Zau and Uong (No. 2)

[2013] FamCA 402

FAMILY COURT OF AUSTRALIA

ZAU & UONG (NO. 2) [2013] FamCA 402

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournment refused.

Family Law Act 1975 (Cth)

Rice & Asplund (1979) FLC 90-725

APPLICANT: Ms Zau

RESPONDENT: Mr Uong

FILE NUMBER: MLC 3931 of 2012

DATE DELIVERED: 2 April 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 2 April 2013

REPRESENTATION

THE APPLICANT: Ms Zau in person

COUNSEL FOR THE RESPONDENT: Dr Ingleby

SOLICITOR FOR THE RESPONDENT: Kenna Teasdale Lawyers

Orders

1. That the application for an adjournment is refused.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Zau & Uong (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 3931 of 2012

Ms Zau

Applicant

And

Mr Uong

Respondent

REASONS FOR JUDGMENT

1. This is an oral application for an adjournment of proceedings. The application before me today has two discrete parts. The first relates to an application for a declaration under section 90RD of the Family Law Act, and the second concerns the question of whether or not the applicant should have leave to continue with an application to set aside parenting orders made in 2005. In respect of the latter, the issue is sometimes described as an application to deal with the rule in Rice & Asplund (1979) FLC 90-725.

2. The history of this case is unremarkable.  The application was filed on 4 May 2012 by the applicant and the return date was 10 July 2012 at which time the applicant was represented by counsel.  Clearly, on that day, the issue of the threshold for the property matter was flagged and the registrar adjourned the matter to 4 October 2012 for a telephone hearing at which time it was intended to examine the question of the readiness to proceed with the threshold issue.  In addition, the registrar ordered the applicant to file and serve further material by 8 August 2012.

3. On 4 October 2012 at that foreshadowed telephone mention, a duty solicitor appeared for the applicant as amicus curiae.  Again, the registrar made a further order for material to be filed by 29 October 2012 by the applicant and otherwise adjourned the substantive issue to a date to be fixed.  It was obvious, therefore, by 4 October that the issue had crystallised and there can be no doubt that the applicant knew what she had to do.  On 8 November, I made an order in chambers setting a timetable for the proposed first day of hearing relating to the threshold issue, and made the return date 3 December.

4. On 3 December, the applicant appeared in person and on that occasion after some discussion, I made a timetable which, effectively, gave the applicant a four month lead-in time until today.  There was a dispute on 3 December in relation to the holiday contact between the applicant and the child of the parties who is now 15 years of age, and I fixed a hearing date before the senior registrar in relation to that.  It would appear from the Court’s record that the senior registrar indeed dealt with the matter and made an order.

5. Today, the applicant has had some discussion about the problems of some of her material and has now, at 11 o’clock, sought orally that the matter be adjourned even until the period of the current school holidays is concluded.  She has indicated that in the two week period she will have time with W, (“the child”) which appears to have been a problem in the past, but she readily concedes that she had not told the respondent about her proposed adjournment application.  She says that the pressures on the child and she and the respondent are causing her difficulties.  She made the decision yesterday, but had not told anybody until this morning.

6. No doubt at the expense of the community, an interpreter has been provided today.  There is no basis here for me to adjourn these proceedings.  The material is what it is and it should be determined on the basis of that material.  The application for the adjournment is refused.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 2 April 2013.

Associate: 

Date:  23 April 2013.