Kolovos and Kolovos (Ruling No.2)
[2009] FMCAfam 1175
•1 September 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KOLOVOS & KOLOVOS (Ruling No.2) | [2009] FMCAfam 1175 |
| FAMILY LAW – Interim ruling. |
| State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 |
| Applicant: | MS KOLOVOS |
| Respondent: | MR KOLOVOS |
| File Number: | MLC 6862 of 2008 |
| Judgment of: | Burchardt FM |
| Hearing date: | 1 September 2009 |
| Date of Last Submission: | 1 September 2009 |
| Delivered at: | Melbourne |
| Delivered on: | 1 September 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr J. Fronistas |
| Solicitors for the Applicant: | Antippa Lawyers |
| Counsel for the Respondent: | Mr P. Davis |
| Solicitors for the Respondent: | Maria Barbayannis & Co. |
IT IS NOTED that publication of this judgment under the pseudonym Kolovos & Kolovos (Ruling No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 6862 of 2008
| MS KOLOVOS |
Applicant
And
| MR KOLOVOS |
Respondent
REASONS FOR JUDGMENT
(Ruling)
The High Court of Australia has just given us some further recent guidance in relation to all these sorts of matters and, as you will be aware, it has been said in relation to amendments to pleadings that the position as it was thought to be in State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 was wrong and that the Court’s time and the ordering of the Court’s affairs in case management principles and the like are by no means irrelevant to considerations such as these.
This particular matter arises in a slightly different way. It is to do with giving both sides a fair opportunity to present their case and to respond to the case presented against them.
In the face of the orders made by the Court on several occasions, and the fact that the case was adjourned prior to trial once before, one might have thought that evidence such as this would have been put on before. But, on balance, and not without considerable hesitation, I think that this evidence should be admitted because it might be said, and it is submitted, that it responds to a recent change in the landscape, namely the application in a case filed by the father on 4 August 2009, in which he, if I understand it correctly, for the first time articulates the position that the child should live primarily with him.
But, by the same token, in fairness to Mr Davis, this material should go on affidavit and the witness should not be called until that has been done.
I will reserve ruling upon any evidence to be called from the maternal grandmother until we have an affidavit indicating what is proposed she should say.
I would also point out that given that the maternal grandmother does not speak English, as I have been told or at least certainly not enough to contemplate giving evidence in English, that it is probably likely to save quite a lot of time. The affidavit will have to be drafted and then it will require the attestation as to translation and so on, but at least we will get the evidence-in-chief without the difficulties that tend to obtain with women some years, with perhaps not the most advanced educational advantage, and with certainly no fluency in English. So there is a real potential saving to the parties in putting her on affidavit anyway. So I will let the evidence in, but it has got to go on affidavit in both instances.
I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Burchardt FM
Associate: Ms B Evans
Date: 1 September 2009
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