England & Harrisson (No. 4)

[2021] FamCA 529

FAMILY COURT OF AUSTRALIA

England & Harrisson (No. 4) [2021] FamCA 529

File number(s):	SYC 5095 of 2020
Judgment of:	BAUMANN J
Date of judgment:	16 June 2021
Catchwords:	FAMILY LAW – PRACTICE AND PROCEDURE – Where the mother filed an Application to adjourn the Final Hearing pending an Appeal against the decision that an affidavit would not be reinstated to form part of the Court file – where the Appeal was withdrawn and the mother seeks to file a fresh Application to reinstate the affidavit into the record – Where if allowed, the father would be permitted to file further Response material – Final Hearing vacated and adjourned to a date to be advised.
Number of paragraphs:	7
Date of last submission/s:	16 June 2021
Date of hearing:	16 June 2021
Place:	Brisbane
Counsel for the Applicant:	Ms E Lawson
Solicitor for the Applicant:	Holmes Donnelly & Co Solicitors
Counsel for the Respondent:	Mr P Cummings
Solicitor for the Respondent:	Tiyce & Lawyers
Solicitor for the Independent Children's Lawyer:	Mr Lawrence, Legal Aid Commission of New South Wales

ORDERS

SYC 5095 of 2020
BETWEEN:	MS ENGLAND Applicant
AND:	MR HARRISSON Respondent
AND:	INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:	BAUMANN J
DATE OF ORDER:	16 JUNE 2021

THE COURT ORDERS UNTIL FURTHER ORDER:

1.That the Final Hearing dates of these proceedings of 21, 22 and 23 June 2021 be vacated.

2.That these proceedings be set down for Final Hearing on a date to be advised.

3.That the issue of costs be reserved.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

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

EX TEMPORE REASONS FOR JUDGMENT

BAUMANN J:

1. On 21 May 2021, I delivered Reasons which have been published, for not reinstating (as sought by the mother), an affidavit that the mother in this case, Ms England, wished to rely upon in a trial that was due to commence next week in Sydney. As the mother was entitled to do, I am told she brought an Appeal. I have not read the Appeal. The Application in a Case for the adjournment filed by the mother on 7 June 2021, indicated that the Appeal was against both the decision of the Honourable Justice Altobelli, made 18 December 2020, and my decision made 21 May 2021.

2. I am told and accept that today when the matter came before the Full Court, the Appeal filed by the mother was withdrawn. It seems clear that all parties accept, as a result of a higher authority, that I would not be prevented from hearing the matter. No one to date has, for example, indicated that I should be recused or disqualified from hearing a fresh application that the mother seeks to bring and agitate for, that the affidavit of the witness, a former partner of the father, be relied upon. Unfortunately, I am not able to deal with such an Application this week in the limited time I have available. I could, of course, deal with it on Monday, on the first day of the hearing.

3. Hearing what I have heard today, namely, from Ms Lawson, who would be required to make her case, it is likely to be opposed, I am told, by the father through his Counsel today, Mr Cummings, although, he will not be the Counsel at the trial. I am told today the mother’s position is now supported by the Independent Children’s Lawyer, who will be represented by Mr Kenny at the trial. Mr Lawrence, who instructs Mr Kenny, acknowledges that this is a change of position of the Independent Children’s Lawyer from that agitated before Justice Altobelli. That of itself does not make it more likely that the mother’s application will be successful, but it is an important change that will need to be taken into account by whoever hears the application. 

4. Counsel have indicated today that the matter may take longer than three days, certainly, the mother and the Independent Children’s Lawyer say that is the case. Counsel for the father says that the matter can be dealt with in three days. Ultimately, when a court lists a matter, as I did for three days, it is anticipated that I will use my best endeavours to complete the case in the time that I allocate. Matters are not listed for a number of days because of consent between the parties. It is best allocated by the Judge who is going to hear the matter and has an understanding of the issues. However in my view, if the affidavit of the witness that the mother seeks to rely upon is permitted, then there will be inevitably a need for the father to have the opportunity to file evidence in response which may include evidence from other witnesses in reply.

5. It may well be that as a subset of the case between the mother and father regarding the child X, that the Court is going to be drawn into seeking to make findings about a matter over ten years ago between the father and a former partner. Whilst that is less than ideal, and whilst I accept that many of those events took place, it seems, many of them over ten years ago, the case being agitated by the mother is very much based on an allegation that those events demonstrate a pattern of behaviour by the father. That is the case she has instructed her lawyers to run, and they wish to do so.

6. If the affidavit is permitted in, on the basis of my ruling, and assuming that ruling is not the subject of an Appeal - as my last one was, although withdrawn - then the trial could not proceed sensibly next week because the father would be entitled to file material in response. Furthermore, if I was not confident that I would be the trial Judge, it seems to me that I should be reluctant to do exactly what occurred to me, namely, make a ruling which does not bind a future Judge one way or the other. That is, even if I made a ruling that the affidavit was to be permitted to be relied upon, a new Judge could be invited to make their own ruling, such as I understand it, the authority to which Ms Lawson directed me to earlier.

7. So for all these reasons, and notwithstanding my very strong desire to try and hear this case, in the best interests of the child where his mother needs to relocate to New Zealand as soon as possible, in fairness to all parties and the Judicial resources of the Court, I cannot, in all good conscience, proceed with the hearing next week. Accordingly, these are the Reasons for the decision to adjourn the trial. I will reserve the costs of the parties today.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Baumann.

Associate:

Dated:       26 July 2021