Bondelmonte and Bondelmonte

[2013] FamCA 464

FAMILY COURT OF AUSTRALIA

BONDELMONTE & BONDELMONTE [2013] FamCA 464

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournment to allow testing of the evidence by cross-examination

Family Law Act 1975 (Cth)

APPLICANT: Ms Bondelmonte

RESPONDENT: Mr Bondelmonte

FILE NUMBER: SYC 4839 of 2011

DATE DELIVERED: 18 June 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Fowler J

HEARING DATE: 14 June 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Batey

SOLICITOR FOR THE APPLICANT: Broun Abrahams Burreket

COUNSEL FOR THE RESPONDENT: Mr Schonell SC

SOLICITOR FOR THE RESPONDENT: Karras Partners

Orders

1. The interim applications for spousal maintenance and child support departure are listed for hearing before Justice Fowler at 10.00 am on Monday,

   
   

   19 August 2013 or such other earlier date before a Judge as may be fixed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym  Bondelmonte and Bondelmonte 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 SYDNEY

FILE NUMBER: SYC 4839  of 2011

Ms Bondelmonte

Applicant

And

Mr Bondelmonte

Respondent

REASONS FOR JUDGMENT

Introduction

1. The proceedings before the Court are interim proceedings in which the wife seeks orders for spousal maintenance and a departure from child support.

2. The husband puts in issue the quantum of the wife’s claim, the capacity of the wife to support herself and his capacity to pay. He further asserts that the departure matter is one in respect of which he, having received the day prior to the hearing the Child Support assessment, wants the opportunity of considering his position.

3. Each of the parties asserts that the evidence of the other is incorrect.

4. The proceedings are listed in the category of ones which are ordinarily heard without cross-examination and testing of the evidence.

5. The issues before the Court attract, on the face of the affidavit material, clear, relevant and extensive issues of fact.

6. The Court is urged to make the orders sought on the material before it but to do so would be on the basis that the wife’s evidence was accepted without testing. It would also mean that where the husband made denials they too would have to be disregarded. Independent evidence which might favour one party or the other cannot be the subject of sworn explanation.

7. The Court has come to the conclusion that the application is not one which it can in justice determine without the testing of the evidence by cross-examination.

8. When this possible conclusion was brought to the attention of Counsel as a possible conclusion of the Court, Counsel indicated that they thought that the matter could be heard on the issues before the Court today in one day with such cross-examination.

9. Accordingly, the Court, without commenting on the evidence, proposes to adjourn the matter to a date upon which it can properly be heard. The Court does not regard itself in these circumstances as part-heard and, having made inquiries, has ascertained that judicial time may become available before another judge earlier than this Court can allocate it (the earliest such date being 19 August 2013). That date will be reserved for the matter in the event that the earlier date does not become available. In the event that it does, the parties will be informed.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler delivered on 18 June 2013.

Associate: 

Date:  18 June 2013