FINCH & SHIBO

[2014] FamCA 722

FAMILY COURT OF AUSTRALIA

FINCH & SHIBO [2014] FamCA 722

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournment

APPLICANT: Mr Finch

RESPONDENT: Ms Shibo

FILE NUMBER: BRC 2788 of 2009

DATE DELIVERED: 5 August 2014

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 5 August 2014

REPRESENTATION

FOR THE APPLICANT: Mr Finch in Person

FOR THE RESPONDENT: Ms Shibo appearing by telephone

Orders

1. The hearing of the interim orders sought by the Applicant contained in the Initiating Application filed 3 June 2014 is adjourned for hearing before his Honour Justice Forrest at 9.30 am on Tuesday, 28 October 2014.

1. The father shall not approach the mother in the precincts of the Court prior to the hearing of this matter at 9.30 am on 28 October 2014.

NOTATION

(A)If the respondent mother does not attend the hearing on 28 October 2014, the Court shall consider making the orders sought by the applicant father in default.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Finch & Shibo 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. The Application Initiating Proceedings that I gave the father leave to file and serve on the mother was listed before me today for hearing of his application for interim parenting orders.  When the matter was called on this morning the mother did not appear.  Having been told that she had some issues: (a) with retaining solicitors who were prepared to act for her, and that those issues revolved somewhat around concerns about being involved in a case as conflictual and volatile as this; and (b) that she also was busy studying for an exam or was participating in an exam, I considered it appropriate to have her called by telephone to see if she could make an appearance. That is what happened. 

2. I was being urged, of course, by the father, Mr Finch, to make orders by default in her absence in terms sought by him in his interim application. I was also being urged by him to immediately list the matter for a final trial in a year’s time to hear and determine his application for final orders in very similar terms.

3. I considered it appropriate to see if we could speak to the mother and get her to attend by telephone.  When the mother was called, she informed the Court, in response to some questions that I asked her, that she has had difficulty retaining solicitors to act for her because of the matter I mentioned before but also because she has been told that Legal Aid is no longer prepared to fund her in respect of these proceedings.

4. Satisfied that she has difficulties in respect of dealing with and coping with her interactions and relationships with Mr Finch, the father, and that she apparently still has some language based communication difficulties (I mean by that that English is not her first language and she still has not entirely acquired the capacity to communicate in a sound way in the English language),  and hearing from her that she opposes most of the proposed changes to the existing final orders that Mr Finch seeks and would like to be able to present a case of the reasons why she opposes these to this Court, I determined ultimately, guided by the principle that the best interests of the child are the Court’s paramount concern, and my knowledge of the history of this case, that it is indeed appropriate in the circumstances to adjourn the interim application to another date so as to enable the mother to retain legal representatives if she possibly can, and even if she cannot, so that she can seek some assistance in presenting her case to the Court in answer to the material that Mr Finch has presented in support of his application. 

5. Also now, I am satisfied, after having personally spoken to the mother, that she is aware of the absolute need for her to attend and be present at court on the hearing of the application on the next occasion. Indeed, I have told her now that if she does not appear on the next occasion she runs the real risk that Mr Finch will get the orders that he seeks in all their current form. 

6. With all of the interaction with the mother being on the record, I determined that it was in the child’s best interests to adjourn the hearing of this application for interim parenting orders to a day in October.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 5 August 2014.

Associate: 

Date:  2 September 2014