Finch and Shibo

[2015] FamCA 789

FAMILY COURT OF AUSTRALIA

FINCH & SHIBO [2015] FamCA 789

FAMILY LAW – PRACTICE AND PROCEDURE – Where the father makes an application for reinstatement of his proceedings which he previously discontinued – Where the mother opposes the application – Where the ICL submits it is appropriate to reinstate the application – Where the proceedings should be determined on their merits - Application granted.

Family Law Act 1975 (Cth)

APPLICANT: Mr Finch

RESPONDENT: Ms Shibo

INDEPENDENT CHILDREN’S LAWYER: Bruce Scott

FILE NUMBER: BRC 2788 of 2009

DATE DELIVERED: 28 April 2015

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 28 April 2015

REPRESENTATION

THE APPLICANT: By telephone

THE RESPONDENT: By telephone

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Scott

Parker Family Lawyers

Orders

1. The applicant father’s Initiating Application filed 3 June 2014 be reinstated.

2. The matter be listed for trial before his Honour Justice Forrest commencing at 10.00 am on Thursday, 13 August 2015 for two days of hearing.

3. The applicant father and the respondent mother each be at liberty to file and serve one affidavit of evidence in chief upon which he or she intends to rely at the trial, by close of business on 7 August 2015, and neither has liberty at the trial to rely on any previous affidavits filed.

4. The applicant father and the respondent mother shall attend appointments with Dr Q and Dr R as directed by the Independent Children's Lawyer.

5. The Independent Children's Lawyer is given leave to provide to the two independent experts, Dr Q and Dr R, material from the Court file at his discretion.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Finch & Shibo (No 2) 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 BRISBANE

FILE NUMBER: BRC 2788 of 2009

Mr Finch

Applicant

And

Ms Shibo

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This is Mr Finch’s application for reinstatement of his proceedings after he had previously discontinued them.

2. Mr Finch asserts that he should be permitted to reinstate his application because he simply experienced a “brain snap” when he lost his temper during a hearing before Registrar Spink which caused him to file his Notice of Discontinuance. He said that upon reflection soon thereafter, he realised he should not have done that and wanted to recommence his proceedings.

3. The mother opposes reinstatement, asserting she has had enough of the litigation.

4. I heard submissions from Mr Scott who is the Independent Children's Lawyer in the matter.  He submitted that it would be appropriate to allow Mr Finch to reinstate his application notwithstanding Ms Shibo’s opposition to any further litigation. 

5. I am satisfied in the circumstances that Mr Finch should be given leave to recommence his proceedings so that they can be ultimately determined on their merits and I order that his Initiating Application filed 3 June 2014 be reinstated.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 28 April 2015.

Associate: 

Date:  23 September 2015