Fielder and Fielder and Anor

[2019] FCCA 3902

FEDERAL CIRCUIT COURT OF AUSTRALIA

FIELDER & FIELDER & ANOR [2019] FCCA 3902

Catchwords:
FAMILY LAW – Parenting – adjournment application – whether the children shall spend time with their mother – where mother has been unable to obtain psychological assessment – where parties do not oppose adjournment.

Legislation:

Family Law Act 1975 (Cth) s.102NA

Applicant: MS FIELDER

First Respondent: MS FIELDER

Second Respondent: MR FIRTH

File Number: DNC 173 of 2016

Judgment of: Judge Young

Hearing date: 11 September 2019

Date of Last Submission: 11 September 2019

Delivered at: Darwin

Delivered on: 11 September 2019

REPRESENTATION

Counsel for the Applicant: Ms Franz

Solicitors for the Applicant: Darwin Family Law

Counsel for the First Respondent: Ms Noble

Solicitors for the First Respondent: Withnalls Lawyers

Counsel for the Second Respondent: Mr Story

Solicitors for the Second Respondent: Story & Associates

ORDERS

1. That the trial dates on 11 and 12 September 2019 be vacated and the matter be relisted for trial on 23 and 24 April 2020 at 10.00am allowing (two days).

2. That orders 12, 13 and 14 of the orders made 15 October 2019 in relation to filing of trial material remain in place.

3. That the application for costs be adjourned to 23 April 2020 at 9.30am.

THE COURT NOTES THAT:

A.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.

B.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.

C.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.

D.If s. 102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court. Orders Style.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 173 of 2016

MS FIELDER

Applicant

And

MS FIELDER

First Respondent

And

MR FIRTH

Second Respondent

REASONS FOR JUDGMENT

Ex Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is an adjournment application for a trial that was set down for two days today.  The matter concerns two children, X and Y, who are 13 and 10.  They currently live with their father four nights a week, and with the maternal grandmother three nights a week.  That is a settled arrangement.  It appears the real issue is what time the children should spend with their mother.

3. A family report, released in March, said that any overnight time the children spend with their mother should be subject to the mother’s engagement with a psychologist and an assessment.  That recommendation generally appears to be accepted across the bar table, as far as I can see, on behalf of the applicant maternal grandmother, the first respondent mother and the second respondent father.

4. The family report was released on 22 March 2019, almost six months ago, and the mother asserts that she did not receive that family report from her legal representative until late May and that position is not challenged.  In other words the applicant accepts that that is the case and the second respondent father does not wish to challenge it.

5. Given that the mother has filed an affidavit saying that she has taken steps to obtain a psychological assessment but in the relatively short time, some three and a half months, she says she has not been able to obtain it, which seems somewhat surprising, but in any event that is not challenged, she says she ought to have the trial adjourned.  That does not appear to be particularly vigorously opposed by the second respondent father and it is not opposed by the applicant maternal grandmother.

6. So, while that is extremely unsatisfactory, in view of the position taken by the parties, I see no real reason why I should force the matter on.  I will adjourn the matter for trial to 23 and 24 April 2020 and the trial directions I do not think need any alteration.  I will reserve the question of costs.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Judge Young

Date: 29 April 2020