Isles and Spurr

[2011] FamCA 818

FAMILY COURT OF AUSTRALIA

ISLES & SPURR [2011] FamCA 818

FAMILY LAW – PRACTICE AND PROCEDURE – Orders made that mother file all of her affidavit material by a fixed date - matter adjourned for final hearing

Family Law Act 1975 (Cth)
APPLICANT:	Mr Isles

RESPONDENT: Ms Spurr

FILE NUMBER: LNC400 of 2009

DATE DELIVERED: 26 October 2011

PLACE DELIVERED: Hobart

PLACE HEARD: Chambers

JUDGMENT OF: Benjamin J

HEARING DATE: 14 October 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Fitzgerald

SOLICITOR FOR THE APPLICANT: Legal Aid Commission

COUNSEL FOR THE RESPONDENT: Mr Guest

SOLICITOR FOR THE RESPONDENT: Ian Guest & Associates

COUNSEL FOR THE
INDEPENDENT CHILDREN’S LAWYER: Mr McViety

SOLICITOR FOR THE

INDEPENDENT CHILDREN’S LAWYER

McVeity and Associates

Orders

1. Order made by me on 22 September 2011 be varied to provide that the mother and her witnesses file and serve all affidavits by 4.00pm Monday 31 October 2011.

   IT IS NOTED

2. There is no objection to the mother providing by that time, or such later time as is agreed in writing between the parties and the Independent Children’s Lawyer, a psychiatric report as to the mother’s mental health provided that report is obtained in accordance with the Rules and the mother meet the costs of such report, and the report is provided in a timely way.

   IT IS FURTHER ORDERED

3. The application for adjournment is allowed and the proceedings are adjourned for four days hearing at Hobart commencing Monday 21 November 2011.

4. Costs of all parties be reserved.

IT IS DIRECTED

1. A transcript of the proceedings today be taken out and placed on the Court file.

   IT IS CERTIFIED

2. Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend

IT IS NOTED that publication of this judgment under the pseudonym Iles & Spurr is 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 HOBART

FILE NUMBER: LNC400/2009

Mr Isles

Applicant

And

Ms Spurr

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. Mr Isles and Ms Summers have one child M who is aged four and a half.  This matter is in the Magellan list as serious allegations have been made in relation to the abuse of the child.

2. This is an application for an adjournment of a hearing listed for three days commencing Wednesday the 9 November 2011 in the Launceston sittings of the Family Court.

3. It is a matter where I have indicated, in the past, that having regard to the history of this matter I should not determine the final hearing of the matter bearing in mind interim hearings that have occurred before me earlier in these proceedings.

4. The proceedings were listed for three days to commence 9 November 2011 and an expert report has been prepared by Mr J.

5. The mother has had difficulties filing material and was to file material by 6 October 2011.  In submissions her counsel says that the mother is pregnant with another child, and that with his current workload, he would be unable to prepare affidavits until 31 October 2011.

6. With the consent of counsel for the father and the Independent Children’s Lawyer I have extended the time to enable that affidavit to be filed.

7. The mother seeks an adjournment of the proceedings on four bases namely: she has not been able to prepare documents to file as Legal Aid has not been approved (her counsel submits that she is now privately funded); the need to obtain an up to date psychiatric report bearing in mind issues of mental health raised by the single expert Mr J; the mother and her present partner have recently moved home and the mother is pregnant and suffering from morning sickness.

8. Counsel for the father asserted that these proceedings had been listed for hearing on a number of occasions since November 2010 and this is a matter where the single expert has essentially recommended a change of the parenting arrangements.  Whilst the mother is unable to prepare affidavits she has had time to move and that the circumstances set out in the report of Mr J had been known to the mother since August of this year.

9. Essentially the submission on behalf of the father is that the mother should have been able to have her case in order with all of the time given to date.  I have had regard to the court file in this respect.

10. The Independent Children’s Lawyer opposed the application for adjournment.

11. A lengthy adjournment will not serve the interests of this child having regard to the material contained in the report of Mr J.

12. This Court has made enquiries of other Judges and ascertained there is a Judge available to hear this matter for five days commencing Monday the 21st November 2011.

13. Having regard to that circumstance the application for adjournment is granted there being another Judge available.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 26 October 2011.

Associate:

Date:              26 October 2011