GORMAN & HUFFMAN

[2015] FamCA 405

FAMILY COURT OF AUSTRALIA

GORMAN & HUFFMAN [2015] FamCA 405

FAMILY LAW – PRACTICE AND PROCEDURE – Stay of proceedings – Principles in respect of stays considered – Procedural fairness – Need for further evidence to be obtained by the Independent Children’s Lawyer before determining stay application relating to parenting.

Family Law Act 1975 (Cth)

APPLICANT: Ms Gorman

RESPONDENT: Mr Huffman

INDEPENDENT CHILDREN’S LAWYER: Mr Naidovski

FILE NUMBER: PAC 3882 of 2011

DATE DELIVERED: 12 May 2015

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 12 May 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Connor

SOLICITOR FOR THE APPLICANT: Ms Prats of Martin Street Lawyers

COUNSEL FOR THE RESPONDENT: Mr Maddox

SOLICITOR FOR THE RESPONDENT: Mr McGookin of Caldwell Martin Cox

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Naidovski of Legal Aid NSW Parramatta Family Law

Orders

1. The determination of the application for stay and other orders relating to parenting contained in the mother’s Application in a Case filed 29 April 2015 is adjourned to a date to be fixed by arrangement between my Associate, the Independent Children’s Lawyer and the parties noting that the earliest date will be allocated to it.

2. The matter is to be adjourned for mention to 27 May 2015 at 4.00pm or such earlier date as arranged upon the Independent Children’s Lawyer notifying my Associate that documents have been returned under s 69ZW from both NSW Police and the Department of Family and Community Services.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Gorman & Huffman 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 PARRAMATTA

FILE NUMBER: PAC 3882  of 2011

Ms Gorman

Applicant

And

Mr Huffman

Respondent

REASONS FOR JUDGMENT

1. This is an application to adjourn a stay which had been listed today.  It is obviously most unfortunate that there be any application to adjourn a stay because by definition an application for a stay is an urgent matter which needs to be dealt with.

2. However, this is an unusual matter in the sense that some material relating to some significant allegations, as I understand it, made against the father has only recently been brought before the Court.  It is unusual in that those allegations relate to that period between the last day of hearing of the matter and when it was adjourned for judgment to be given.

3. In any event the Independent Children’s Lawyer says that they are serious allegations and that the Court needs to have that information.  Certainly, it would not be affording procedural fairness to the father and it also may mean that an incomplete account of whatever the events are is put before the Court if the matter is dealt with only on the version of the mother.

4. It is not only reasonable for Mr Naidovski to wish to put more complete evidence before the Court but does fall completely within his responsibilities as a child representative.  He has sought that the Court make an order requiring the NSW Police and the Department of Family and Community Services to provide information in relation to these allegations.  His enquiries indicate that while the Department of Family and Community Services may have this information in a matter of days it could take somewhat longer in the case of NSW Police.  Accordingly, as the mother does not oppose the adjournment in these circumstances and the father does not wish to be heard on it, I propose adjourning the stay proceedings so far as they relate to parenting for as short a time as possible and make the following orders:

   (1)The determination of the application for stay and other orders relating to parenting contained in the mother’s Application in a Case filed 29 April 2015 is adjourned to a date to be fixed by arrangement between my Associate, the Independent Children’s Lawyer and the parties noting that the earliest date will be allocated to it.

   (2)The matter is to be adjourned for mention to 27 May 2015 at 4.00pm or such earlier date as arranged upon the Independent Children’s Lawyer notifying my Associate that documents have been returned under s 69ZW from both NSW Police and the Department of Family and Community Services.

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 12 May 2015.

Associate: 

Date:  26 May 2015