Pullman and Garafolo

[2019] FamCA 467

FAMILY COURT OF AUSTRALIA

PULLMAN & GARAFOLO [2019] FamCA 467

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournments – Application of the mother for an adjournment of a hearing listed for five days – Application dismissed.

APPLICANT: Ms Pullman

RESPONDENT: Ms Garafolo

INDEPENDENT CHILDREN’S LAWYER: Ms Macgregor

FILE NUMBER: (P)MLC 6923 of 2017

DATE DELIVERED: 10 July 2019

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: McEvoy J

HEARING DATE: 10 July 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Farr

SOLICITOR FOR THE RESPONDENT:

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Macgregor

Orders

1. The Respondent Mother’s application to adjourn the hearing listed before the Honourable Justice McEvoy to commence on 25 August 2019 be dismissed.

2. The time for compliance with the trial orders of the Honourable Justice Johns made 2 May 2019 be extended as follows:

   (a)by 4:00pm on 7 August 2019 the Respondent Mother file and serve upon all other parties:

   (i)an amended response setting out with precision what orders are being sought;

   (ii)the affidavits of evidence in chief of all witnesses including the Respondent relied upon (noting that affidavits relied upon for previous hearings cannot be relied upon as evidence in chief);

   (iii)a financial statement that complies with chapter 13 of the Family Law Rules.

   (b)by 4:00pm on 14 August 2019 the Independent Children’s Lawyer file and serve upon all other parties any affidavits of evidence to be relied upon;

   (c)by 4:00pm on 20 August 2019 the Applicant Father file and serve upon all other parties any affidavits of evidence in reply to the affidavits of the Applicant relied upon;

   (d)       if a party takes objection to any evidence of another party:

   (i)any objection be taken no later than 22 August 2019 by service of written notice on the solicitor for the other party; and

   (ii)the party so served shall notify the objecting party in writing no later than 23 August 2019 of which objections so taken are the subject of agreement and which require determination. 

   (e)by 4:00pm on 23 August 2019 the practitioners for the parties file and serve electronically to …the following:

   (i)a concise set of orders to be sought if different from those already filed;

   (ii)a list of the applications and affidavits to be read and, if not the whole affidavit, the relevant paragraphs relied upon;

   (iii)a list of assets and liabilities;

   (iv)a list of objections to evidence upon which rulings are required; and

   (v)a bullet-point summary of argument in relation to the issues in dispute.

3. Any further application for interim orders is to be made to the chambers of the Honourable Justice McEvoy.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

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 r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: (P)MLC 6923  of 2017

Ms Pullman

Applicant

And

Ms Garafolo

Respondent

REASONS FOR JUDGMENT

1. This is an application of the mother dated 3 July 2019 for an adjournment of the hearing of this proceeding listed for five days commencing on 26 August 2019.  This application was listed for hearing and directions on 9 July, that is to say, yesterday, and the parties were notified accordingly.  The mother did not attend the listing yesterday, not having received notification of it by email, she said.  However, she was able to be reached by telephone and she made submissions in support of her application yesterday.

2. The grounds for an adjournment identified by the mother were essentially that her Legal Aid solicitor had ceased to act.  She said that she had spoken to three solicitors by telephone, although this morning she tells me that she has, in fact, spoken to eight solicitors by telephone and has had appointments with three of them.  The mother’s evidence is that none of the solicitors with whom she has consulted are able to take the matter if it remains listed on 26 August 2019, but that one of them has said that, were the matter to be relisted until October 2019, that would be feasible.

3. The mother has not given any evidence as to the reason her existing solicitors have ceased to act.

4. The proceeding itself is the father’s application for sole parental responsibility and to have the child, aged five, live with him and for the child to have only telephone contact with the mother for three months.  The father is presently seeing the child once a week during the day for supervised time in circumstances where the mother has made allegations of sexual abuse.

5. The father opposes the grant of the adjournment and points to a history of the mother seeking adjournments.  The mother takes issue with this characterisation insofar as her previous applications for adjournments are concerned. After argument yesterday I offered the parties alternate dates in October.  These dates, however, are not suitable to the father’s solicitor, who operates what he says is effectively a sole practice in Suburb B. Were the matter to be re-listed to dates in October, the necessary consequence would be that the father would need to obtain a new solicitor, and there would be cost and inconvenience occasioned thereby.

6. I am not prepared in those circumstances to adjourn the matter to the dates in October because it would seem to me that such an adjournment would be unduly prejudicial to the interests of the father.

7. I indicated to the mother yesterday that the next available date would be in late November, and that a date that was that far out from 26 August of this year would introduce an element of unfairness to the father unless the present access arrangements which were in place were somehow enlarged, and I stood the matter down for the parties to have some discussion in relation to those matters.

8. Upon resumption of the matter yesterday the mother had agreed essentially to give the father two additional days between now and the end of November, and to slightly enlarge the period of time during the day on the relevant days that the child would be with the father.  The father opposed this offer on the basis that it was not sufficient time for him. In these circumstances, I indicated to the parties yesterday, and in particular to the mother, that she had a choice.  On the one hand she could have no adjournment in August, but the indulgence of a further month or so to find a new solicitor and to prepare her material, and, on the basis of that extension of time, the hearing would proceed as listed on 26 August.

9. Alternatively, there could be an adjournment until November, but there would need to be some liberalised access regime under the supervision of the father’s mother or father as appropriate between now and then.

10. I stood the matter down yesterday and adjourned the application until today at 11:00am.

11. I am informed this morning by the parties that they have not been able to come to agreement in respect of any further time between now and November.

12. In these circumstances, and having regard to the seriousness of the mother’s allegations and the father’s initiating application, I am not inclined to grant the mother’s application for an adjournment. I will therefore dismiss her application in that regard.

13. I will, however, hear the parties in relation to consequential orders. What I contemplate is that there be, as I have indicated, an extension of time for the mother to file her material, and, if she is able, to obtain new solicitors to assist her in that process.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McEvoy delivered on 10 July 2019.

Associate: 

Date:  17 July 2019