Riemann and Riemann and Ors (No. 4) - [2017] FamCA 933

FAMILY COURT OF AUSTRALIA

RIEMANN & RIEMANN AND ORS (NO. 4)

[2017] FamCA 933

FAMILY LAW – PRACTICE AND PROCEDURE – INTERIM PROCEEDINGS – Adjournment – Where the wife sought adjournment of the interim and final hearings – Where the husband opposed those applications – Where the wife is now a self-represented litigant – Public interest consideration – Application and supporting affidavits prepared by wife’s previous lawyers – Court finds that the wife had a reasonable opportunity to be in a position to present her case at the interim hearing – Application for adjournment of the interim hearing dismissed – Where parties’ parenting dispute is outstanding – Where Court has previously ordered that the parenting proceedings be dealt with expeditiously and that both the property and parenting matters be heard and determined at the same time – Where the final hearing dates were adjourned previously – Where the parties would incur further expense if the final hearing was adjourned – Application for adjournment of the final hearing dismissed.

Allesch v Maunz (2000) 203 CLR 172
Anton & Malitsa (No. 2) [2009] FamCA 242
Aon Risk Services & Australia National University [2009] HCA 27
Gallo v Dawson (1990) 93 ALR 479
Haset Sali v SPC Ltd (1993) 116 ALR 625
Jones & National Coal Board [1957] 2 QB 55
Nabers & Nabers [2011] FamCAFC 145
Noelle & Fournier [2009] FamCA 328
State of Queensland & J L Holdings Pty Ltd (1997) 189 CLR 146

APPLICANT:

Ms Riemann

RESPONDENT:

Mr Riemann

SECOND RESPONDENT:

THIRD RESPONDENT:

Ms Lindrum

Ms Gildas

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid New South Wales

INTERVENORS:

Mr Aaron and Y Pty Ltd

FILE NUMBER:

SYC

5764

2014

DATE DELIVERED:

20 November 2017

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

McClelland J

HEARING DATE:

20 November 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT:	The Applicant appeared in person
COUNSEL FOR THE RESPONDENT:	Mr O'Ryan QC and Mr Richardson SC

SOLICITOR FOR THE RESPONDENT:

Broun Abrahams Burreket

The Second Respondent, the Third Respondent, the Independent Children’s Lawyer and the Intervenors were excused

Orders

THE COURT ORDERS THAT:

The wife’s application for adjournment of today’s hearing is dismissed.
Judgment in respect to the wife’s Application in a Case filed 11 October 2017 is reserved.
The wife’s application for adjournment of the final hearing is dismissed.
The matter remains listed for final hearing for 10 days before McClelland J commencing at 10.00am on 29 January 2018.
Leave is granted for the parties to inspect the non-privileged documents produced pursuant to the subpoena to Bridges Lawyers.
Each party has leave to issue up to 5 subpoenas.
Paragraphs 17, 18, 19 and 20 of the orders made 31 July 2017 be amended to read as follows:
17.Each of the husband and wife file and serve by 4:00pm on 18 December 2017 one affidavit setting out his/her evidence in chief for the hearing of the applications for final orders in the parenting proceedings and that the parties thereafter be permitted to rely on one affidavit only of evidence in chief in respect of the parenting matter.
18.Each of the husband and wife file and serve by 4:00pm on 18 December 2017 one affidavit setting out his/her evidence in chief for the hearing of the applications for final orders in the financial proceedings and that the parties thereafter be permitted to rely on one affidavit only of evidence in chief in respect of the financial matter.
19.Each of the husband and wife file and serve by 4:00pm on 18 December 2017 an affidavit setting out the evidence in chief of each further lay witness that each party seeks to rely on at the hearing of the applications for final orders in respect of the parenting and/or the financial proceedings.
20.Each of the husband and wife file and serve by 4:00pm on 18 December 2017 an updated financial statement.
For the purposes of paragraphs 17 and 18 above, each party be permitted to attach to the affidavits of evidence in chief, by way of annexure, any previous affidavit(s) provided that reference is made to the specific paragraphs in those affidavits that the party wishes to rely upon.

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 Riemann & Riemann and Ors (No.4) 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 SYDNEY

FILE NUMBER: SYC 5764 of 2014

Ms Riemann

Applicant

And

Mr Riemann

Respondent

And

Ms Lindrum

Second Respondent

And

Ms Gildas

Third Respondent

And

Legal Aid New South Wales

Independent Children’s Lawyer

And

Mr Aaron and Y Pty Ltd

Intervenors

EX TEMPORE

REASONS FOR JUDGMENT

This matter has been listed for hearing today for the purpose of considering an Application in a Case, filed by the wife on 11 October 2017, in which she seeks an order for a further partial property distribution. The wife is now self-represented. This is as a result of her previous lawyers, Bridges Lawyers, filing a Notice of Ceasing to Act on 9 November 2017 and, today, seeking leave to withdraw from the proceedings.
The substantive hearing of this matter has been set down for final hearing for a two week period commencing 29 January 2018. I have formally recorded my concern regarding legal advisors withdrawing from proceedings at this late stage.
Having recorded my concern, I note the submissions of Mr Levet of counsel, who had been instructed by Bridges Lawyers, that the Court cannot know the basis of instructions provided to those instructing him nor advice proffered by those solicitors. I accept that to be the case and, in those circumstances, I say nothing further about the withdrawal of those solicitors from the proceedings, save insofar as to say it is most unfortunate that it has occurred.
After making an opening statement to the Court, the wife indicated to the Court that she was not in a position to proceed with her Application in a Case and sought an adjournment of that application as well as an adjournment of the substantive hearing that has been listed for final hearing for two weeks commencing 29 January 2018.
I decline each of the adjournments for the following reasons.
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.[1]
[1] Anton & Malitsa (No. 2) [2009] FamCA 242 at [10]-[12].
Litigants, whether represented or unrepresented, should be aware that the time of a Court is a public resource 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.[2]
[2]Haset Sali v SPC Ltd (1993) 116 ALR 625.
A relevant consideration in this matter is the fact that the Court had previously set aside two weeks in June 2017 for this matter to be heard and finally determined. Those two weeks were adjourned in what remains an issue of significant controversy in the proceedings. A further two weeks have now been allocated for the final hearing which will commence on 29 January 2018.
The Courts place “considerable emphasis on the importance of dealing with cases expeditiously”.[3] 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.[4]
[3] Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 as referred to by the Full Court of the Family Court in Nabers & Nabers [2011] FamCAFC 145 at [51].
[4] Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40 at 35; Jones v National Coal Board [1957] 2 QB 55 at 67; Noelle & Fournier [2009] FamCA 328; Nabers & Nabers [2011] FamCAFC 145.
In that context, “proper consideration needs to be given to the particular disadvantages suffered by a self-represented litigant”.[5] That is not to say, however, that a self-represented litigant is entitled to any “privilege” over and above that of a represented litigant.[6]
[5] Nabers & Nabers [2011] FamCAFC 145 at [36].
[6] Gallo v Dawson (1990) 93 ALR 479 per McHugh J.
In this matter, I consider that the wife has had every opportunity to prepare her case for today. In that context, I note that the wife relies upon her Application in a Case filed on 11 October 2017, her affidavit in support of that application sworn on 10 October 2017, an affidavit of Mr II sworn 10 October 2017, and also an extract from the affidavit of Mr BB, sworn on 24 October 2017, and in particular, paragraphs 25 to 30. The wife further relies upon arguments in support of her Application in a Case which are set out in an Outline of Case Document prepared by her previous lawyers dated 24 October 2017.
I note that the solicitors for the husband have also, by email sent on 14 November 2017, advised the wife of their intention to appear in this matter with a view to the Application being finalised today.
In those circumstances, I consider that the wife has had every reasonable opportunity to be in a position to present her case today. I therefore dismiss the wife’s application for her Application in a Case filed on 11 October 2017 to be adjourned. I will reserve my decision in respect to the substantive Application in a Case.
The authorities to which I have referred, in declining the application to adjourn today’s hearing, are also relevant to my consideration of the wife’s application to adjourn the final hearing, which, as noted, is listed for two weeks commencing 29 January 2018.
Of additional relevance, in respect to those matters, is that the parties have already prepared a considerable amount of material in order for the parties to present their arguments at the hearing which was listed in June 2017. The parties have also incurred considerable expense in obtaining evidence. This includes appointing a single expert to provide valuations of property including the husband’s business interests. I accept the argument of the husband that an adjournment of the final hearing would necessitate the parties incurring additional expense as result of requiring updated valuations to be undertaken.
This is similarly the case in respect to the single expert who has been appointed to assist the Court in considering the parties’ contentions in respect to appropriate parenting orders.
Of particular significance in declining to grant the adjournment is that the single expert who has been appointed in respect to parenting matters has expressed concern regarding the interrelationship between the parties’ dispute in respect to property and its impact upon their capacity to agree to appropriate arrangements in respect to parenting.
In that respect, the wife has today confirmed that the children continue to show manifestations of stress and anxiety.
In those circumstances, I am satisfied that, consistent with orders that have previously been made, the parenting matter needs to be dealt with expeditiously. As a result of the interconnectedness between the issue of property adjustment and parenting arrangements, the parties’ dispute in respect of property also needs to be heard and determined at the same time as the Court considers parenting issues.
Accordingly, for these reasons, I also decline to adjourn the hearing which is listed for two weeks commencing 29 January 2018.
Having regard to the fact that the wife is, however, currently unrepresented, I will extend the time for the parties to file and serve their evidence in these proceedings for a further 28 days from today’s date. I will also facilitate the preparation of that evidence by permitting the parties to attach, to their single updated trial affidavit, any previous affidavits that have been prepared. That liberty is, however, subject to the updated affidavit making specific reference to the relevant paragraphs of those previous affidavits that the parties intend to rely upon at the final hearing.
For all these reasons I make the orders as set out at the commencement of these Reasons for Judgment.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McClelland delivered on 20 November 2017.

Associate:

Date: 28 November 2017.