Kingley and Arndale - [2010] FamCA 967

FAMILY COURT OF AUSTRALIA

KINGLEY & ARNDALE

[2010] FamCA 967

FAMILY LAW – PROCEDURE – Oral application for adjournment – Application dismissed

Family Law Rules 2004 Rule 18.3

B & B (unreported) [1999] FamCA 1992
Cheung v The Queen (1999) 73 ALJR 1093
L & L Appeal EA96 of 1996, Full Court Family Court of Australia, 13 December 1996 (reported at (1997) FLC 92-729 but not in relation to adjournments)
Reisner & Reisner [2010] FamCA 473

APPLICANT:

Mr Kingley

RESPONDENT:

Ms Arndale

FILE NUMBER:

BRC

1363

2008

DATE DELIVERED:

5 October 2010

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

O’Reilly J

HEARING DATE:

5 October 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Anderson

SOLICITOR FOR THE APPLICANT:

Smith & Associates

COUNSEL FOR THE RESPONDENT:

Mr Baston

Direct Brief

COUNSEL FOR THE INDEPENDENT CHILDRENS LAWYER:

Ms Brasch

SOLICITOR FOR THE FOR THE INDEPENDENT CHILDRENS LAWYER:

Ms Dart
Legal Aid Queensland

Orders

The mother’s oral application for an adjournment of paragraphs 4, 5 and 6 of her application filed 30 June 2010 is dismissed.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 1363 of 2008

MR KINGLEY

Applicant

and

MS ARNDALE

Respondent

REASONS FOR JUDGMENT

This is an application by the mother by application in a case filed 30 June 2010, paragraphs 4, 5 and 6, that a child and parent issues assessment report 7 September 2009 and family report 30 April 2010 by Mr P, family consultant, be removed from the Court file and all copies of such documents be recovered from any person to whom such documents have been provided, that is, in effect, that Mr P be removed as the family consultant in the matter, that the independent children’s lawyer be discharged and that a new independent children’s lawyer and new family report writer be appointed.
The matter was listed before me on 27 August 2010. A day or so prior to that, Mr Baston of Counsel for the mother notified that the matter could not proceed as the mother had been diagnosed with a brain tumour. She subsequently has proceeded to surgery and unfortunately has been told that the tumour is characterised as a Grade 4 tumour. She is to undergo chemotherapy and radiation therapy. Regrettably I am told the prognosis for her is grave, at one to three years of life. The surgery and illness necessitated, as I have mentioned, that the listing on 27 August 2010 could not proceed. By arrangement with the parties it has been relisted before me today. Somewhat surprisingly, Mr Baston of Counsel, who appears on a direct brief, has on the mother’s behalf sought an adjournment of her application. He has made clear that the mother’s instructions are that if I do not grant an adjournment he will not continue as Counsel today to argue the mother’s application, but that the…

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 Kingley and Arndale

Details

AGLC: Kingley and Arndale [2010] FamCA 967
Case: [2010] FamCA 967
Decision Date: 5 October 2010

CaseChat Overview and Summary

In the matter of *Kingley and Arndale*, O’Reilly J of the Family Court of Australia considered an application by the mother. The specific dispute before the court concerned the mother's oral application for an adjournment of certain paragraphs within her application filed on 30 June 2010.

The primary legal issue before O’Reilly J was whether to grant the mother's oral application for an adjournment of paragraphs 4, 5, and 6 of her filed application.

O’Reilly J dismissed the mother's oral application for an adjournment. The court's reasoning and the legal principles applied in reaching this decision are not detailed in the provided extract, which only sets out the final orders.

The court ordered that the mother’s oral application for an adjournment of paragraphs 4, 5 and 6 of her application filed 30 June 2010 is dismissed.

Orders

Orders of the court

The mother’s oral application for an adjournment of paragraphs 4, 5 and 6 of her application filed 30 June 2010 is dismissed.

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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