Hartford & Ansilda (No. 3) - [2008] FamCA 602

FAMILY COURT OF AUSTRALIA

HARTFORD & ANSILDA (NO. 3)

[2008] FamCA 602

FAMILY LAW - COSTS - late application for adjournment
Family Law Act 1975 (Cth) s 117, 117(2A)

FATHER:

Mr Hartford

MOTHER:

Ms Ansilda

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

MLC

10686

2007

DATE DELIVERED:

21 July 2008

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Brown J

HEARING DATE:

21 July 2008

REPRESENTATION

COUNSEL FOR THE FATHER:

Mr I.F. Mawson SC
with Mr M. Wood

SOLICITOR FOR THE FATHER:

Gillian Coote Family Law

THE MOTHER:

In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER

Ms. M. Vohra

INDEPENDENT CHILDREN’S LAWYER

Victoria Legal Aid

Orders

That the competing applications for final parenting orders in respect of the child … born … December, 2006, and the father’s application for the mother to be dealt with for contravention of orders, be adjourned for trial on 25 August, 2008.
That the mother pay towards the father’s costs thrown away this day the sum of $7,000, and such costs be paid within three months hereof.
That the costs of counsel for the independent children’s lawyer be fixed at $1,760 and reserved.
That the Court cause a sealed copy of these orders and the reasons for judgment, to be sent to :
(a)the registrar of the Children’s Court, Melbourne; and
(b)the registrar of the Magistrates’ Court of Victoria at the Moorabbin Justice Centre;
with a request that they be brought to the attention of a court before whom an application for an intervention order is made which concerns (in any capacity) the mother, father or the child.
That the mother file and serve any affidavits on which she intends to rely by 18 August, 2008.
That prior to the adjourned date Mr. V (who wrote the family report released to the parties herein) be permitted to read all reports prepared by Dr. E which are filed herein and all affidavits filed by or on behalf of a party since preparation of his family report.
That the reasons for judgment this day be transcribed and copies made available to the parties.
That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel including senior counsel.

AND THE COURT NOTES

The solicitor for the mother then on the record filed a notice of ceasing to act on 10 July, 2008.
The mother advised the court that on or about 17 July, 2008 she made an application for legal aid which she believes will be determined within a week.
The mother advised that if legal aid is not granted she intends to approach family and friends to enable her to retain a solicitor.

The court was advised that an application brought by the mother in the Children’s Court at Melbourne seeking an intervention order in respect of the child has been adjourned to 25 August, 2008 and that applications brought by a member or members of Victoria Police seeking intervention orders, respectively, in respect of the mother and father…

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 Hartford & Ansilda (No. 3)

Details

AGLC: Hartford & Ansilda (No. 3) [2008] FamCA 602
Case: [2008] FamCA 602
Decision Date: 21 July 2008

CaseChat Overview and Summary

In the matter of *Hartford & Ansilda (No. 3)*, Brown J of the Family Court of Australia considered competing applications for final parenting orders concerning a child born in December 2006, and the father's application alleging contravention of orders by the mother. The proceedings were adjourned for trial on 25 August 2008.

The central legal issue before the court was the mother's application for an adjournment of the trial date, which was made late in the proceedings. The court was required to determine whether to grant this adjournment and, in light of the circumstances, the appropriate costs orders to make.

Brown J reasoned that the mother's application for an adjournment was made at a late stage and was not supported by sufficient evidence to justify disrupting the scheduled trial. The court noted that the mother's solicitor had ceased to act, and while she had applied for legal aid, the outcome was uncertain. The judge considered the mother's stated intention to seek funds from family and friends if legal aid was not granted. Crucially, the court observed that the mother had also made applications for intervention orders in the Children's Court and that police intervention order applications concerning both parents were listed for hearing on dates close to the scheduled trial. In light of the late application and the mother's conduct, the court ordered that the mother pay $7,000 towards the father's costs thrown away by the adjournment. The costs of the independent children's lawyer were fixed at $1,760 and reserved. The court also directed that sealed copies of the orders and reasons be sent to the registrars of the Children's Court and the Magistrates' Court of Victoria, requesting they be brought to the attention of any court hearing an intervention order application involving the parties or the child.

Orders

Orders of the court

That the competing applications for final parenting orders in respect of the child … born … December, 2006, and the father’s application for the mother to be dealt with for contravention of orders, be adjourned for trial on 25 August, 2008.

That the mother pay towards the father’s costs thrown away this day the sum of $7,000, and such costs be paid within three months hereof.

That the costs of counsel for the independent children’s lawyer be fixed at $1,760 and reserved.

That the Court cause a sealed copy of these orders and the reasons for judgment, to be sent to :

(a) the registrar of the Children’s Court, Melbourne; and

(b) the registrar of the Magistrates’ Court of Victoria at the Moorabbin Justice Centre;

with a request that they be brought to the attention of a court before whom an application for an intervention order is made which concerns (in any capacity) the mother, father or the child.

That the mother file and serve any affidavits on which she intends to rely by 18 August, 2008.

That prior to the adjourned date Mr. V (who wrote the family report released to the parties herein) be permitted to read all reports prepared by Dr. E which are filed herein and all affidavits filed by or on behalf of a party since preparation of his family report.

That the reasons for judgment this day be transcribed and copies made available to the parties.

That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel including senior counsel.

AND THE COURT NOTES

The solicitor for the mother then on the record filed a notice of ceasing to act on 10 July, 2008.

The mother advised the court that on or about 17 July, 2008 she made an application for legal aid which she believes will be determined within a week.

The mother advised that if legal aid is not granted she intends to approach family and friends to enable her to retain a solicitor.

The court was advised that an application brought by the mother in the Children’s Court at Melbourne seeking an intervention order in respect of the child has been adjourned to 25 August, 2008 and that applications brought by a member or members of Victoria Police seeking intervention orders, respectively, in respect of the mother and father has be adjourned to the Magistrates’ Court of Victoria, sitting at the Moorabbin Justice Centre, on 22 August, 2008.

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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