Rex and Rex

[2007] FamCA 376

FAMILY COURT OF AUSTRALIA

REX & REX [2007] FamCA 376

FAMILY LAW - PRACTICE AND PROCEDURE -  APPLICATION TO ADJOURN TRIAL – Husband’s application for adjournment dismissed - Ex tempore reasons

Family Law Act 1975 (Cth)

APPLICANT: Mr Rex

RESPONDENT: Ms Rex

FILE NUMBER: ADF 95 of 2004

DATE DELIVERED: 19 February 2007

PLACE DELIVERED: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 19 February 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Ms Croydon

SOLICITOR FOR THE RESPONDENT: Croydons

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Strickland delivered this day will for all publication and reporting purposes be referred to as Rex & Rex.

Orders

1. That the husband’s oral application for an adjournment be dismissed.

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER:  ADF 95 of 2004

MR REX

Applicant

And

MS REX

Respondent

REASONS FOR JUDGMENT

1. This matter was due to commence before me today as a trial.  The husband appears in person and the wife is represented by Ms Croydon.  The matter has not commenced as yet for various reasons and I have also been trying to clarify what the issues are, what orders each party seeks, the documents relied upon and the witnesses to be called. 

2. The husband now makes an application to adjourn these proceedings out of this trial list.  He has filed no documents in relation to this application.  However, I gave the husband the opportunity to allow the matter to proceed and make the application later if he wanted to take that course, and I did that because he referred to evidence being gathered in support of his application, but he has decided to proceed with the oral application first.

3. He tells me that it is a critical time on the property that he has operated since separation.  He says that there is fruit that simply has to be picked now, and if that does not happen there will be significant losses to the parties in terms of income forgone.  He says that this is an unusual circumstance.  He did not anticipate that this would be required this week and he says it is as a result of two heatwaves and some rain which was unexpected.

4. The application is opposed and Ms Croydon has taken me to the history of this matter in terms of reaching a trial today.  In that regard it is quite apparent from the court file that this matter has been before the court for some time.  It involves both financial issues and children's issues, but credit to the parties, agreement was reached as to the children's issues and final consent orders were made in that regard on 2 February 2007.  The matter was intended to proceed to trial this week on the property settlement issues only.

5. Dawe J has been the Judge Manager of this case for some time.  In May 2006 the matter was set for trial in January 2007 with a time estimate of 9 days when both children's issues and financial issues were in dispute.  Her Honour has had this matter before her on a number of occasions since then and has made various orders in an attempt to ensure that it was ready for trial.

6. It seems that in or about September 2006 the trial date was changed from January to February as a result of an application made by the husband on the basis that he would need to be on the property at that time for the purpose of watering and harvesting the crop.  Whether he got his message across or not, he tells me that he was actually looking for more time than an adjournment from January to February, but her Honour would have heard the argument about that, if there was one.  I also do not know whether the adjournment was by consent because I cannot pick that up from the file, but in any event Her Honour made that decision to adjourn the trial to February after hearing what the husband had to say about the need to delay the hearing.

7. Thus, to repeat, that change was made in September 2006, and since then the trial date has remained fixed, namely to commence on 19 February 2007.

8. The matter came before Her Honour again on 5 December 2006, ostensibly for a pre‑trial conference, but the conference was not completed.  Her Honour adjourned the matter to 24 January 2007, when she completed the conference.

9. I am told from the bar table by Ms Croydon and, in effect, not challenged by the husband, that on 5 December 2006 the husband raised the timing of the trial and whether it could be moved, and I proceed on the basis that the same sort of reasons as to why the trial date should be moved that were put in September and that are put now were put in December, namely, the need to water and harvest the crop and ensure that it was picked, rather than left to deteriorate.

10. In any event, despite the husband’s submissions, Her Honour made the decision on 5 December 2006 to maintain the trial date on 19 February 2007.

11. On 24 January 2007 Her Honour made no change to the trial date.  I understand from the submissions today, not so much that there was a further request to change the trial date, but at that time it was apparent that the husband had not complied with orders made by Her Honour for the preparation of documents, and his excuse about that was his heavy involvement on the property, given the time of the year.  In any event, there was no order made about the trial date, and it remained fixed for 19 February 2007.

12. The matter then last came before Her Honour on 2 February 2007.  That was intended to be, as I understand it, a compliance check because Her Honour had extended the time for the filing of documents on 24 January 2007.  On 2 February 2007 the husband had still not complied with the orders to prepare the matter for trial, and his reasons for not being able to attend to that were that he had been working on the fruit block property for significant hours and he had not been able to attend to the preparation of the necessary paperwork.  Indeed, the husband filed an affidavit on 1 February 2007 which said as much.

13. I note in that affidavit that the husband also deposed to a conversation he had with the wife back in December 2006, when he says that as far as he was concerned, agreement was reached between the parties as to the property settlement issues.  He also put that forward as a reason, and a prime reason, for not attending to the documents and complying with Her Honour's orders.

14. On 2 February 2007 there was no doubt that the matter was proceeding.  No agreement had been reached between the parties and no final order was made.  There was a final order made in relation to the children's issues, but it would have been apparent to everyone, and in particular the husband, that as at 2 February 2007 the matter was still proceeding and he had not complied with the orders for preparation for trial.  Her Honour accepted his reason for that and gave him, as she described it, one last chance to get his case ready for the trial commencing on 19 February 2007, and Her Honour made self‑executing orders to the effect that if the husband did not comply with the orders then the matter would proceed on an undefended basis.

15. I note that no application was made on 2 February 2007 for an adjournment of the trial and, indeed, what has happened is that the husband has substantially complied with the orders for the filing of documents.  Subject to one or two matters, important as they may be, the case is in a sufficient state of readiness to proceed as a trial at the minute.  To repeat, the husband this afternoon has made this oral application to adjourn the proceedings.  It was not an application that was made, for example, first thing this morning when the trial was called on.  It was left until the last minute.

16. The husband did put to me at some stage during this morning that he did not realise that the matter would be proceeding as a trial this week.  I reject that entirely, and I said so at the time, and I repeat it.  There is absolutely no doubt in my mind that he was fully aware that this matter was listed for trial to commence on 19 February 2007, and that that was the purpose of the orders made on 2 February 2007, and that was the purpose of him preparing his affidavit material and complying with Her Honour's order in that regard.

17. I find it extraordinary that, with that history and that background, the husband has only now, made this oral application to adjourn these proceedings.  He has had ample opportunity, in my view, to make that application.  Indeed, 2 February 2007 was an ideal opportunity to make that application if he was disposed to.  The reasons which he now puts for suggesting there should be an adjournment, in my view, would have been apparent to him on 2 February 2007.  At the very least, if it was such an important issue and necessary for him to raise, he could have made a discrete and specific application to adjourn these proceedings (at any date between then and last Friday).  Instead he waited until this afternoon after he has made every attempt, in my view, to delay these proceedings and prevent the same commencing as a hearing. 

18. This case simply has to be heard, it is ready to proceed, and for those reasons I dismiss the application.

I certify that the preceding
18 numbered paragraphs are
a true copy of the reasons herein of the
Honourable Justice Strickland.
The 19^th day of February 2007.

……………………………………….
Associate