Bain & Stewart - [2008] FamCA 2

FAMILY COURT OF AUSTRALIA

BAIN & STEWART

[2008] FamCA 2

FAMILY LAW – PROCEDURAL – DISQUALIFICATION – Application by Mother to set aside orders following a bitterly contested hearing in January 2007 in which strong findings were made of her lack of credibility and child alienation – Cross application by Father for summary dismissal – Retirement of trial Judge given the findings made at trial – Matter to be re-listed with priority.

Family Law Rules 2004 (Cth) (as amended)
Family Law Act 1975 (Cth) (as amended)

Rice v Asplund (1979) FLC 90-725
King v Finneran (2001) FLC 93-079
Jones v Dunkel (1959) 101 CLR 298
Re Watson; ex parte Armstrong (1976) 136 CLR 348 at 262
Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 293
Johnson v Johnson (2000) 201 CLR 488
Re JRL; ex parte CJL (1986) 161 CLR 342 at 351

APPLICANT:

Mr Bain

RESPONDENT:

Ms Stewart

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

DGF

766

2005

DATE DELIVERED:

3 January 2008

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Guest J

HEARING DATE:

3 January 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Werner

SOLICITOR FOR THE APPLICANT:

Rigoli & Associates

COUNSEL FOR THE RESPONDENT:

In person

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Smith

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Robert Halliday & Associates

Orders

That all extant applications be adjourned for listing by the Honourable Justice Cronin as a matter of priority not earlier than 5 February 2008.
That each of the parties do file and serve detailed written submissions not less than four days prior to the date fixed for determination of the competing applications.
That the costs of all parties of this day be reserved.
That the ex tempore Judgment be transcribed and placed on the Court file.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Guest delivered this day will for all publication and reporting purposes be referred to as Bain & Stewart.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGF 766 of 2005

Mr Bain

Applicant

And

Ms Stewart

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

This matter comes before me in the Judicial Duty List following an order made by Senior Registrar FitzGibbon on 27 November 2007. I am familiar with its background having been the trial Judge in the substantive proceedings and in which I delivered a lengthy judgment on 25 January 2007 (reported in [2007] FamCA 337) and since which date there have been continued proceedings between the parties.
Mr Werner, who appears for the applicant father, has, helpfully outlined to me that there were some cosmetic issues concerning the orders I previously made in the substantive hearing. Otherwise, the matter for my consideration arose from an Application brought by the mother to establish, in essence, a whole new regime of orders and that the orders that I made following a lengthy contested hearing spanning several days be set aside. The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bain & Stewart

Details

AGLC: Bain & Stewart [2008] FamCA 2
Case: [2008] FamCA 2
Decision Date: 29 January 2008

CaseChat Overview and Summary

In *Bain & Stewart*, Guest J of the Supreme Court of Victoria was required to consider applications made by the parties. The precise nature of the dispute between Bain and Stewart is not detailed in the provided text, but it involved competing applications before the Court.

The central legal issue before Guest J was the management and progression of these competing applications. The Court needed to determine how to best facilitate the resolution of the matters before it, including the timing of future hearings and the preparation of submissions by the parties.

Guest J ordered that all extant applications be adjourned for listing by Justice Cronin as a matter of priority, not earlier than 5 February 2008. Furthermore, each party was directed to file and serve detailed written submissions at least four days prior to the date fixed for the determination of the competing applications. The costs of the day were reserved, and the ex tempore judgment was to be transcribed and placed on the Court file.

Orders

Orders of the court

That all extant applications be adjourned for listing by the Honourable Justice Cronin as a matter of priority not earlier than 5 February 2008.

That each of the parties do file and serve detailed written submissions not less than four days prior to the date fixed for determination of the competing applications.

That the costs of all parties of this day be reserved.

That the ex tempore Judgment be transcribed and placed on the Court file.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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