FAMILY LAW - PRACTICE AND PROCEDURE - ADJOURNMENT - Where the mother seeks an adjournment one month before final hearing- Where the father and Independent Children's Lawyer oppose adjournment - Where adjournment is not warranted - Consideration of AON Risk Services v ANU - Consideration of s 69ZN of the Family Law Act - Where adjournment application dismissed - Orders made extending time for mother to file material

(a) Not later than 4.00pm on 9 April 2025 the parties are to confer and prepare a trial plan allowing for the matter to complete within the allocated time including submissions.

1. The balance of the trial directions made on 29 November 2024 and 5 February 2025 remain in full force and effect.
2. An Interpreter be provided for the mother for the final hearing in Language B.
3. Leave is granted to the legal representatives to forward to Chambers a list identifying the documents they seek access to.

1. The parties are advised that the final hearing will commence at 10.00am on the first day, being 14 April 2025. In the event the parties seek to have any discussions to resolve the matter or limit the issues, this is to occur prior to 10.00am on 14 April 2025.

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 Peusen & Belo has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. These reasons for judgment were delivered orally and have been corrected from the transcript.

1. An Application in a Proceeding was filed by the mother on 18 March 2025 seeking that the final hearing date be vacated. Although the Independent Children's Lawyer ("ICL") initially supported the application it was subject to the likely time to relist the matter. He ultimately does not support the application. The father opposed that the hearing date be vacated but given the identified difficulties with preparation of the material for trial, proposed an extension of time for the filing of the affidavit of the mother, her witnesses and her financial statement until 31 March 2025.
2. The application to vacate the trial is refused for the reasons that follow.
3. I make orders as proposed by the father for the extension of time for the mother to file her trial material. I make an order for the filing of an agreed trial plan by 4.00pm on 9 April 2025. I make an order for a Language B interpreter to be made available to assist the mother in the trial. I note the ICL will provide all updated material to the relevant experts and the balance of the trial directions remain in full force and effect.

1. These proceedings are listed for a four-day final hearing commencing on 14 April 2025 in the Brisbane registry. It was listed by the Case Management Judge, Justice Baumann, in November 2024 to that hearing date. The mother in receipt of a s 102NA grant and the father is privately represented. An experienced ICL, Mr Carter, has been appointed to look after the best interests of the child in this matter. These are both parenting and property proceedings.
2. I have read the application and affidavit in support, and I have read the response and the affidavit in opposition to the adjournment.
3. I advised the parties that the next available date that I have for listing of a four-day trial in my docket, absent a matter being vacated or settling, is likely to be in November 2025.
4. There are various matters that weigh for and against vacating the final hearing dates and I have carefully considered these matters.

The mother's access to justice and legal representation

1. A party's right to be represented is set out in s 57 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) ("FCFCOA Act"). However, although representation is preferable, it is not an entitlement.
2. In this case, however, both the father and the mother have had the benefit of a s 102NA order, which was made on 22 August 2024 by Judge Firth in the Federal Circuit and Family Court of Australia (Division 2), prior to the matter being transferred to this Court. On 28 November 2024 the matter was deemed ready for trial and trial direction were made by Baumann J, who noted that the property pool was essentially agreed and that the property issues appeared to be a differential in potential future income and the impact of the final parenting arrangements in relation to property adjustment.
3. The matter was then listed before me on 5 February 2025. The parties confirmed the matter was ready for trial, further trial directions were made and the s 102NA cross examination banning order first made on 22 August 2024 was noted and a copy of my orders were forwarded the Queensland Legal Aid.
4. The father gives evidence that he engaged his now lawyers in January 2025. The mother's lawyer filed a notice of address for service on 17 February 2025.
5. In this instance the mother has legal representation and her counsel, Mr Natanail, who appeared today, but seeks an adjournment for a number of reasons, but the most significant of those after submissions, it is clear, is essentially due to a lack of time to prepare for a matter, which no doubt has serious parenting outcomes as sought by each of the parties. The reasons in support of the application to vacate the hearing date was set out in the affidavit filed by Mr Natanail's instructing solicitor, Mr O'Shaughnessy, on 18 March 2025. He says from [6]:
   1. My client, the Respondent, has experienced significant difficulties in recent weeks due to the effects of the recent cyclone, including loss of power and communication disruptions. This has hampered my ability to communicate with her effectively and obtain necessary information from her.
   2. English is not my client's first language, which further complicates the process of ensuring she fully understand the legal proceedings and the advice I am providing. Providing adequate explanation and translation support requires additional time and resources.
   3. Further, the process of disclosure between the parties is yet to be fully completed. This is a critical step in preparing the Respondent's case.
   4. Due to the combined effect of the short timeframe, the substantial volume of material, the communication difficulties with my client, language barriers, and the outstanding disclosure, I am of the opinion that it would be procedurally unfair to proceed to trial on the current listing date. Adequate preparation is impossible within the existing timeframe.
6. In oral submissions it was not contended that the cyclone impact was in fact a significant matter. In any event there is no proper evidence upon which I can find it has indeed hampered preparation to the extent that an adjournment is warranted.
7. The mother's solicitor and counsel can engage with translators to assist in the task of preparing the matter for trial given that English is not the mother's first language. I noted that the detailed trial affidavit that had been filed by the mother herself was prepared in English and as submitted by solicitor for the father, the mother has engaged in the various proceedings to this point, including engaging with the experts, without the assistance of an interpreter without apparent difficulty. That being said, English is not the mother's primary language and that is a matter that should be addressed. Accordingly, I have ordered the provision of an interpreter for the trial to assist the mother as required once the proceedings commence. I note that the solicitor and counsel will make arrangements to engage with a translator as necessary in preparation for the matter.
8. The final hearing does not commence for another full three weeks. The mother's solicitor can engage with translators to assist in the task of preparing the evidence for trial and for the purposes of taking instructions and giving advice.
9. Finally, the issue of the substantial volume of material was raised. Many of the subpoena documents are yet to be produced and as identified by the father's solicitor, they too will be considering voluminous material in the weeks and days leading up to the trial. This is not a matter that, in my view, is a weighty consideration in support of an application to vacate the hearing date.
10. Having said that, where there are complex issues, legal representation and a proper opportunity to prepare for a complex matter is desirable. It also should be noted that the Court and litigants are assisted in the administration of justice by lawyers who take on appearing under a s 102NA grant or who are funded by legal aid or who appear as ICLs. The Court is assisted when these lawyers, as they should and do, prepare the matters properly and fulsomely. They identify the real issues in dispute, which is of assistance to the Court. They identify the relevant evidence, which is of assistance to the Court. They identify the issues that actually require judicial determination. The practitioners do this valuable work and they do it well, it should be acknowledged and they should be thanked for the service that they provide to the community, to litigants and to the Court.
11. There is no criticism of the application that has been made in the circumstances that presented itself to the solicitor and counsel for the mother. However, there a number of matters which do not support an adjournment.

Impact on Court resources and other Court users

1. As the High Court set out in the decision of Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175, Gummow, Hayne, Crennan, Kiefel and Bell JJ observed:
   1. A party has the right to bring proceedings. Parties have choices as to what claims are to be made and how they are to be framed. But limits will be placed upon their ability to effect changes to their pleadings, particularly if litigation is advanced. That is why, in seeking the just resolution of the dispute, reference is made to parties having a sufficient opportunity to identify the issues they seek to agitate.
   2. In the past it has been left largely to the parties to prepare for trial and to seek the court's assistance as required. Those times are long gone. The allocation of power, between litigants and the courts arises from tradition and from principle and policy. It is recognised by the courts that the resolution of disputes serves the public as a whole, not merely the parties to the proceedings.

(Bold emphasis added)

(Citations omitted)

1. The mother seeking to vacate the hearing dates in this matter, has a number of consequences.
2. The first is that it would not be possible to allocate those trial dates to another case - that impacts other court users as court time is scarce. The second is that a later date for this matter would mean another trial awaiting allocation also has to wait. The impact on the public as a whole, the effective use of resources and the efficient determination and finalisation of matters are important considerations. These are considerations that are given some weight.
3. The applicant has been aware that this matter has been listed for final hearing since late 2024 when the first orders for trial allocation were made by Baumann J. The mother has been granted legal representation under the s 102NA scheme and the notice of address for service was filed on 17 February 2025. The proceedings were commenced on 23 December 2022. This matter needs to be finalised.

1. I have already made reference to the s 102NA scheme, and the fact that the parties have had the benefit of that scheme.

1. The prejudice to the parties also weighs against an adjournment. The potential prejudice to the mother is that there could be a delay in finalising the arrangements in relation to the time that she may or may not spend with the child and what the living arrangements for the child will be.
2. However, the prejudice to the father, also as identified in his affidavit, includes the ongoing cost, the delay, the potential to have to file further evidence. I note that both the father, the mother, and the ICL have counsel briefed to appear in this matter.

1. Section 69ZN of the Family Law Act 1975 (Cth) ("the Act") specifies the principles that the Court must give effect to in parenting proceedings. The first principle of which is for the Court "to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings."
2. The unnecessary prolongation of proceedings involving children and potential impact on them is a factor that I must consider. I have been unable to find a way to hear this matter, if it was vacated, until November of this year. Such a further delay in the parenting proceedings is not in the child's best interest. The arrangements for this child should be put into place without delay. As I say these proceedings were commenced over two years ago.

1. I also am aware that these proceedings should be conducted without undue delay and with as little formality and as little technicality as possible, to get to the final conclusion.

1. Ultimately, this matter is finely balanced. I have weighed up each of the factors but on balance the application to adjourn is refused for the reasons that I have set out.
2. Balancing the prejudice to the mother against the overarching purpose and other relevant considerations, including the best interests of this child and the effect on other court users, the application must be refused.

I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Curran.