Reynolds and Barbera

[2011] FamCA 815

FAMILY COURT OF AUSTRALIA

REYNOLDS & BARBERA [2011] FamCA 815

FAMILY LAW – PRACTICE AND PROCEDURE – application by the father seeking an adjournment of the trial due to the unavailability of his preferred counsel – where there has been ample opportunity to raise issues relating to counsel on previous occasions – where the Court was satisfied that there would no prejudice caused to the father in declining his application for an adjournment – application dismissed.

Family Law Act 1975 (Cth)

APPLICANT: Mr Reynolds

RESPONDENT: Ms Barbera

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission

FILE NUMBER: MLC 7288 of 2007

DATE DELIVERED: 14 October 2011

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

EX TEMPORE JUDGMENT OF: Burr J

HEARING DATE: 14 October 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Ms Taylor
SOLICITOR FOR THE APPLICANT:	Mellor Olsson

COUNSEL FOR THE RESPONDENT:	MS Basheer
SOLICITOR FOR THE RESPONDENT:	R G Eckermann & CO

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Mr McGinn
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Legal Services Commission

ORDERS

1. That the father’s Application in a Case filed on 13 October 2011 be dismissed.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: MLC 7288 of 2007

Mr Reynolds

Applicant

And

Ms Barbera

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. I have before me today an Application in a Case filed yesterday in which the father seeks an adjournment of these proceedings from the Special Sittings of this Court due to commence on Monday next, 17 October 2011.  He has filed an affidavit in support and in it his reasons for seeking the adjournment are that his Counsel of choice, Ms O’Connor, is unavailable to continue with the proceedings in the second week of the fortnight’s special sittings, namely from 24 October 2011.  The reason that she is not available is because she is appearing in this Court before Stevenson J from the Sydney Registry in a quite protracted part-heard matter.

2. Whilst the Court does its best to accommodate parties in their choice of Counsel, it is not always possible to do so and in this matter it is my view that such an application must fail as the application has no justification whatsoever for a variety of reasons.

3. The Initiating Application was filed by the mother almost four years ago on 18 December 2007 and it was accepted into the Court’s Magellan Project just a few days later on 21 December 2007.  The matter was delayed for a lengthy period as there were a number of criminal charges laid against the father.  All of those criminal charges were resolved finally in his favour in May 2011 and I then ordered an updated Family Assessment and report which was released in July 2011.  On 25 July 2011 I referred the matter to the Magellan Registrar for general trial preparation, mention and directions with a view to the trial proceedings being listed during the Special Sittings of the Court to be conducted over three weeks commencing on Monday 10 October 2011. 

4. That reference to the Magellan Registrar was now almost three months ago.  There was a directions hearing before the Magellan Registrar on 3 August 2011, well over 2 ½ months ago, and general trial preparation directions were given.  The matter was then referred to my call over of all of the matters included in the Special Sittings set for 9.30 am on 6 October 2011.  I called the matter over at that time and I listed it as not before Wednesday 12 October 2011. 

5. At the call over I was advised by the solicitor for the mother that her Counsel of choice (Ms Dickson) would not be available on 20, 21 and 24 October 2011.  I intimated at that time that regrettable though it might be, the mother would be obliged to brief alternative Counsel as the Court had gone to great lengths to secure the assistance of interstate Judges in order to conduct special sittings and hear a number of matters which required resolution as promptly as possible.  In fact, the Court was also advised at that call over by Ms Taylor (for the father) that the father’s Counsel of choice would not be available on Monday and Tuesday of this week, 10 and 11 October 2011 and so accommodation was given in that regard by listing the matter as not before Wednesday of this week.

6. It is for a long period of time that the solicitors, the parties and indeed Counsel have been aware of the Special Sittings that were to be listed in this Court in the month of October and have had ample opportunity on previous interlocutory occasions to indicate that there was to be a problem with Counsel.  That is even more the case with Ms O’Connor as the matter in which she appears before Stevenson J now on a part-heard basis was last heard by her Honour on 19 May 2011 and at that time Stevenson J adjourned the matter part-heard to resume before her in the week commencing 24 October 2011.  Thus Ms O’Connor was certainly aware of her unavailability for that week as early as 19 May 2011, some 5 months ago.

7. Thus, as I said, whilst the Court does its best to accommodate Counsel of choice I am satisfied that the application for an adjournment out of the list ought to be refused.  Both Cronin J from the Melbourne Registry and I are likely to be able to commence the trial of these proceedings on Wednesday or Thursday of next week.  The Court has gone to a great deal of trouble and expense in order to arrange these sittings and I am satisfied that no prejudice will flow to the father in declining his application for adjournment.  Adelaide is blessed with many competent Counsel and he will be able to secure such Counsel, I am confident, in the period of time that remains before the trial of these proceedings will commence.  The mother has been able to do so, having been informed that the Court was not willing to adjourn the matter out of the special sittings just because her Counsel of first choice was unavailable.

I certify that the preceding seven (7) paragraphs are a true copy of the Ex tempore reasons for judgment of the Honourable Justice Burr delivered on 14 October 2011.

Associate: 

Date: