Gerder & Anor and Lambourgh

[2010] FamCA 1117

FAMILY COURT OF AUSTRALIA

GERDER AND ANOR & LAMBOURGH [2010] FamCA 1117

FAMILY LAW – CHILDREN – interim – adjournment application

Family Law Act 1975 (Cth)

1st APPLICANT: Ms Gerder

2nd APPLICANT: Ms Ardle-Gerder

RESPONDENT: Mr Lambourgh

INDEPENDENT CHILDREN’S LAWYER: Ms Webber

FILE NUMBER: SYC 1214 of 2009

DATE DELIVERED: 2 December 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 2 December 2010

REPRESENTATION

SOLICITOR FOR THE 1ST APPLICANT: Kitchington Solicitors

COUNSEL FOR THE RESPONDENT: Mr P. Batey

SOLICITOR FOR THE RESPONDENT: Broun Abrahams Burreket

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders

1. Leave granted to the father to make an oral application to vacate the hearing due to commence 31 January 2011 for five days before Stevenson J.

2. The father’s oral application is dismissed. 

IT IS NOTED that publication of this judgment under the pseudonym Gerder and Anor & Lambourgh is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1214 of 2009

MS GERDER AND MS ARDLE-GERDER

Applicant

And

MR LAMBOURGH

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. In this matter the father has made an application to vacate hearing dates in respect of the matter which has now been listed before Stevenson J on 31 January 2011 for five days.  He had his lawyers write a letter on 15 November 2010 which was copied to the court and said that they were instructed that the father would be travelling to the United States of America and Germany on a business trip, commencing 16 January 2011, and is not expected to return to Sydney until February 2011.  The letter did not indicate the precise date that the father would be returning in February 2011.  The court, of its own motion, re-listed the matter, given the contents of the letter that had been written by his solicitors.  The father made no application to vacate the hearing date and, consequently, there is no affidavit evidence from him in relation to the application that he has now made orally through his counsel.   

2. The father’s solicitors have also written a letter that indicates that the independent expert, the single expert, Dr W, would not be available between 28 February and 23 March. 

3. This is a matter which had been previously set down for hearing on two occasions and, for reasons which are not a matter of relevance for this application, two judges of this court have disqualified themselves from hearing the matter.  I am told and I accept that Dr W’s report of May 2010 makes a recommendation that the child be returned to ordinarily live with the maternal-grandmother. 

4. The solicitor for the maternal-grandmother read part of that report which indicated that Dr W had some apprehension about the child’s wellbeing if that did not take place.  I don’t know whether or not at the end of the hearing that will in fact be what the trial judge does, but this is important, as yet untested evidence, that I have to take into account in the context of whether or not I vacate hearing dates. 

5. The hearing was originally set down to take 10 days.  It has been reduced to five.  I accept from counsel for the father that there was an attempt to get it down to four in order to fit it in this month and I note his assertion that he was not able to be negotiated with the other parties.  Although I have some assertions from counsel for the father, I have no evidence about the husband’s inability to involve himself in commercial activities unless he is personally present overseas, I am not prepared to accept that the father has fully explored his options in relation to doing his business by electronic means.

6. In any event, the priority in this matter and for this court has to be what is in the child’s best interests and it is clearly in the child’s best interests to try and have a proper airing of the issues in this case as soon as is possible. 

7. If the dates at the end of January are lost, then Dr W’s unavailability will make it very difficult for this court to provide five days of hearing time any time this side of the end of March.  That will be almost one year after Dr W’s initial recommendation. 

8. Consequently, for the reasons I’ve given, I make an order dismissing the father’s application for vacation of the hearing dates.

I certify that the preceding six (6) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts delivered on 2 December 2010.

Associate: 

Date:  7.12.2010