Rimac & Rimac (No. 3)
[2021] FamCA 263
•3 May 2021
FAMILY COURT OF AUSTRALIA
Rimac & Rimac (No. 3) [2021] FamCA 263
File number(s): SYC 1540 of 2014 Judgment of: MCCLELLAND DCJ Date of judgment: 3 May 2021 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Adjournment – Where an Application for an adjournment is made on the first day of hearing, following cross examination commencing – Where any adjournment would be a prejudice to the wife – Application dismissed. Number of paragraphs: 13 Date of hearing: 3 May 2021 Place: Sydney Counsel for the Applicant: Mr Livingstone Solicitor for the Applicant: Taylor Counsel for the Respondent: Mr C Rimac, with leave of the Court
SYC 1540 of 2014 BETWEEN: MS RIMAC
Applicant
AND: MR RIMAC
Respondent
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 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Rimac & Rimac has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
McClelland DCJ:
This decision concerns an Application by Mr Rimac (“the husband”) for an adjournment of the final hearing of the Application for Final Orders in respect of property distribution filed by Ms Rimac (“the wife”). This Application is made in the following circumstances:
(a)The matter is currently before the Court for final hearing;
(b)As will be detailed below, the matter has been adjourned on numerous occasions, to the prejudice of the wife, to facilitate the husband recovering form health issues and to facilitate the husband obtaining legal representation or, at the very least, participating in these proceedings by filing relevant material that he wishes to rely upon; and
(c)Mr C Rimac, who is representing his brother, the husband in these proceedings, is in the middle of cross examination of the wife.
In this matter, shortly after the morning tea adjournment, I specifically requested the husband to consider an offer of settlement made by the wife which was in the form of the orders proposed by the wife. Those proposed orders were served upon the husband in September of last year, 2020. For clarity, an additional copy was provided to the husband at the commencement of these proceedings. The orders sought by the wife were declared to be also in the nature of a formal offer of settlement.
At 11.30 am this morning, I adjourned the proceedings to enable the husband to have some time to consider that formal offer of settlement. The Court has resumed at 2.00 pm, at which time the husband has made an Application to adjourn the proceedings for a period of 12 months. For the following reasons, I reject that Application.
On 2 March 2020, the matter came before me in a call over and on that occasion the husband did not appear. I consequently made orders adjourning the matter for a period of five (5) weeks, to 9 April 2020, for the purpose of the Court hearing from the husband as to the reason for his non-attendance. The husband was given notice in those orders that the Court would consider the matter proceeding on an undefended basis if he did not appear on the next occasion.
On 9 April 2020, following a further non-attendance by the husband, the matter was set down for an undefended hearing over two (2) days commencing on 12 August 2020. This was despite email notifications being sent to the husband to an email address which he identifies as one that he currently uses although, he attests, that he rarely accesses.
On 12 August 2020, the husband appeared before the Court by telephone and sought that the matter be adjourned. I acceded to the husband’s application by adjourning the proceedings for mention, for a period of six (6) weeks, on 24 September 2020 and set the matter down for a defended hearing commencing on 24 November 2020 over four (4) days. I delivered my reasons for judgment in respect to this issue on 18 August 2020 ([2020] FamCA 675).
On 24 September 2020, the matter came before me for mention. On that occasion, I adjourned the proceedings for a further three (3) weeks to enable to the mention to proceed in person.
On 16 October 2020, I heard the husband’s Application in a Case seeking various orders including, inter alia, an application for an adjournment of the final hearing in November.
On 2 November 2020, I delivered my decision in respect to the husband’s Application in a Case and made orders for the matter to be adjourned for a period of six (6) months, and set down for a final hearing over five (5) days commencing on 3 May 2021 at 10am. The Reasons for Judgment delivered on that date ([2020] FamCA 919) noted that, in indulging the husband and at a prejudice to the wife, the proceedings were adjourned for a period of six (6) months from 21 August 2020, being the period of time that the husband’s general practitioner certified was a period during which the husband would be unable to properly conduct legal proceedings.
On 21 April 2020, just over a week prior to the final hearing, the husband inappropriately emailed to my Chambers correspondence which essentially sought to make an Application for a further adjournment of the May 2021 final hearing dates. The matter was subsequently listed for hearing last Monday, 26 April 2020.
On 26 April 2020, the matter was listed at 9.15 am and called. There was no appearance by the husband, despite the matter being called three (3) times outside the body of the Court. At approximately 9.40 am, the husband arrived with his brother, Mr C Rimac. His brother indicated, at that time, that the husband was in a position to proceed at the hearing commencing on 3 May 2021 providing that the husband was represented by his brother. In an endeavour to avoid any further adjournment, the solicitor for the wife consented to that arrangement.
The proceedings have commenced today on the basis of Mr C Rimac, the husband’s brother, representing him in the proceedings.
In summary, given this procedural history and the length of time that this matter has been in the hearing list, together with the indulgences that have been extended to the husband, and in the context where, in my view, without predetermining issues, the wife has acted in good faith and has endeavoured to resolve this matter: I decline the Application for an adjournment.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Deputy Chief Justice McClelland. Associate:
Dated: 3 May 2021
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