Benjamin and Bardot

[2009] FamCAFC 241

FAMILY COURT OF AUSTRALIA

BENJAMIN & BARDOT [2009] FamCAFC 241

FAMILY LAW - APPEAL – PRACTICE AND PROCEDURE – APPLICATION FOR ADJOURNMENT – Adjournment opposed – Counsel unavailable to present the matter on the date listed – Issue of availability not a mistake, or the fault, of the parties – Adjourned until a later sitting of the Full Court

APPELLANT: Mr BENJAMIN

RESPONDENT: Ms BARDOT

APPEAL NUMBER: EA 4 of 2009

FILE NUMBER: SYF 4244 of 2006

DATE DELIVERED: 9 December 2009

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF:

Coleman J

Warnick J

May J

HEARING DATE: 9 December 2009

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 26 November 2008

LOWER COURT MNC: [2008] FamCA 1011

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Smyth

SOLICITORS FOR THE APPLICANT: Watts McCray Lawyers

COUNSEL FOR THE RESPONDENT: Mr Kearney

SOLICITORS FOR THE RESPONDENT: Gayle Meredith & Associates

Orders

1. The appeal be adjourned to be listed, if possible, to the Full Court sittings in April 2010.

2. The costs of each party thrown away by today’s adjournment be reserved.

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

IN THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

APPEAL NUMBER: EA4 of 2009
FILE NUMBER: SYF 4244 of 2006

Mr BENJAMIN

Applicant

And

Ms BARDOT

Respondent

Ex Tempore

REASONS FOR JUDGMENT  

1. WARNICK J:   His Honour, the Presiding Judge, has asked that I express my conclusion and my reasons for it first.  I would allow the adjournment of the appeal.  I would do so because I accept the proposition by Ms Smyth for the appellant that the matter is one in which she is concerned that junior counsel would not be able to best represent or represent to a desirable level the appellant’s case, if asked to take the brief at such a late stage.  While Mr Kearney, appearing for the respondent, points out that apart from what Ms Smyth has said of the position, there is no real examination of whether her judgment is sound that, in my view, is to ask almost an impossible test to be met.

2. It is quite unreasonable for, I think, the court to call upon Ms Smyth to name persons who might be available, but in whom she does not have confidence and to challenge whether that view of hers is soundly based or not.  It is important that a party, in this case an appellant to the Full Court, feel that the appeal has been properly and fully argued on that party’s behalf.  Given Ms Smyth’s views of the matter, it is likely that if forced on tomorrow, a party would be left with a concern that that party’s position had been less than adequately presented to the court.

3. It is not a matter in which it is said to us that there is something in the terms of the orders or the situations of the parties which calls for express determination.  If from nothing else, that conclusion is inferred from the position taken last week on behalf of the respondent to the appeal that April, being the next sittings in which this appeal may be heard, was a preferred - or the preferred option when the matter could not proceed last Friday.  The circumstances are not of the parties’ making.  It appears that counsel briefed on behalf of the appellant last Friday became ill and the matter was, after consultation with chambers, adjourned to tomorrow.

4. The counsel concerned realised on Monday that he was not available that day.  I infer that he was unavailable on Friday, but that it was not appreciated that he could not argue the appeal tomorrow.  In other words, from the course of events that I have described, it would not appear that he has become part-heard by some matter in which he appeared this week.  It is a mistake and not, as I say, a mistake of the party.  For those reasons I consider, as I have said, that the adjournment should be granted.  Thank you.  Your Honour, the Presiding Judge.

5. COLEMAN J:   For the reasons Justice Warnick has articulated I, too, would grant the adjournment.  With respect to counsel for the respondent, I have some difficulty with his resistance of the application given that, as the transcript of last Friday would make abundantly clear, his availability tomorrow is fortuitous and the shoe could very easily have been on the other foot.  The record from last Friday records that Ms Smyth, for the appellant, fairly conceded that if the difficulties counsel for the respondent foreshadowed may eventuate tomorrow, there would be no resistance to an adjournment.

6. I think it’s regrettable that the spirit of cooperation between professionals that was so evident on Friday has dissolved in the period since then.  I, otherwise, have nothing to add to the reasons Justice Warnick has provided.

7. MAY J:   I would also allow the adjournment of the appeal and have nothing to add.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court

Associate: 

Date:  22 December 2009