Baaimen & Lesauvage [2025] FedCFamC1F 593 (22 August 2025)

(a) He is able to cross-examine all witnesses called by the mother and ICL;

(b) The ICL's counsel will cross-examine the mother and any other witnesses of hers first.

(c) Should he download some messages or find other relevant documents he is to disclose those to the other parties under his duty of disclosure and may be able to cross-examine on them subject to relevance.

(d) He can file affidavits out of time, but that does not mean he will necessarily get leave to rely upon them;

(e) What went on at the mediation is confidential and legal advice received from lawyers is privileged;

(f) On the morning of trial, the court will inform him how the trial will proceed.

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 a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. This is an application by the father to adjourn the upcoming trial. Whilst the granting or not of an adjournment application cannot be appealed, in the circumstances, I will give reasons so the father can understand why his application will be dismissed.
2. The father's Application in a Proceeding and affidavit to adjourn the trial were filed on 13 August 2025.
3. The trial concerns three children - X, who is five, and twins Y and Z who are three. The mother wishes to relocate with the children to New Zealand. The father opposes that and seeks to have more time with them than is currently in place.
4. The matter was listed for trial on 4 February 2025, which is some time ago, and was listed for three days commencing 10 September this year [2025].
5. On 23 April 2025, being a couple of months after listing the matter for trial, the father's solicitors filed a Notice of Ceasing to Act.
6. Those various dates mean the father has known of the trial dates for 7 and a half months, if I count from 4 February 2025. Or, some five months if I count from the Notice of Ceasing to Act.
7. During the hearing, I read to the father, who has been self-represented since 23 April 2025, the considerations which ought be taken into account on an adjournment application.
8. As said to him, the court has a wide discretion when one party moves the court to adjourn a hearing and should take into account: the reasons for an adjournment; any period of delay in making the application; any prejudice or disadvantage to the other parties, which cannot be compensated by way of costs (and in that I include prejudice to the children given these are not inter se civil proceedings, but involve the best interests of children) and the fundamental consideration is to do justice between the parties.
9. It is very clear looking at cases such as Cheung & The Queen (1999) 73 ALJR 1093 per Kirby J at [10] that:

The Court has both express and implied power to grant an adjournment where it is necessary, to do justice between the parties. Where a refusal would seriously prejudice a party, the adjournment should ordinarily be granted. At least, it ought be granted if the opposing party can be adequately protected by orders as to costs, orders providing for a new hearing on dates suitable to it, and to other orders of a procedural character which take into account any prejudice which may be suffered by it.

(footnotes omitted)

1. Of course, that was a criminal proceeding. This is family court proceedings where it is largely accepted that children need finality and that children ought not be the object of litigation any longer than they need.
2. It is also the case from clear authorities such as Queensland & JL Holdings Pty Ltd (1997) 141 ALR 353 that the court can take into account the scarce resources that are court dates, court lists, and the rights of other litigants to court time.
3. Turning to the father's reasons for an adjournment, one was he asked for an extension of time to file material. He has filed. He and I had a long discussion today about filing extra material, which is something he can do, but whether he is given leave to rely upon late affidavits is a separate issue.
4. The parties have already been granted one extension to file their material by 13 August 2025. The father filed. The court has also been at pains to explain to the father the process of cross examination, and that he might want to put documents to the mother [in cross examination]. But I highlight again what I said earlier in the hearing - if he files anything else, and more so, if he is able to collect other documents between now and the trial, then, he needs to disclose that to the Independent Children's Lawyer ("ICL") and to the mother.
5. He had also sought an extension of time to file along with the adjournment to secure a translation of an affidavit by his mother. That affidavit would be out of time as well, but this is a trial that was set down on 4 February 2025. Further, that his mother would need a translation service is hardly new.
6. His mother is in Country C. Ultimately, the father did not press that aspect of his application when I explained to him what is required under rr 15.15 and 15.16 [of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ("the Rules")].
7. I pause to observe, my chambers will be sending the father by e-mail this afternoon a copy of Re F (Litigants in Person Guidelines) [2001] FamCA 348; (2001) 161 FLR 189 ("Re F Guidelines") and the rules to which I just referred so he can satisfy himself about the onerous nature of r 15.16.
8. The father also sought an adjournment so he could download some messages.
9. He has had plenty of time to do that and still has time. I have explained to him that if he is able to download the messages, then he can put them to the mother in cross examination, and that he certainly should disclose them. The father has been alert to the trial dates for several months now.
10. The main reason the father seeks an adjournment is to update the family report, which is dated 12 April 2024.
11. The father said in his affidavit that if the court relied upon that family report, there is a risk that decisions will be made on "outdated evidence". But, the ICL confirmed standard practise that the parties' trial affidavits will be sent to the family report writer. And, it is open to the parties, as the father now plainly understands, that he can put anything to the report writer he thinks is relevant. I highlight 'relevant'.
12. The children in this matter are, as I said, five, and the twins are three. The father also deposed in his affidavit that at the first report, they were unable to "fully express their views". At now five years and three years they are probably still at a developmental phase where they are unable to fully express their views.
13. The father highlights: he has a very strong bond with the children; he has a partner; and, that his times and routines with the children have changed. I accept all of that - children get older, bonds develop - but the reality is, the family report writer already accepts that the father and the children have a strong bond. Again, the father is at liberty to cross examine the report writer about that. The father's partner's affidavit will be in the bundle that is sent by the ICL to the report writer.
14. Yes, the family report writer recommended an update as the father highlighted. That is lovely, but that is not binding on me. That is a very usual recommendation, but ultimately, as I said to the father in discussions, the decision of Hall and Hall [1979] FamCA 73; (1979) FLC 90-713 at 78,819, which binds me, says "there is no magic in a family report".
15. A family report is, of course, an important piece of the jigsaw puzzle that is evidence. But report writers cannot usurp the role, which is my role, of making decisions.
16. But again, the father is at liberty to cross examine the report writer on anything, so long as it is relevant, and by relevant I refer to s 55 of the Evidence Act 1995 (Cth).
17. I do not know why the father delayed in applying. True he wrote to the parties on 18 July 2025 asking about an adjournment. The mother said no on 28 July 2025. It is not apparent to me, though, why once his lawyers left him on the 23 April, he did not agitate the adjournment matter then. Ultimately nothing turns on this.
18. The next consideration is prejudice to the other side, which cannot be compensated by costs. I asked, but the father makes no offer to compensate either of the parties for their costs thrown away if the trial was adjourned. However, there is a greater prejudice here and it is the prejudice to the children in not having a final decision made about them.
19. As said, another criterion is doing justice between the parties. The mother has a case to run. The father has a case to run. The reasons he has highlighted seeking the adjournment, are matters that can be adequately covered in cross examination or the disclosure of documents and documents being put to witnesses.
20. Doing justice between the parties again comes from civil inter se proceedings, whereas this matter involves the best interests of the children. It is also the case from Re K [1994] FamCA 21; (1994) FLC 92-461, that any prejudice to a party is secondary to the best interests of the children.
21. The parties need finality.
22. The children need finality.
23. The court is also entitled to look at case management. The father spoke of having a short adjournment and coming back three months after an updated report. The report writer is unavailable to do an addendum between now and the trial.
24. A short adjournment is not capable in this court. We all have long lists. I would not be able to reach the matter until next year and that does not do anybody justice. That ultimately causes the children prejudice.
25. It is also the case that the father's solicitors, who bind him by their answers, have three times said no to an updated report, including before me on 4 February 2025. Even if they had asked for one then, I doubt I would have made that order. It is difficult to see how an updated report is going to help understand the children's views given their tender ages, or because everything that the father raises now can be adequately covered by cross examination.
26. For those reasons, I will dismiss the application for an adjournment, which means the trial will commence on the 10 September 2025 for three days, if that [length of] time is required. I highlight I have already made trial directions that if people do not comply, for example by not turning up, then I may well hear the matter on an undefended basis. So, it ought not be thought by anybody that they can secure an adjournment by not showing up.
27. The Rules require personal attendance unless excused. It should not be thought an adjournment can be obtained by not turning up at the trial. That is one reason for my trial directions, which makes it clear that if parties do not comply, the matter may go undefended.
28. I further add that the father tells me that he had surgery in May 2025. If he needs to stand or sit or whatever in the trial, then he is perfectly welcomed to ask. I observe though that he has done very well in the hearing today.
29. He also said if the matter was adjourned, he might be able to get representation. Unfortunately, the father falls into what is often called the "missing middle" - "too rich" for legal aid, but not able to fund private legal representation. He falls into a great number of matters, and is like so many other people who come before this court, where someone is self-acting in more than 50 per cent of our matters.
30. But again, that is a reason why my associates will send him the Re F Guidelines, and I have already indicated to him that the first substantive thing I will do at the trial, is that I will explain to him how the trial will work. I have also indicated to him, without demur from the mother's solicitor or the ICL, that when it comes to cross examining the mother, the ICL's Counsel will go first so the father can see how that works. It may be the ICL asks many of the questions he was otherwise going to ask, but he will have a model to see how cross examination works.
31. Also for those reasons, the application to adjourn is dismissed.

I certify that the preceding forty (40) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Brasch.