Gingham & Gingham (No 2)

[2011] FamCA 1087

FAMILY COURT OF AUSTRALIA

GINGHAM & GINGHAM (NO 2) [2011] FamCA 1087

FAMILY LAW – Application for adjournment of trial dismissed

Family Law Act 1975 (Cth)

APPLICANT: Mr Gingham

RESPONDENT: Ms Gingham

INDEPENDENT CHILDREN’S LAWYER: Christine Vachon

FILE NUMBER: BRC 2720 of 2010

DATE DELIVERED: 15 February 2011

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 15 February 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Hamwood

SOLICITOR FOR THE APPLICANT: Crowley Greenhalgh Solicitors

THE RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Brasch

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Christine Vachon Solicitor

Orders

1. Application for adjournment is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Gingham & Gingham 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 2720 of 2010

Mr Gingham

Applicant

And

Ms Gingham

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. The Independent Children’s Lawyer seeks, in effect, that I receive an affidavit from a family consultant, Ms J, as part of her case.  On the last occasion, on 29 October 2010, when it was necessary to adjourn this matter part heard, I made an order at paragraphs 13 and 14 pursuant to section 65L of the Act.  That order was made over objection by counsel for the husband whose submissions were, in effect, that in this case, which has a long history, there was already a significant amount of evidence and, in particular, expert evidence.

2. I was unpersuaded by their argument, concluding at that time that the Court might be assisted by observations made by a family consultant within the context provided for by a section 65L order, noting, in particular, that there was a prospect, as paragraph 14 of the orders makes clear, that the family consultant would both speak to Mr H, a previous reporting expert, and have the opportunity to see X who, it should be noted, was about 13 at that time. 

3. Paragraph 14 of those orders also contemplates that the family consultant would prepare a short report prior to the resumption of this trial to be forwarded to each of the parties and that the family consultant be available for cross-examination at the resumption of the trial commencing today.

4. In the event, the report by Ms J was prepared and made available to the parties only yesterday.  Ms Brasch, counsel for the Independent Children’s Lawyer, informs the Court that Ms J is available in person for cross-examination this afternoon or at any time tomorrow.  Ms Gingham asserts that her information was that that wasn’t the case. 

5. Ms Gingham, who now and has at all times represented herself, applies for an adjournment.  She does so notwithstanding the fact that it is an uncontroversial fact that, whatever be the reasons for it, she has not seen her son now for three years and despite the fact that my other commitments in this Court mean that any further adjournment of this already adjourned hearing, which has a very sad and extremely unfortunate history, could not take place until at least July, that is, about five months hence.

6. Ms Gingham contends that she is disadvantaged by having received the report only yesterday.  The gravamen of her objection is, it seems, that she would seek to produce evidence before the Court that questions the veracity of the statements made by the child to Ms J and hence the resulting evaluation arrived at by Ms J. 

7. Bearing in mind Ms Gingham’s self-represented status, I asked her to particularise the evidence that she sought to adduce and the allegations or assertions within the report to which it would be directed.  I am not persuaded that I would in any event receive that evidence.  The issues  to which it would be directed are, it seems to me, not directly relevant to the issues confronting this Court. The central issue is that, for whatever reason and in a manner yet to be explored, a 13-year-old boy is expressing implacable opposition to seeing his mother. 

8. In arriving at this decision, I have very much in mind the mandatory requirements placed upon this Court by section 69ZN of the Act. Particularly relevant in that respect is principle number 5 contained in section 69ZN(7) of the Act which requires this Court to conduct parenting proceedings “…without undue delay and with as little formality and legal technicality and form as possible.”

9. This matter needs to be determined.  It needs to be determined not only for the parties whose interests are plainly secondary to those of the child but, more importantly, for the child.  He needs to know with certainty the result of these proceedings of which he is plainly and without doubt aware.

10. That, it seems to me, is the predominant consideration relevant to the application by the mother. That combines with the fact that I am not persuaded that there has not been the opportunity for her to address such issues as she raises in the now three years that this litigation has been pending in the Court and, in particular, in the period between October 2010 and now. Further, as I have said, the matters to which she wishes to direct evidence are not directly relevant to the central issues that I need to determine and, in particular, the relevant primary and additional considerations. 

11. For those reasons together with the undue delay that would be caused in not being able to accommodate this parenting matter until at least July this year, I refuse the application for adjournment.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 15 February 2011.

Associate: 

Date:  21 August 2012