Pavlic & Pavlic
[2022] FedCFamC2F 513
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Pavlic & Pavlic [2022] FedCFamC2F 513
File number(s): MLC 6470 of 2020 Judgment of: MCCLELLAND DCJ Date of judgment: 21 April 2022 Catchwords: FAMILY LAW – PROPERTY – Application to adjourn proceedings – Application to extend time to file material – Where the respondent’s solicitors have withdrawn their representation – Overarching purpose – Adjournment application dismissed – Application to extend time to file material granted – Costs reserved. Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) s 100 Cases cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Gadde & Gadde [2015] FamCA 617
Hart v Deputy Commissioner of Taxation [2016] FCA 50
Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75
Division: Division 2 Family Law Number of paragraphs: 11 Date of hearing: 21 April 2022 Place: Sydney (via videolink) Counsel for the Applicant: Mr McIvor Solicitor for the Applicant: Coote Family Lawyers The Respondent: Self-represented litigant ORDERS
MLC 6470 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR PAVLIC
Applicant
AND: MS PAVLIC
Respondent
ORDER MADE BY:
MCCLELLAND DCJ
DATE OF ORDER:
21 APRIL 2022
THE COURT ORDERS THAT:
1.The respondent’s application for an adjournment of the final hearing is dismissed and the matter remains listed for final hearing for three days, commencing 11.30 am on Tuesday 26 April 2022.
2.The period of time specified in Order (3) of the orders made on 21 February 2022 for the respondent to file material is extended until 4 pm on Monday 25 April 2022.
3.The issue of costs in relation to this hearing is reserved.
THE COURT NOTES THAT:
A.The Court may consider any subsequent applications that may be necessary in the event of the applicant requiring more time to consider the respondent’s material.
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 Pavlic & Pavlic has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
MCCLELLAND DCJ:
This matter has been listed before me today to consider an application by Ms Pavlic (“the respondent”) for an adjournment of next week’s proceedings listed between 26 and 28 April 2022. The proceedings were originally commenced by Mr Pavlic (“the applicant”) on 19 June 2020 in the then Family Court of Australia. The matter was subsequently transferred to Division 2 or, in those days, the Federal Circuit Court and is currently listed in Division 2 of the Federal Circuit and Family Court of Australia.
On 23 and 25 November 2021 respectively, the applicant and the respondent both filed certificates of readiness indicating that they were ready for the matter to proceed to a case readiness hearing. The matter was subsequently listed for a compliance and readiness hearing on 30 November 2021, at which time orders were made for the matter to be listed for hearing for three days, commencing 26 April 2022. The matter was subsequently listed for a further compliance and readiness hearing on 21 February 2022. On that day, the parties indicated that they were ready for the matter to proceed to final hearing and those hearing dates in April 2022 were confirmed.
Orders were made on 21 February 2022 for the applicant to file and serve material upon which he intended to rely by 5 April 2022. He has done so. The orders also provided for the respondent to file and serve her material by 12 April 2022. The respondent has advised the Court that, on 12 April 2022, she received a letter from her then solicitors advising that, unless she placed them in funds or provided security over her property, they would cease acting for her. Accordingly, in circumstances where she was not prepared to provide that security or raise the required funds, the respondent has determined that it is necessary for her to be self-represented. On that basis, the respondent has advised that she has not had the time that is necessary, between 12 April 2022 and now, to prepare her affidavit responding to the applicant.
While unfortunate, the basis upon which the respondent seeks the adjournment is not, in my view, a sufficient ground. Having regard to this issue, I set out the relevant principles of granting an adjournment in the case of Gadde & Gadde [2015] FamCA 617 at [18]–[22]:
In State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146, Kirby J discussed why an adjournment application requires a balancing exercise to be undertaken. That exercise involves consideration of the resources of the Court, its rules and its management and also the need to consider justice for both parties.
Litigants, whether represented or unrepresented, should be aware that the time of a court is a public resources which must be managed effectively in the interests of not only the immediate litigants but also in the interests of other litigants waiting for their matters to be listed for hearing.
In that context, courts place “considerable emphasis on the importance of dealing with cases expeditiously”.
However, it is a fundamental principle of justice that a person appearing before a court of law is given the opportunity of presenting material and making submissions relevant to issues being considered by the court before a decision is made by that court.
In that context, “proper consideration needs to be given to the particular disadvantages suffered by a self-represented litigant”. That is not to say, however, that a self-represented litigant is entitled to any “privilege” over and above that of a represented litigant.
(Citations omitted)
Also of relevance is a useful summary provided in the decision of Edelman J in Hart v Deputy Commissioner of Taxation [2016] FCA 50 (“Hart”), in which his Honour refers to Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75 at [42], which states:
In considering an application for an adjournment, issues particular to the parties and the circumstances of the case must be considered. The Court must also determine how the grant or refusal of an adjournment will promote the overarching purpose of the civil practice and procedure provisions governing the exercise of its jurisdiction, here its appellate jurisdiction, including the objectives in s 37M(2) of the FCA Act…
That s 37M(2) is replicated in s 100 of the Federal Circuit and Family Court of Australia Act 2021 (Cth), which sets out the overarching purpose and includes the objective of matters being resolved according to law and as quickly, inexpensively and efficiently as possible. Significantly, in interpreting the rules of the Court in the Central Practice Direction, the Court is required to have regard to that overarching purpose, including the impact not only on the litigants before the Court, but also on the discharge of the business of the Court generally and the impact on other matters.
In this case for instance, if there was an adjournment, the Court at this stage would be unlikely to have another matter available to occupy the three days next week that would otherwise be set aside. Further, it would be necessary for this matter to be adjourned for some months to come, given my judicial commitments and also, from my knowledge, that of other judges. Necessarily, the further listing of this matter would mean that another matter could not be listed at that time.
By way of summary, I return to Hart where Edelman J summarised four considerations and, in doing so, had regard to the decision of the High Court in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 as follows at [7]:
… Four matters which should have been taken into account when discretion was exercised to grant an adjournment. Those matters were:
(1)The explanation for the adjournment sought;
(2)The detriment to the other parties;
(3)The detriment to other litigants in the Court; and
(4)The parties’ choices to date in the litigation as to the claims to be made and how they were to be framed.
In dealing with those matters, I note that I have already dealt with the third item, that is, the detriment to other litigants in the Court. I have also dealt with the first item, being the explanation for the adjournment. In that regard, as I have said, the circumstances relayed by the respondent in this matter regarding her former lawyers insisting that they be placed in funds is regrettable, as is the circumstances where the lawyer with conduct of the matter moved to another office and the solicitor assigned to work on her file had only been recruited a day or so before the affidavit was due. While those circumstances, in my view, would justify the respondent applying for an extension of time to file her affidavit, they do not in and of themselves justify the matter being adjourned when balanced against the interests of the business of the Court generally and other litigants before the Court.
Finally, in terms of the parties’ choices to date in the litigation, the applicant has, in his affidavit filed 5 April 2022, in substance contended that the respondent has not to date been prepared to participate in settlement negotiations in good faith, where it is alleged that the respondent failed to make a formal offer of settlement within the time required and, when such an offer was made, it was kept open for a period of only 24 hours. In this decision, I do not wish to determine the circumstances in which those negotiations occurred and whether that was the case. In other words, I am specifically refraining from dealing with those considerations for the purpose of considering this adjournment application. Those issues may, of course, become live issues in the event of an application for costs at the conclusion of the proceedings. However, it is presently unnecessary to determine the substance of those allegations by the applicant and their consequences.
Having regard to the first three items, the respondent has failed to satisfy me that there is a justifiable reason for the adjournment. However, having regard to the circumstances relayed to me by the respondent with respect to difficulties she has faced in dealing with her previous solicitors, I am satisfied that the respondent should be entitled to an additional period of time in order to prepare her affidavit material. On that basis, I make orders as set out at the commencement of these reasons.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Deputy Chief Justice McClelland. Associate:
Dated: 21 April 2022
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