Elton and Batey-Elton (No. 3)

[2008] FamCA 815

FAMILY COURT OF AUSTRALIA

ELTON & BATEY-ELTON (NO. 3) [2008] FamCA 815

FAMILY LAW – ADJOURNMENT – McKenzie friend

APPLICANT: MR ELTON

RESPONDENT: MS BATEY-ELTON

SECOND RESPONDENT: C PTY LTD

INTERVENER: THE OFFICIAL TRUSTEE IN BANKRUPTCY

FILE NUMBER: TVF 2250 Of 2004

DATE DELIVERED: 27 August 2008

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: The Honourable Justice Jordan

HEARING DATE: 27 August 2008

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Rod Madsen, Solicitor, by way of telephone-link

THE RESPONDENT: In person

THE INDEPENDENT CHILDREN’S

LAWYER:

Ms K J Hawdon, Solicitor

Orders

1. That the matter remain listed for final hearing before the Honourable Justice Jordan commencing 10.00 am on 10 November 2008.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE  

FILE NUMBER: TVF2250/2004

MR ELTON

Applicant

And

MS BATEY-ELTON

Respondent

And

C PTY LTD

Second Respondent

And

THE OFFICIAL TRUSTEE IN BANKRUPTCY

Intervener

REASONS FOR JUDGMENT

EX TEMPORE

1. What I propose to do, ladies and gentlemen, is take account of the fact that Registrar Bint is continuing to make directions for the purposes of a hearing in November, subject to her determination and decision on 29 August.  I am not inclined to interfere with that, so I am certainly not inclined today to vacate the trial dates.  I understand the wife’s difficulties.  They have been a common component of all of these past applications.  She is entitled to justice as best it can be provided to her in the circumstances.  The husband also has, like all litigants, a legitimate interest in having litigation finalised and I do take account of long-standing injunctive orders.

2. Very importantly, as in all cases, the Court must take the view that it is not in the best interests of children to delay or protract proceedings in relation to children, because no matter to what extent children are shielded from the detail of litigation, there can be no doubt in almost all cases children are affected and certainly, in this case, the daughter is aware that her status and her future are the subject of deliberations.  Uncertainty cannot be in her best interest.  I therefore propose to leave the trial dates as they are. 

3. The wife has an application for adjournment which is under consideration.  She has proceedings before the Full Court. If she is successful in those proceedings, it may well result in those trial dates before me being vacated, because I believe it would be unlikely that another judge, at least in this Registry, would be able to allocate those ten days out of his or her docket.

4. In relation to Mr B, the reality, as everyone is acknowledging, is that Mr B has and will continue to provide the wife with assistance outside of the formal Court appearances.  Should the matter proceed before me on 10 November, I propose to allow Mr B to attend and I will accommodate an application by the wife to have him attend as a McKenzie friend.  I should say, despite all of the legitimate matters raised by Mr Madsen and Ms Hawdon, my inclination is to allow him to continue to assist the wife throughout the trial.  We will just have to deal, as best we can, with the complications that arise.  I would also need to observe that Mr B’s continued representation for the wife during the ten days will be very much a day-to-day proposition.  If I subsequently determine that, on balance, the interests of all concerned shift against his continued representation, or if I take the view that his assistance is counter-productive at any stage during the proceedings, then I would reconsider my position.  He will assist in the preparation and if he is here on the first day, that preserves to the husband and to the Independent Children's Lawyer the opportunity to renew any specific objections they have to Mr B on the first day of the trial, and I can deal with it on its merits on that day.

   RECORDED  :  NOT TRANSCRIBED

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Jordan

Associate: 

Date: