Harlen and Hellyar (No. 3) - [2020] FamCA 560

FAMILY COURT OF AUSTRALIA

HARLEN & HELLYAR (NO. 3)

[2020] FamCA 560

FAMILY LAW – PRACTICE AND PROCEDURE – trial fixed to commence this day – COVID-19 pandemic still underway – whether applicant should be forced on – balancing considerations – held, adjournment granted.

Biosecurity Act 2015 (Cth)
Public Health and Wellbeing Act 2008 (Vic)

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Capic v Ford Motor Company of Australia Ltd (Adjournment) [2020] FCA 486
Harlen & Hellyar (No. 2) [2020] FamCA 413

APPLICANT:

Ms Harlen

RESPONDENT:

Mr Hellyar

FILE NUMBER:

MLC

13634

2017

DATE DELIVERED:

7 July 2020

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

The Honourable Justice Wilson

HEARING DATE:

6 & 7 July 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr St. John QC

SOLICITOR FOR THE APPLICANT:

Peter Szabo Family Law

COUNSEL FOR THE RESPONDENT:

Mr P. O'Shannessy SC

SOLICITOR FOR THE RESPONDENT:

Mann Lawyers

Orders

The trial listed on 6 to 10 July 2020 is vacated.
This proceeding is re-listed for trial on 1 to 5 March 2021 and 8 to 12 March 2021.
This proceeding is listed for a compliance hearing on 1 February 2021 at 9:30am.
On or before 4pm on 25 January 2021 all parties file and serve any affidavit material and written submissions in relation to costs thrown away of and incidental to the adjournment of the trial previously fixed for five days between 6 and 10 July 2020.
The question of costs thrown away will be determined on 1 February 2021.

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 Harlen & Hellyar 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 13634 of 2017

Ms Harlen

Applicant

And

Mr Hellyar

Respondent

REASONS FOR JUDGMENT

(Ex tempore)

Introduction

Today should have been occupied by the second day of the trial of this proceeding. Instead, today is the second day of an application to adjourn the trial. If I accede to the applicant’s application for an adjournment, the trial of this proceeding on a revised 10 day estimated duration can only be accommodated in my docket in March of next year. The proceeding has been on foot since 2017. When fixing the case for trial in May of this year each party enthusiastically embraced the notion of an electronic trial. That trial should have commenced yesterday. Mr O’Shannessy of Senior Counsel for the respondent submitted that the respondent had done all he was required to do so…

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 Harlen and Hellyar (No. 3)

Details

AGLC: Harlen and Hellyar (No. 3) [2020] FamCA 560
Case: [2020] FamCA 560
Decision Date: 7 July 2020

CaseChat Overview and Summary

In the proceeding between Harlen and Hellyar (No. 3), Justice Wilson of the Supreme Court of Victoria was required to determine the question of costs thrown away as a consequence of the adjournment of a trial previously scheduled for 6 to 10 July 2020. The dispute concerned the allocation of responsibility for the costs incurred due to this adjournment.

The central legal issue before the Court was the assessment and apportionment of costs thrown away. This involved considering the circumstances leading to the adjournment and determining which party, if any, should bear the financial burden of the wasted trial preparation and listing.

Justice Wilson ordered that the trial previously listed for 6 to 10 July 2020 be vacated and re-listed for 1 to 5 March 2021 and 8 to 12 March 2021. A compliance hearing was scheduled for 1 February 2021, with directions for parties to file and serve affidavit material and written submissions concerning costs thrown away by 25 January 2021. The Court indicated that the question of costs thrown away would be determined on 1 February 2021.

Orders

Orders of the court

The trial listed on 6 to 10 July 2020 is vacated.

This proceeding is re-listed for trial on 1 to 5 March 2021 and 8 to 12 March 2021.

This proceeding is listed for a compliance hearing on 1 February 2021 at 9:30am.

On or before 4pm on 25 January 2021 all parties file and serve any affidavit material and written submissions in relation to costs thrown away of and incidental to the adjournment of the trial previously fixed for five days between 6 and 10 July 2020.

The question of costs thrown away will be determined on 1 February 2021.

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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