Pfitzner v Pfitzner

This matter concerned an application for special leave to appeal to the High Court of Australia. The applicant, Kennith Noel Pfitzner, sought an extension of time to file his application, which was approximately four days out of time. The respondent, Denese Carol Pfitzner, did not oppose the extension. The core of the dispute revolved around an application for an adjournment made by the applicant to the trial judge of the Family Court. This adjournment was sought to a date after 1 April 1989, the repayment date of a substantial liability denominated in Swiss francs. The applicant argued that fluctuations in the exchange rate and the value of assets securing the loan meant that the parties' net financial position could be more clearly determined after this date.

The legal issue before the High Court was whether the trial judge erred in refusing the applicant's request for an adjournment pursuant to section 79(5) of the relevant Act. Section 79(5) permits a court to adjourn proceedings if it is of the opinion that there is likely to be a significant change in the financial circumstances of the parties or either of them. The trial judge's reasoning, as reflected in the Full Court's judgment, was that to grant such an adjournment, there needed to be evidence of a likely increase in the value of properties or an improvement in the value of the Australian dollar. The judge considered that without such evidence, granting an adjournment would be a "considerable gamble" given the possibility of further decline in the dollar and property values.

The applicant contended that the trial judge's interpretation of section 79(5)(a) was too narrow. The applicant argued that the provision required evidence of a *likelihood* of a significant change, not necessarily evidence of a positive change. The fact that the parties' liabilities exceeded their assets, coupled with the uncertainty surrounding the foreign currency loan and asset values, was submitted as sufficient to demonstrate a likely significant change in financial circumstances, regardless of whether that change was anticipated to be an improvement or a further deterioration. The trial judge's refusal to adjourn was based on a perceived lack of evidence of a likely positive change, which the applicant argued misconstrued the statutory requirement.