Rothman & Rothman (No 3)
[2025] FedCFamC1F 297
•8 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Rothman & Rothman (No 3) [2025] FedCFamC1F 297
File number(s): SYC 8245 of 2024 Judgment of: ALTOBELLI J Date of judgment: 8 May 2025 Catchwords: FAMILY LAW – ADJOURNMENT – Procedural fairness – Where the respondent seeks an adjournment on the basis of procedural fairness – Where the applicant opposes the adjournment on the basis of costs thrown away – Where the matter was listed on two business days’ notice to the parties – Where the Court made orders adjourning the matter and reserving costs. Legislation Family Law Act 1975 (Cth) s 79 Division: Division 1 First Instance Number of paragraphs: 9 Date of hearing: 2 May 2025 Place: Sydney Counsel for the Applicant: Mr Blackah Solicitor for the Applicant: Tsui Lawyers Counsel for the Respondent: Ms Coulton Solicitor for the Respondent: O’Sullivan Legal ORDERS
SYC 8245 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR ROTHMAN
Applicant
AND: MS ROTHMAN
Respondent
ORDER MADE BY:
JUSTICE ALTOBELLI
DATE OF ORDER:
2 MAY 2025
THE COURT ORDERS THAT:
1.The matter be hereby adjourned, to return before this Court on 5 September 2025 at 10:00 am.
2.The mother is directed to attend either in person, or by way of electronic communications, on 5 September 2025 at 10:00 am, failing which the contravention application filed 11 March 2025 will proceed in her absence.
3.Any costs thrown away by the applicant as a result of today’s adjournment be reserved for consideration on the next hearing date before this Court.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Rothman & Rothman has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
ALTOBELLI J:
The matter before the Court today is an Application – Contravention (the “Contravention Application”) that was initiated by the respondent father (“the father”) in proceedings relating to two children; X born in 2017, who is seven years old, and Y born in 2020, who is four years old (collectively “the children”).
The respondent to the Contravention Application is the mother (“the mother”). The mother and the children are presently in Country B, contrary to orders of this Court made 30 January 2025 by Schonell J. She has obtained orders in a Court of the Country B, the effect of which are, it would seem, that the marriage between the parties has been dissolved, and that the children live with her.
The present Contravention Application was filed on 11 March 2025, but was not actually listed for hearing before the Court until Tuesday, 29 April 2025. The mother filed an affidavit in response on 2 May 2025, that goes to the question of whether there is a reasonable excuse. New counsel, Ms Coulton appears for the mother this morning, in the sense that the mother has had previous counsel who were not able to appear today. Ms Coulton has not had the benefit of speaking with the mother at all. The difficulty that she faces is cross-examining the father, without instructions from the mother, and particularly the inability to discuss the contents of the mother’s affidavit filed earlier today. An adjournment was sought on that basis.
The father opposed the adjournment, on the basis that the prejudice includes the costs that would be thrown away from the listing today, and the costs of further delay in these proceedings. He emphasised that the mother conceded the prima facie case and that the focus was on whether or not there is a reasonable excuse.
There are parallel proceedings in this Court in relation to alteration of property interests pursuant to s 79 of the Family Law Act 1975 (Cth) (“the substantive proceedings”). Whilst the Court can understand in some cases, it is preferable for Contravention Applications to be dealt with prior to the hearing of any alteration of property interest application, this case is different. This is in the sense that it is reasonably possible, that for as long as the mother remains out of Australia, contrary to an order of this Court, the Court can put it no higher than that, but there is a reasonable hypothesis as to how those proceedings could eventuate. It should be noted that the mother is the applicant in the substantive proceedings.
This satisfied the Court that the father suffers no prejudice by the granting of an adjournment that cannot be alleviated by the making of an order for costs in his favour. An issue for the mother is procedural fairness. It is the Court’s opinion that procedural fairness could not be extended to her, in circumstances where her counsel, even noting the experience of her counsel, has neither met her, nor conferred with her. These are matters which the Court believes are essential to conduct a cross-examination of the father.
A Contravention Application is quasi-criminal in nature. The imposition of the penalty sought by the father is a fine in the sum of $10,000. The Court, of course, is not bound by the penalty sought by the father. It is possible, therefore, that the penalty could be even more prohibitive, at least in its practical effect, if so imposed by the Court after hearing all of the evidence.
Putting those matters aside, the issue is procedural fairness, and indeed natural justice. The listing of this matter on such short notice has, in this case, prejudiced the mother’s opportunity to present her case and to test the father’s case, and accordingly, I grant the adjournment.
The Court notes with concern, that the matter was listed before me at 10:00 am, and there is no appearance by the mother. It is now 11:09 am and there is still no appearance by the mother, despite, being told from the bar table, the mother had conferred with her solicitor both earlier today and yesterday. Whilst it is not relevant to the granting of the adjournment application, it is critically important that the mother attend, in some electronic manner, on the next occasion.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the ex-tempore Reasons for Judgment of the Honourable Justice Altobelli. Associate:
Dated: 8 May 2025
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