Dillon and Betts

[2016] FamCA 278

FAMILY COURT OF AUSTRALIA

DILLON & BETTS [2016] FamCA 278

FAMILY LAW – Adjournment during trial refused

Family Law Act 1975 (Cth)

APPLICANT: Mr Dillon

RESPONDENT: Ms Betts

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 4467 of 2015

DATE DELIVERED: 12 April 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 12 April 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Hoult

SOLICITOR FOR THE APPLICANT: Clark Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Kent-Hughes

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER

SOLICITORS FOR THE INDEPENDENT CHILDREN’S LAWYER

Robert Halliday & Associates

Ms Buchanan

Barbayannis Lawyers

Orders

1. Orders Style

   (a)       Orders-abc Style      

   (i)Orders-123 Style 

IT IS NOTED that publication of this judgment by this Court under the pseudonym Dillon & Betts 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 MELBOURNE

FILE NUMBER: MLC 4467 of 2015

Mr Dillon

Applicant

And

Ms Betts

Respondent

REASONS FOR JUDGMENT

1. This is an oral application for an adjournment on the fifth day of a trial when both mother and father have closed their cases.  At the moment, the hearing concerns cross-examination of the primary witness for the independent children’s lawyer.  When I say that the parties have closed their case, that is, in respect to the mother, a conditional closure because of the fact that she is now proposing to call another witness this afternoon.

2. The reason for the application appears to be that in the course of cross‑examination, some concern has been raised as to whether a transcription from the ECASA counselling notes by the family consultant is accurate.  It is unfortunate that the subpoenaed material has been sifted through by a number of people.  It is not disputed that the mother’s solicitors have had that opportunity.  It is now impossible to try and reconstruct it on the run and there is some doubt as to whether the full file is even here.

3. It seems to me, however, that the issue is one that is not important to the whole determination of this case.  The fundamental question in this case is first and foremost whether these children are facing an unacceptable risk if they spend any time with their father.  The positions are so polarised that a decision needs to be made.  The questions about which the family consultant is giving evidence relate to her observations which I might or might not accept.

4. Counsel for the mother says that these matters are fundamental to the family report to the extent that he is going to submit that we need a new report.  He says that every part of the witness’s statement in relation to her observation that the mother was beguiling is the subject to an admission that she has made a mistake.  I do not accept that is a correct reflection of the evidence given this far.

5. In my view, because of the fact that the trial has already been delayed over two years, these children deserve a final outcome.  This is not just a question of resources and the court has the obligation under division 12A to determine this matter as quickly and as efficiently as possible without significant attention to form.  Perhaps, in some respects, it is unfortunate that when I raised the subject some months ago of the provisions of section 69ZT(3) being applied everyone was a bit hesitant.  In some respects, I now regret that but the reality is that I am stuck with the evidence that I have got.

6. The evidence in this case is something of a mess and, whilst the family consultant is being criticised for her observations, most of them were drawn from documents that should have been provided in evidence in any event.  In those circumstances, to adjourn this proceeding to enable a file to be constructed would take the matter no further than it already has.  On that basis, the application is refused.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 12 April 2016

Associate: 

Date:  28 April 2016