BILSON & SARSGAARD

[2015] FamCA 498

FAMILY COURT OF AUSTRALIA

BILSON & SARSGAARD [2015] FamCA 498

FAMILY LAW – PARENTING APPLICATION – Adjournment Application – Application Refused

APPLICANT: Mr Bilson

RESPONDENT: Ms Sarsgaard

INDEPENDENT CHILDREN’S LAWYER: Barbara Fox Solicitors

FILE NUMBER: BRC 11169 of 2011

DATE DELIVERED: 26 June 2015

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 26 June 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Hempling

SOLICITOR FOR THE APPLICANT: PAT Law & Associates Pty Ltd

COUNSEL FOR THE RESPONDENT: Ms McDiarmid

SOLICITOR FOR THE RESPONDENT: Senior Legal

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Hodges

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Barbara Fox Solicitor

Orders

1. The Applicant’s Application in a Case filed 25 June 2015 requesting an adjournment of the hearing of this matter is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bilson & Sarsgaard has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 11169 of 2011

Mr Bilson

Applicant

And

Ms Sarsgaard

Respondent

And

Independent Children’s Lawyer

EX TEMPORE

REASONS FOR JUDGMENT

1. I intend to refuse the application for an adjournment of the trial set to commence before me next week.  I do so on the basis that the matter has a long history in this Court, having been the subject of transfer and its designation as a Magellan matter in about June of last year.  The children are currently spending supervised time with their father.  The parties have been engaged or embroiled in the litigation for a relatively significant period of time.  It is undesirable, unhelpful and I think unlikely to be in the children’s best interests for their parents to continue to be so embroiled in litigation. 

2. I take into account the absence of evidence as to the father’s ability to be able to obtain a report which is intended and hoped to provide an opinion contrary to that contained within the report of Mr B, exhibited to his affidavit filed on 23 June 2015.  There is no evidence before the court to the effect that the father could, in fact, achieve such a desired aim.  I take into account, in considering the absence of that evidence, the length of time over which this matter has been within this Court and its designation as a Magellan matter. 

3. I also take into account the fact that the allegations levelled against the father have been well known for a significant period of time.  I take into account the fact that each of the parties before the Court is currently legally aided - I record the Court’s concerns that an adjournment of the hearing may, perhaps, have the unintended effect that legal representation would not be made available to the parties at an adjourned date (or, at least, to the parties other than the Independent Children’s Lawyer). 

4. That, it seems to me, would be the least desirable because it would mean that there is a significant risk that one of these parties - in a case in which there are allegations of risk and potential impairment in capacity to parent in relation to each of them - would then be required to present their own case. 

5. That is highly undesirable and something I consider more likely than not to be not in the children’s best interests because there is an increased risk that a party may not properly put forward that party’s case and contentions for the court’s considerations. 

6. I take into account, also, that if the matter were adjourned, the earliest time at which it could be relisted for hearing is toward the end of this year:  in late November. 

7. For those reasons then the application is refused.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 26 June 2015.

Associate:     

Date:    26 June 2015