Pachris & Tajir (No 2)

[2023] FedCFamC1A 229

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Pachris & Tajir (No 2) [2023] FedCFamC1A 229

Appeal from:	Pachris & Tajir (No 2) [2022] FedCFamC2F 1296
Appeal number(s):	NAA 232 of 2022
File number(s):	PAC 3726 of 2021
Judgment of:	ALDRIDGE J
Date of judgment:	13 December 2023
Catchwords:	FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Applicant seeks adjournment until after criminal proceedings finalised – Applicant submits appeal will prejudice his criminal proceedings – No further cross-examination or re-examination on appeal – But for an application to adduce further evidence the appeal would already have been heard – Other parties entitled to have the appeal heard expeditiously – Not in the best interests of the children to grant a further adjournment – Application refused.
Number of paragraphs:	16
Date of hearing:	13 December 2023
Place:	Sydney
The Applicant:	Litigant in person
Counsel for the Respondent:	Ms Tabbernor
Solicitor for the Respondent:	Santo Family Lawyers
Counsel for the Independent Children's Lawyer:	Ms Conte-Mills
Solicitor for the Independent Children's Lawyer:	Harb Lawyers

ORDERS

NAA 232 of 2022
PAC 3726 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR PACHRIS

Applicant

AND:

MS TAJIR

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	ALDRIDGE JJ
DATE OF ORDER:	13 DECEMBER 2023

THE COURT ORDERS THAT:

1.The application for an adjournment is refused.

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).

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

EX TEMPORE
REASONS FOR JUDGMENT

ALDRIDGE J:

1. Listed before the Court today is the hearing of an appeal against parenting orders made by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 28 September 2022. That is some 15 months ago. The applicant, who is acting for himself today because earlier this morning his solicitors were given leave to withdraw because their instructions had been withdrawn, seeks an adjournment of the appeal until after his criminal proceedings are concluded. That is not likely to be before November 2024, although the applicant does not know the exact date on which the trial is likely to be held.

2. In order to understand the application, it is necessary to set out a short amount of background material.

3. One of the key issues determined by the primary judge was a sexual interaction that took place between the parties, which the respondent asserted was anal intercourse without her consent. There was in evidence a recording of that event which was viewed by the primary judge, although it is necessary to record that it was but an excerpt of a significantly longer video which was not available at that time.

4. In the course of the hearing before the primary judge, the applicant was cross-examined about the events depicted on the video and the video itself.

5. Subsequently the applicant has been charged with a criminal offence arising out of those circumstances. That offence was due to be heard in November this year but has now been adjourned.

6. Part of the brief of the evidence for the criminal trial served on the solicitors acting for the applicant in the criminal proceedings was the entire video of the event in question, some 20 minutes long. Much of this year has been taken up by applications by the Office of the Director of Public Prosecutions seeking to object to the production of the video.

7. Ultimately the video was produced and inspected by the lawyers for the applicant. As a result of them viewing the video, the application to adduce it as further evidence in the appeal was discontinued, hence the matter is listed for hearing today.

8. The applicant seeks an adjournment of the appeal until after the hearing of the criminal proceeding because he submits that the appeal will prejudice, in some way, his criminal proceeding.

9. I do not understand how that could be the case given that he has already been cross-examined by the other party to the proceeding and the Independent Children’s Lawyer (“the ICL”) on the video and the events it depicts.

10. It is true that he was not re-examined on that issue by his counsel. That was a forensic decision that was made at the time.

11. However, in any event, there will be no further evidence on the hearing of the appeal, either by way of cross-examination or re-examination, so it is difficult to see how that is a relevant consideration.

12. The orders in relation to the children who are now eight and six years old, so still relatively young, were made on 28 September 2022. A Notice of Appeal was filed on 24 October 2022. Lawyers acting for the applicant filed an Amended NOA on 11 January 2023 and a Summary of Argument on the same date.

13. But for the application to adduce further evidence and the adjournments that it necessarily caused, the appeal would have been heard and determined in April this year.

14. The applicant has been given every opportunity to bring applications to adduce what further evidence he wishes to bring in the appeal. The present position is that there is no application to do so. It would not be in the interests of justice for him to be given yet another opportunity to do that. Interests of justice is a two way street and the respondent and ICL are ultimately entitled to have the appeal heard and determined expeditiously.

15. I also consider that it would not be in the best interests of the children to have the threat of appeal hanging over the parenting orders for at least another year.

16. The application for an adjournment is refused.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Aldridge.

Associate:

Dated:       18 December 2023