Forester & Forester - [2024] FedCFamC1F 352

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Forester & Forester [2024] FedCFamC1F 352

File number MLC 106 of 2022

Judgment of WILSON J

Date of judgment 24 May 2024

Catchwords FAMILY LAW – PRACTICE & PROCEDURE – late adjournment application by the applicant day before commencement of trial – adjournment application dismissed.

Cases cited
Aon Risk Services Australia Pty Ltd v Australia National University (2009) 239 CLR 175

Moy & Pao (No.2) [2020] FamCA 1092

Division Division 1 First Instance

Number of paragraphs 10

Date of last submission 24 May 2024

Date of hearing 24 May 2024

Place Melbourne

Applicant No appearance

Counsel for the respondent Mr J. Rattray

Solicitor for the respondent TFA Legal

Counsel for the independent children's lawyer Mr M. Leeton

Solicitor for the independent children's lawyer Taft Lawyers
ORDERS

MLC 106 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN
MS FORESTER

Applicant

AND
MR FORESTER

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

WILSON J

DATE OF ORDER:

24 MAY 2024

THE COURT ORDERS THAT –
1.The adjournment application is dismissed.
2.The trial will procced on an undefended basis.

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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Forester & Forester has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
WILSON J

This proceeding was transferred to my docket by order of the Chief Justice made on 4 December 2023. Prior to the case being placed in my docket applications and appearances were conducted on a number of occasions during which the applicant did not appear. Those included 4 December 2023 when counsel for the ICL and the father appeared, 30 January 2024 when counsel for the husband and the ICL likewise appeared, 4 April 2024 when the husband and the ICL were represented but the applicant was not and 15 April 2024 when the parties were informed that if the applicant failed to appear on 24 May 2024 the trial would proceed on an undefended basis.
Today I was told that the applicant has been represented at various times through the life of this litigation by not less than 10 firms of solicitors. No trial affidavit material has been filed by the applicant.
Being informed on 24 April that the proceeding may proceed on an…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Forester & Forester [2024] FedCFamC1F 352
Case: [2024] FedCFamC1F 352
Decision Date: 24 May 2024

CaseChat Overview and Summary

The applicant, Ms Forester, applied for an adjournment of the trial day before it was scheduled to commence. The respondent, Mr Forester, opposed the application, which was heard by Wilson J in the Federal Circuit and Family Court of Australia. The application was made late, and the court was required to consider the appropriateness of granting the adjournment under the circumstances.

The central legal issue was whether the court should grant a late application for an adjournment, particularly given the lack of any reasonable explanation for the delay in lodging the application. The court considered the principles of fairness and the importance of maintaining the efficiency of the court's processes. It also noted the potential impact on the respondent and the Independent Children's Lawyer, who had already prepared for the trial.

Wilson J determined that the application was made without any reasonable explanation for the delay, which was a critical factor in the decision. The court emphasised the importance of timeliness in such applications and the need for parties to adhere to procedural requirements. Given the lack of a compelling reason for the late application, the court dismissed the application and directed that the trial proceed on an undefended basis. The reasoning was grounded in the need to ensure the expeditious and fair administration of justice.

The court's final order was that the adjournment application be dismissed and that the trial proceed as scheduled. This outcome underscored the court's commitment to upholding procedural integrity and the efficient use of court resources.

Orders

Orders of the court

MLC 106 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN

MS FORESTER

Applicant

AND

MR FORESTER

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

WILSON J

DATE OF ORDER:

24 MAY 2024

THE COURT ORDERS THAT –

1. The adjournment application is dismissed.

2. The trial will procced on an undefended basis.

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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number	MLC 106 of 2022
Judgment of	WILSON J
Date of judgment	24 May 2024
Catchwords	FAMILY LAW – PRACTICE & PROCEDURE – late adjournment application by the applicant day before commencement of trial – adjournment application dismissed.
Cases cited	Aon Risk Services Australia Pty Ltd v Australia National University (2009) 239 CLR 175 Moy & Pao (No.2) [2020] FamCA 1092
Division	Division 1 First Instance
Number of paragraphs	10
Date of last submission	24 May 2024
Date of hearing	24 May 2024
Place	Melbourne
Applicant	No appearance
Counsel for the respondent	Mr J. Rattray
Solicitor for the respondent	TFA Legal
Counsel for the independent children's lawyer	Mr M. Leeton
Solicitor for the independent children's lawyer	Taft Lawyers

MLC 106 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN	MS FORESTER Applicant
AND	MR FORESTER Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	WILSON J
DATE OF ORDER:	24 MAY 2024