Farquar and Farquar (No. 5)

[2008] FamCA 1198

FAMILY COURT OF AUSTRALIA

FARQUAR & FARQUAR (NO. 5) [2008] FamCA 1198

FAMILY LAW – PRACTICE AND PROCEDURE – Further adjournment

APPLICANT: Mr Farquar

RESPONDENT: Ms Farquar

INDEPENDENT CHILDREN’S LAWYER: Ms M Orwin

FILE NUMBER: DNC 431 of 2007

DATE DELIVERED: 9 September 2008

PLACE DELIVERED: Darwin

PLACE HEARD: Darwin

JUDGMENT OF: STRICKLAND J

HEARING DATE: 9 September 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Ms Holtham

SOLICITOR FOR THE RESPONDENT: Withnalls

INDEPENDENT CHILDREN’S LAWYER

COUNSEL:

Ms Orwin

INDEPENDENT CHILDREN’S LAWYER

SOLICITOR:

Margaret Orwin Barrister

Orders

1. That this trial be adjourned part heard to a directions hearing at 9:30am (SA time) on 17 October 2008 by way of telephone.

2. That the father file and serve a medical report as to his current health within 14 days of the date hereof.

3. That the question of the costs of the mother and the Independent Children’s Lawyer be reserved to the adjourned hearing.

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

FAMILY COURT OF AUSTRALIA AT DARWIN

FILE NUMBER: DNC 431 of 2007

MR FARQUAR

Applicant

And

MS FARQUAR

Respondent

ex tempore reasons

1. This is a part-heard trial.  There have been difficulties with the trial resuming at this sitting because of Mr Farquar (“the father”) being bitten by a spider and suffering a reaction and having a fall and hurting his neck and back and ending up in hospital on 3 September 2008.

2. The matter was adjourned to today for the father to provide a medical report and also to see if he was recovered sufficiently for the trial to commence.

3. Today I have been provided with a medical report in the form of the clinical notes recorded by the hospital on 3 September 2008.  I receive that and mark as exhibit H2.  There is a photograph that I have received also of the father which will be part of that exhibit.

4. There is a separate document which has been handed up to me which bears no relevance to the father per se although it does to his family and I will return that through my Court Officer.

5. The father, unfortunately, has not been able to attend today.  He says that he still is having difficulty with his neck and back and is due to see his doctor today at 1.30pm.

6. Fortunately, I do not have to pursue the issue of the father’s health condition at the moment because separate to that, a difficulty in this case has been whether the trial should proceed now or be adjourned to await the outcome of the criminal proceedings which the father is facing.  I am told that the current state of play with those criminal proceedings is that there is a part-heard committal hearing which is due to be completed at the end of this month.  If the father is committed, he will be committed to the Supreme Court for trial and that will not take place until the first six months of next year.  That prospect, obviously, was one that inevitably was going to create difficulties with the running of this case in this Court.

7. I initially refused an application to adjourn the case by the father on the basis of submissions by Ms Holtham and Ms Orwin that we could still deal with the trial.  I was anxious to do that in the interests of the child rather than have this matter delayed but as I have looked at the documents and heard further submissions, I have rapidly come to the conclusion that it is not possible to complete this trial prior to the conclusion of these criminal proceedings.  Ms Holtham has today indicated that her instructions from her client are along those lines as well and Ms Orwin has also made the same submission to me.  With the father, of course, that has always been his position and he has confirmed that today.

8. Thus reluctantly I propose to adjourn this case, bit at this stage only for the reason of the need to complete the criminal proceedings.

9. In relation to the medical health of the father, we still need to receive proper medical reports about that in the context of an application for costs and I will be making an order for a further report to be provided by the father.

I certify that the preceding 9 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered 9 September 2008.

Associate