TIERNAN & TIERNAN

[2010] FamCA 382

FAMILY COURT OF AUSTRALIA

TIERNAN & TIERNAN [2010] FamCA 382

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournments – Question of prejudice and natural justice – Part-heard
FAMILY LAW – COSTS – thrown away

Family Law Act 1975 (Cth)

APPLICANT: Ms Tiernan

RESPONDENT: Mr Tiernan

THIRD PARTY: B Tiernan

FILE NUMBER: MLF 2364 of 2006

DATE DELIVERED: 17 February 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Mushin J

HEARING DATE: 15,16 & 17 February 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Stewart on 15 February 2010 and 16 February 2010 until the lunch break, the applicant in person on 16 February 2010 from after the lunch break & 17 February 2010

SOLICITOR FOR THE APPLICANT: Morrison & Sawers (until 16 February 2010)

COUNSEL FOR THE RESPONDENT: Mr Sweeney

SOLICITOR FOR THE RESPONDENT:	Mills Oakley Lawyers Pty Ltd
COUNSEL FOR THE SECOND RESPONDENT:	Ms Gordon

SOLICITOR FOR THE THIRD PARTY: Andrew Spilva Stewart & Co.

IT IS ORDERED THAT

1. All applications be adjourned part-heard before Justice Mushin on a date to be fixed by the Docketed Registrar in consultation with the parties but not before 6 April 2010.

2. No later than 4:00pm on 1 April 2010 the wife pay costs thrown away as a result of this adjournment as follows:

   a.to the husband’s solicitors in the sum of $8624; and

   b.to the third party’s solicitors in the sum of $3000.

IT IS NOTED that publication of this judgment under the pseudonym Tiernan & Tiernan is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:        MLF 2364 of 2006

MS TIERNAN

Applicant

And

MR TIERNAN

Respondent

And

B TIERNAN

Second Respondent

REASONS FOR JUDGMENT

1. Property proceedings commenced between the parties before me by way of final trial two days ago.  The proceedings arise out of the breakdown of the relationship between the husband and the wife.  In addition, one of the sons of the parties is a party to the proceedings by way of application by the wife against that son seeking the setting aside of a transaction whereby it is alleged that the husband disposed of property, being a business, to him.  The parties appear to have conducted a farm, sometimes described as a hobby farm, in the northern Victoria area.  While the size of the pool has not been determined, it would appear that it may be a little either side of $1 million net.

2. The biggest single asset is the farm.  As well as the questions of distribution of property there is a fundamental issue between the parties as to who is to retain the farm.  I have indicated that in those circumstances I will also consider requiring the farm to be sold with the net proceeds of such sale to be divided in accordance with the ultimate orders of the Court. 

3. From early in this trial it became clear that the dispute between the parties involved a degree of bitterness and antagonism, which is more usually associated with child cases than with property cases.  The trial is being conducted on the basis of material on all sides of which I am extremely critical;  I have already struck out some of that material.

4. After the lunch break yesterday counsel for the wife informed me that she had been instructed by her solicitor that as the wife was not able to provide security for their costs and disbursements of conducting the trial on her behalf, they were applying to withdraw from acting for her.  Having heard from all parties I gave leave accordingly.  The wife then commenced representing herself and I gave her until 10 o’clock today to consider her position.  I warned her that she should not simply assume that if she came along here today unrepresented I would automatically give her an adjournment, but by the same token I am clearly obliged to consider such application, which has now been made by the wife.

5. The wife has informed me that she proposes approaching members of her family to see if she can obtain finances to instruct other lawyers as she concedes that she does not feel able to conduct the proceedings on her own behalf.  In those circumstances, particularly if any prejudice to the other parties – being the husband and the son who has been joined as a second respondent – is not such which cannot be overcome by an order for costs, natural justice would usually require that an adjournment be granted.  In the context of these proceedings that is not quite as clear as it might otherwise be, and becomes even less clear in circumstances in which I have been informed by the husband’s counsel that were an adjournment to be granted, it is possible that the husband may not be able to continue legal representation and may be left in a position of representing himself.

6. It would indeed be an irony were a resumed hearing to be conducted on the basis of the wife being represented and the husband being unrepresented.  No submission of that sort has been made to me on behalf of the second respondent.  I am finding this a particularly difficult decision to make because of the problems in balancing competing elements of the fundamental requirement of affording all parties before the court natural justice.  On the one hand, the wife now being unrepresented should, it could be argued, be given an adjournment to enable her to attempt to obtain representation.  On the other hand, the husband (and the son) is already involved in part-heard proceedings, is entitled to have the applications heard and determined, and may have the added burden of not being able to be completely or at all represented on the resumption of a part-heard trial.

7. The submission on behalf of the second respondent is simply that he wants to proceed, as again is his entitlement, particularly in circumstances where, although he is a member of the family which is bitterly divided, he is strictly a third party to the proceedings and is especially entitled to a hearing in determination of the matters before the court. 

8. I must decide between those balances and in circumstances in which the balance is so extremely tight, I have decided in favour of the adjournment.  It is not something that I do readily, but I make it quite clear to the wife that in giving her that opportunity it is extraordinarily unlikely that there would be another opportunity.

9. I have expressed to her significant reservations about the way the case is being conducted, but of course given that the proceedings are part-heard, they are matters on which I can have no more than a tentative view at this stage.  I am not happy with the decision but believe it is appropriate in the interests of access to justice.  I rule accordingly.

10. Having granted an adjournment, I now have an application for costs in the sum of $8624 on behalf of the husband and $3000 on behalf of the second respondent. In my view both those figures are reasonable.  In the circumstances in which the adjournment has been brought about by events which are completely outside the control of both the husband and the second named respondent, it is appropriate that those costs be paid.  It is not appropriate that the claimants for those costs wait until the conclusion of the proceedings.  There will be an order that those costs be paid no later than 1 April 2010.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mushin

Associate: 

Date:  19 May 2010