Wignall and Hewart

[2010] FamCA 350

FAMILY COURT OF AUSTRALIA

WIGNALL & HEWART [2010] FamCA 350

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournment

APPLICANT: Mr Wignall

RESPONDENT: Ms Hewart

FILE NUMBER: SYC 8683 of 2007

DATE DELIVERED: 21 April 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Cohen J

HEARING DATE: 21 April 2010

REPRESENTATION

APPLICANT: In person

RESPONDENT: In person

Orders

1. That the wife’s oral application to adjourn the proceedings is hereby granted.

2. That these proceedings are adjourned to 10am 3 June 2010 for mention only before Justice Cohen.

Notation:

A.That the wife has given an oral undertaking to the Court that she will take no steps to enforce the Orders made by Judicial Registrar Johnston on 27 November 2009 until the review and stay applications filed by the husband on 23 December 2009 are determined and has been informed by the Court that the breach of such an undertaking amounts to contempt of Court.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 8683 of 2007

MR WIGNALL

Applicant

And

MS HEWART

Respondent

REASONS FOR JUDGMENT

1. In this matter, the wife seeks an adjournment on the ground that until mid-March she was represented by solicitors and counsel but discovered that the business that both she and the husband were, until then, engaged in was to be put into the hand of receivers or administrators.  In those circumstances, her economic situation changed to the point that she could not continue with her then legal advisors but could, she believed, qualify for legal aid; she has applied for legal aid. 

2. There has been a delay in dealing with that legal aid on the ground that she has not had enough time to provide all the information needed for legal aid - that ground being compounded by the fact that circumstances changed during the period after she made an application for legal aid.  She seeks an adjournment so she can obtain legal aid.  In these proceedings, the husband is not represented but his current wife is a solicitor.  No doubt he can obtain help from his wife but his wife is not representing him.  It is my view that it will be more difficult for me to do justice in the absence of representation by at least one party. 

3. There is a prospect that the wife will obtain representation.  In my view she is entitled, in the circumstances, to seek it and has not been guilty of any undue delay in attempting to obtain it.  One should then look very favourably upon the wife’s application for adjournment given that it may result in her being represented and therefore there not only having a better opportunity for her to achieve justice but also her solicitors – or barristers – being in a better position to enlighten the Court about the real position of both parties, as it is relevant, than self-represented litigants usually are.

4. However, the husband opposes the adjournment because he is the appellant in these proceedings and there is no stay and his liability to pay child support and spousal maintenance, as ordered by the judicial registrar, continues despite his having appealed against it.  In those circumstances, it seems to me that I should be loathe to allow an adjournment unless there is a stay in relation to his liability.  That matter has not been canvassed with the wife.  I propose to canvas that with her and, on learning her attitude to it, finalise my decision.

RECORDED   :   NOT TRANSCRIBED

1. I have canvassed the situation with the wife.  She is prepared to give an undertaking to do nothing to press her entitlement under the orders made by the Judicial Registrar.  I think that that is an appropriate course.  It is equally as effective - in fact more effective - than a stay, to protect the husband’s situation.  In those circumstances, on the wife providing that undertaking - and that can be done orally in court before me immediately on making the orders - I am prepared to grant the adjournment.

2. I shall stand this matter over for mention before me on a conveniently available date after six weeks from today.  It shall be for mention only.  It will not be heard on that day.

3. I shall adjourn this matter to 13 June 2010, for mention.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cohen.

Associate:     

Date:              6 May 2010