 617
•12 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Muster & Muster (No 2) [2024] FedCFamC1F 617
File number(s): SYC 1908 of 2020 Judgment of: GILL J Date of judgment: 12 September 2024 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Where the wife seeks to vacate the final hearing due to limited availability of the expert and unavailability of her preferred counsel – Where final hearing in the matter has been previously adjourned and there is reason for it to be completed as quickly as possible – Counsel unavailability not an adequate reason to vacate this hearing Division: Division 1 First Instance Number of paragraphs: 5 Date of hearing: 12 September 2024 Place: Canberra Solicitor for the Applicant: Ms McKay, Bay Legal Solicitor for the Respondent: Ms Vincent, Watts McCray ORDERS
SYC 1908 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR MUSTER
Applicant
AND: MS MUSTER
Respondent
ORDER MADE BY:
GILL J
DATE OF ORDER:
12 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.The Application in a Proceeding filed by the wife on 6 September 2024 is dismissed.
2.The evidence of the single expert is to be given from 10 am on 12 December 2024.
3.In the event that it is sought that the single expert give evidence otherwise than in person, then such application is to be made no later than 14 days prior to the commencement of the trial.
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).
EX TEMPORE REASONS FOR JUDGMENT
GILL J
The wife applies for the vacating of the currently allocated three days of trial time in December 2024. This occurs in a context where the matter was previously listed for trial earlier in the year but vacated at the last moment due to the husband’s ill health. As part of that vacating and lack of preparation to be ready for the trial at that point, the husband was ordered to pay the costs thrown away by the wife. Those costs were paid at a level which, although it did not advance the wife’s cause, further ensured that she did not fall behind as result of the vacating of those dates. Application is now made to vacate the dates on two bases. The first relates to the unavailability of preferred, and previously retained, counsel for the wife. The second relates to limited availability of the expert.
As to the first matter, it was advanced that there may be a financial saving to the wife by the retention of previously engaged counsel. I am unable to gauge the extent to which there may be such a saving or if there will be such a saving at all.
It is to be noted that one of the matters at issue in this trial is a shortened life expectancy of the husband, which on one reading of the single expert’s report may indicate as little as a further 12 months to live. Under those circumstances, it seems imperative that the trial be completed as quickly as possible. That is a matter that tells against the trial being adjourned for the purpose of retaining counsel, particularly when it is not known when the matter might be able to be brought back for trial.
As to the second matter, the single expert is available, I am told, on day one and in the morning of day two of the trial. It is anticipated that cross-examination of the husband will have been completed on day one. The availability of that single expert can be adequately catered for by interposition of that single expert on the morning of day two. That is a matter for the management of the trial as the trial unfolds.
Accordingly, the trial will not be adjourned.
I certify that the preceding five (5) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 24 September 2024
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