Bedford and Cusack (No. 2)

[2009] FamCA 758

FAMILY COURT OF AUSTRALIA

BEDFORD & CUSACK (NO. 2) [2009] FamCA 758

FAMILY LAW – PROCEDURAL – affidavits and adjournment

Family Law Act 1975 (Cth)

APPLICANT: Mr Bedford

RESPONDENT: Ms Cusack

INDEPENDENT CHILDREN’S LAWYER: Ashley Kent

FILE NUMBER: ADC 1688 of 2007

DATE DELIVERED: 9 June 2009

PLACE DELIVERED: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 9 June 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT: In person

SOLICITOR FOR THE RESPONDENT: In person

INDEPENDENT CHILDREN’S LAWYER

COUNSEL:

Ms Cocks

INDEPENDENT CHILDREN’S LAWYER

SOLICITOR:

Ashley Kent

Orders

1. That forthwith the affidavit filed by the mother on 29 May 2009 be uplifted and returned to her.

2. That the mother have leave to file and serve her affidavit of evidence in chief and an affidavit of evidence in chief of Mr N such affidavits to be filed and served within 8 weeks of the date hereof.

3. That further consideration of this case be adjourned to 9:30am on 15 September 2009.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 1688 of 2007

MR BEDFORD

Applicant

And

MS CUSACK

Respondent

EX TEMPORE REASONS

1. This matter is listed again in another attempt to move the matter along the case management pathway.  It was adjourned on the last occasion effectively for the parties to prepare and file further substituted affidavits of evidence-in-chief.

2. Dealing with the mother’s position first, she did file a further affidavit on 29 May 2009.  I will not repeat what I have said about that affidavit, but, in summary, unfortunately, the affidavit is no better.  Indeed, in my view, it is worse than the earlier affidavit which the mother filed. 

3. The position now is that the mother does not want to rely on that affidavit and she wants an opportunity to instruct a solicitor to prepare her affidavit for her, given the problems that have developed with that exercise.  As I have said, that is her choice.  I am not requiring her and I am not ordering her to do anything in that regard.  She is perfectly at liberty to act for herself and to prepare her own documents.  But it seems that she has now realised that that is not an easy task, and I encourage her, if she can afford it, to use the services of a solicitor to prepare an affidavit for her. 

4. The mother has indicated that that is what she now proposes to do, and therefore, I propose to uplift this affidavit and return it to her.  The mother also prepared a further affidavit for Mr N that has not yet been filed.  I have sighted a copy of it.  There are difficulties associated with that affidavit, and the mother has indicated that she will take those on board and prepare a further affidavit for Mr N, hopefully with the assistance of a solicitor.  To repeat, that affidavit has not yet been filed, thus I do not need to make any order about uplifting it, but I do need to give the mother leave to file not only a further affidavit of herself, but also a further affidavit of Mr N. 

5. The father has now finally filed an affidavit which, although not perfect, is an affidavit that I am prepared to allow.  It is an affidavit which puts the relevant facts before this court in a generally admissible way.  I note that it was prepared by Mr Charman, solicitor, on the father’s behalf. 

6. The father also had Mr Charman prepare an affidavit for his sister, but for some reason, that was filed in the Federal Magistrates Court.  The father was assured that it would be placed on the Family Court file, but unfortunately that has not happened.  My staff will now look into that and have that affidavit placed on the Family Court file. 

7. I have highlighted issues that I still have with that further affidavit of his sister, and I have indicated some surprise that it was prepared by Mr Charman.  In any event, that is the affidavit the father relies on, and I am not going to hold this matter up any further by returning or requiring any further affidavit to be prepared by the father.

8. That said, I have turned my mind to when this matter can be listed.  I have revisited the issue of the witnesses that I have allowed to be called and there are a number of witnesses that the father will be calling, and in respect of whom he will need leave to issue subpoenas.  The mother is calling another witness at this stage and will also need a subpoena in due course to bring that witness to court.  Ms Cocks will be calling Ms S, and Dr Q, family consultant, will also be called.  I assume Ms Cocks will ask me to call her in the trial to allow everyone to cross-examine her. 

9. With the number of witnesses, Ms Cocks and I consider that the case needs at least five days, but more likely six or seven days.  That has made it difficult for me to find a listing in my docket and indeed I am not in a position to give this matter a listing today for that reason.  I have indicated, though, that it is likely to be listed in November or December and I have requested the parties and Ms Cocks to ascertain the availability of their respective witnesses in that timeframe, and then to advise my associate in writing of the availability of those witnesses, so I can take that into account when I list this matter.  That is all that I propose to address today. 

I certify that the preceding 9 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered 9 June 2009.

Associate