FOWLES & FOWLES - [2019] FamCA 1011

FAMILY COURT OF AUSTRALIA

FOWLES & FOWLES

[2019] FamCA 1011

FAMILY LAW – PROPERTY – where hearing has been prolonged – where husband is upset – where counsel for husband says husband is unfit to give evidence today – where court assesses husband as distressed and accepts that he may not do himself justice if required to be cross examined further – adjournment.
APPLICANT:	Ms Fowles

RESPONDENT:

Mr Fowles

FILE NUMBER:

MLC

8587

2015

DATE DELIVERED:

8 November 2019

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Bennett J

HEARING DATE:

8 November 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Sheales

SOLICITOR FOR THE APPLICANT:

Taussig Cherrie Fildes

COUNSEL FOR THE RESPONDENT:

Mr North SC

SOLICITOR FOR THE RESPONDENT:

Lander & Rogers

Orders

1.The time for compliance by Mr HH with the subpoena bearing the filing date 11 November 2019 (which is obviously wrong) be and is hereby extended to 10.00 am on Wednesday 4 December 2019.
2.I reserve liberty to any party to the proceedings and to the recipient to the subpoena to apply to object to the subpoena and/or for the purpose of limiting the documents to be produced on subpoena.
3.The solicitors for the wife be responsible for serving a sealed copy of this Order on Mr HH by electronic means as soon as practicable.
4.My reasons for decision this day be transcribed and when settled placed on the Court file and a copy provided to the parties.
5.This matter be otherwise adjourned to a date to be fixed and notified to the parties in writing.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Fowles & Fowles has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 8587 of 2015

MS FOWLES

Applicant

And

MR FOWLES

Respondent

EX TEMPORE REASONS FOR JUDGMENT

This matter was listed for the 25^th day of trial today, when the husband was to resume being cross-examined by Mr Sheales for the wife in what I calculate is approximately the 15^th day of his cross-examination. From quite early in the day the husband attended Court and was visibly upset. He was of very high colour; he was sobbing; and appeared to be in a reasonably high state of anguish sitting in Court behind senior counsel and junior counsel. The matter was then stood down.
At one point the husband was left alone in Court without his representatives for what I am told is two or three minutes, but certainly it…

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.

Continue reading FOWLES & FOWLES

Details

AGLC: FOWLES & FOWLES [2019] FamCA 1011
Case: [2019] FamCA 1011
Decision Date: 8 November 2019

CaseChat Overview and Summary

In *Fowles & Fowles*, Bennett J of the Family Court of Australia considered an application for an adjournment of proceedings. The dispute involved property settlement between the parties, Mr and Mrs Fowles. The hearing had been ongoing for a significant period, and counsel for the husband informed the court that his client was upset and potentially unfit to continue giving evidence that day.

The central legal issue before the court was whether to grant an adjournment of the proceedings to allow the husband to recover and potentially give evidence at a later date. The court was required to assess the husband's condition and determine if requiring him to continue with cross-examination would prejudice his ability to present his case effectively.

Bennett J accepted that the husband appeared distressed and that he might not do himself justice if compelled to continue giving evidence. The court therefore exercised its discretion to grant an adjournment. The reasons for this decision were to be transcribed and placed on the court file.

The court made several orders, including extending the time for compliance with a subpoena by Mr HH to 10.00 am on 4 December 2019. Liberty was reserved for any party or the recipient of the subpoena to apply to object to it or limit the documents to be produced. The solicitors for the wife were ordered to serve a sealed copy of the order on Mr HH. The matter was otherwise adjourned to a date to be fixed.

Orders

Orders of the court

1. The time for compliance by Mr HH with the subpoena bearing the filing date 11 November 2019 (which is obviously wrong) be and is hereby extended to 10.00 am on Wednesday 4 December 2019.

2. I reserve liberty to any party to the proceedings and to the recipient to the subpoena to apply to object to the subpoena and/or for the purpose of limiting the documents to be produced on subpoena.

3. The solicitors for the wife be responsible for serving a sealed copy of this Order on Mr HH by electronic means as soon as practicable.

4. My reasons for decision this day be transcribed and when settled placed on the Court file and a copy provided to the parties.

5. This matter be otherwise adjourned to a date to be fixed and notified to the parties in writing.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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