Hendry and Hendry

[2007] FamCA 1372

FAMILY COURT OF AUSTRALIA

HENDRY & HENDRY [2007] FamCA 1372

FAMILY LAW – JURISDICTION – Forum issue – Adjournment – Unrepresented party

Family Law Act 1975 (Cth)

APPLICANT: Mrs Hendry

RESPONDENT: Mr Hendry

FILE NUMBER: SYC 3997 of 2007

DATE DELIVERED: 22 November 2007

PLACE DELIVERED: Sydney

JUDGMENT OF: The Hon. Justice Rose

HEARING DATE: 22 November 2007

REPRESENTATION

SOLICITOR FOR THE APPLICANT:  In person

COUNSEL FOR THE RESPONDENT: Mr G Richardson SC

SOLICITOR FOR THE RESPONDENT: Pearson Family Lawyers

Orders

1. That the proceedings be adjourned for hearing.

2. That the earliest available date for hearing be fixed to take place in either the Sydney Registry or the Parramatta Registry.

3. That the possibility of the matter being listed in the week of the 10^th December 2007 will be able to be determined by the Honourable Justice Rose during the 29^th November 2007 regardless of the fixing of a new date for hearing in the interim.

4. That the respondent’s costs of the day be reserved.

DIRECTIONS:

1. That any updating material on behalf of the parties shall be filed and served no later than three (3) working days prior to the new date fixed for hearing.

NOTATIONS:

A.That Senior Counsel for the respondent is available for the hearing on the 14^th December 2007.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

File number:  SYC 3997 of 2007

MRS HENDRY

Applicant

And

MR HENDRY

Respondent

REASONS FOR JUDGMENT

1. These proceedings were listed before me today for hearing consequent upon having been included in today’s list of reserved matters.

2. The applicant appears unrepresented.  The respondent is represented by Senior Counsel.

3. At issue is a forum argument to determine whether or not the pending proceedings in this Court should be allowed to proceed, having regard to past proceedings which have been heard and determined in the appropriate Court in the state of Hawaii.

4. I raised with the wife the terms of the legal issues that fall for consideration, and the extent to which they may be attracted by the facts in the case.  The applicant informed me that she would like an opportunity to obtain legal advice, albeit that she was not confident of being able to obtain such advice given that she was now without funds for that purpose, and was unaware of whether or not any application for legal aid would be successful.

5. I have read all of the material that I was provided with in accordance with the parties’ respective lists.

6. In my view there are questions of legal principle of some complexity, and certainly substantial portions of the affidavit relied upon by the wife which are open to objection on behalf of the respondent, as indicated in his helpful case outline document.

7. It is well established that for an unrepresented litigant facing proceedings of some complexity in particular, that a reasonable opportunity should be received for appropriate legal advice to be given and also legal representation should be afforded to that litigant.

8. In my view that is particularly so in a matter such as this which has the complexity to which I have referred, and where in the background are considerations of the child of the parties who currently is living with the applicant. I appreciate that the respondent has ensured that he is legally represented, and from his viewpoint the matter is ready to proceed.  However, I do note that it was not until yesterday that a further affidavit was sworn by the respondent, served that day and apparently came to the notice of the applicant early this morning.  In addition, I accept the assurance given by senior counsel for the respondent that the case outline document whilst sent to the applicant yesterday afternoon may well not have been opened in terms of email and read by her until this morning.

9. I have made enquiries of the Case Management Judge and there is a possibility that the matter could be listed for hearing before me in the week commencing 10^th December next.  However, I will not be in a position to actually fix a date in that week until 29^th November 2007.

10. Due to the applicant being unrepresented, the matters of complexity to which I have referred, quite apart from the late service of a further affidavit on behalf of the respondent, I am reluctantly prepared to grant the adjournment bearing in mind also the possibility at this stage that the period of the adjournment may only be a short one.  In any event I will be granting leave to obtain the earliest available hearing date whether in this Registry or at Parramatta on the basis of a hearing of one day.

11. I raised with the parties my past friendship with the husband of the psychologist who has sworn an affidavit and provided a report on behalf of the wife.  Senior Counsel for the respondent has informed me that no application for disqualification will be made on behalf of his client.  The wife also informed me that she did not have any objection to me presiding over the trial.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose

Associate

Dated:  23 November 2007