Fournier and Noelle (Adjournment Application) - [2007] FamCA 845

FAMILY COURT OF AUSTRALIA

FOURNIER & NOELLE (Adjournment Application)

[2007] FamCA 845

FAMILY LAW – PRACTICE AND PROCEDURE – ADJOURNMENTS - Mother’s application for an adjournment of final hearing to allow her to obtain legal representation, because of late delivery of father’s affidavits and her assertion that she has a medical condition for which investigative tests are to be carried on the Wednesday of the week of the trial – mother dispensed with legal representation of her own accord – mother can afford presentation – proceedings already adjourned on numerous occasions – start of hearing postponed to permit the mother time to read the father’s affidavits and court will not sit on the day of the mother’s medical tests – best interests of children considered – application for adjournment refused.

Family Law Act 1975 (C’th)

APPLICANT:

Mr Fournier

RESPONDENT:

Ms Noelle

INDEPENDENT CHILDREN’S LAWYER:

McBain Lawyers

FILE NUMBER:

MLF

6279

2003

DATE DELIVERED:

13 August 2007

PLACE DELIVERED:

Melbourne

JUDGMENT OF:

Bennett J

HEARING DATE:

13 August 2007

REPRESENTATION

THE APPLICANT:

In person

THE RESPONDENT:

In person

INDEPENDENT CHILDREN’S LAWYER

COUNSEL:

Ms H. Dellidis

INDEPENDENT CHILDREN’S LAWYER

SOLICITOR:

McBain Lawyers

Orders

That the mother’s application for an adjournment this day be refused.
That the independent children’s lawyer have leave to call Ms Michelle Crighton, solicitor, by telephone for the purpose of cross-examination or evidence in chief.
That the reasons for judgment this day be transcribed and that copies be made available to the parties.
That pursuant to Rule 19.50 of the Family Law Rules2004 this matter reasonably required the attendance of counsel.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Bennett delivered this day will for all publication and reporting purposes be referred to as Fournier and Noelle

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 6279 of 2003

MR FOURNIER

Father

And

MS NOELLE

Mother

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

(ex tempore)

This matter comes before me as the final defended hearing of proceedings concerning S born 25 April 1996 and T born 23 June 1999. The hearing was estimated to take not more than five days and is adjourned from 19 April 2007 when the matter was first listed for a defended hearing of two days duration. The mother, who represents herself, has made an application for an adjournment. The applicant father also represents himself. He opposes the adjournment. Mr McBain, who is the independent children's lawyer for T and S, is represented by Ms Dellidis of counsel. The independent children's lawyer opposes the adjournment. These reasons set out briefly why I will not allow the mother's application for an adjournment and will order that the matter proceed.
The mother's adjournment application appears to be based on three matters. First, she says that this is a matter of some complexity and "it looks to me like it would be better if I had a barrister". This matter is not, in the scheme of things and as…

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

Case: [2007] FamCA 845
Decision Date: 13 August 2007

CaseChat Overview and Summary

In the matter of Fournier and Noelle, heard by Bennett J, the application before the court concerned an adjournment sought by the mother. The precise nature of the underlying dispute is not detailed in the provided text, but it involved the mother, the father, and an independent children's lawyer.

The primary legal issue before the court was whether to grant the mother's application for an adjournment of the proceedings. A secondary issue arose regarding the ability of the independent children's lawyer to call a solicitor, Ms Michelle Crighton, to give evidence or be cross-examined by telephone.

Bennett J refused the mother's application for an adjournment. The court granted leave for the independent children's lawyer to call Ms Crighton by telephone, indicating that this was permissible for the purposes of either cross-examination or evidence in chief. The court also made orders for the transcription of its reasons and confirmed that the matter reasonably required the attendance of counsel, pursuant to Rule 19.50 of the Family Law Rules 2004.

Orders

Orders of the court

That the mother’s application for an adjournment this day be refused.

That the independent children’s lawyer have leave to call Ms Michelle Crighton, solicitor, by telephone for the purpose of cross-examination or evidence in chief.

That the reasons for judgment this day be transcribed and that copies be made available to the parties.

That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

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.