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Lambard and Lambard & Ors

Lambard and Lambard & Ors

Case [2020] FamCA 789 25 August 2020

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FAMILY COURT OF AUSTRALIA

LAMBARD & LAMBARD AND ORS

[2020] FamCA 789

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournment – Where the father seeks an adjournment of the final hearing to allow for the preparation of a single expert report in respect of the mother’s mental health – Where the paternal grandmother supports that Application – Where the father and the paternal grandmother contend the mother’s mental health is a live issue in the proceedings – Where the mother and the maternal grandmother oppose the Application – Where current interim Orders allow for the mother to spend time with the child while in the care of the maternal grandmother – Consideration of balancing fairness to the parties against efficiency of litigation process – Consideration of the main purpose of the Family Law Rules 2004 (Cth) – Whether the adjournment is appropriate – Orders made in accordance with the Application – Consideration of the question of cost of an additional expert report – Order made for the father to initially meet the cost of the single expert report.

Family Law Act 1975 (Cth) s 69ZQ
Family Law Rules 2004 (Cth) r 1.04

Ducatti & Tritton [2018] FamCA 979

APPLICANT:

Mr Lambard

FIRST RESPONDENT:

Ms Lambard

SECOND RESPONDENT:

Ms Dabell

THIRD RESPONDENT:

Ms M Lambard

FILE NUMBER:

SYC

2664

2020

DATE DELIVERED:

25 August 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

McClelland DCJ

HEARING DATE:

25 August 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Christie SC

SOLICITOR FOR THE APPLICANT:

Linden Legal

COUNSEL FOR THE 1ST RESPONDENT:

Ms Lioumis

SOLICITOR FOR THE 1ST RESPONDENT:

McAuley Hawach Lawyers

COUNSEL FOR THE 2ND RESPONDENT:

Mr Kenny

SOLICITOR FOR THE 2ND RESPONDENT:

Matthews Folbigg Pty Ltd

COUNSEL FOR THE 3RD RESPONDENT:

Mr Harper

SOLICITOR FOR THE 3RD RESPONDENT:

Mitchell Lawyers

Orders

The final hearing of this matter listed for five (5) days commencing on 31 August 2020 is adjourned for final hearing over seven (7) days commencing at 10.00am on 14 December 2020.
Within 14 days of the date of these Orders, the parties are to confer regarding the appointment of a single expert psychiatrist to provide a report concerning the mother’s mental health with the consultation to be in respect to:
(a)       the identity of the single expert; and
(b)       the letter of instruction; and
(c)       Documentation to be provided to the single expert.
The costs of the single expert will initially be met by the father but that issue of payment will be finally determined at the hearing of the matter.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Lambard & Lambard has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of…

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 Lambard and Lambard & Ors

Details

AGLC: Lambard and Lambard & Ors [2020] FamCA 789
Case: [2020] FamCA 789
Decision Date: 25 August 2020

CaseChat Overview and Summary

In *Lambard and Lambard & Ors*, heard by McClelland DCJ, the proceedings concerned a dispute between the parties, presumably relating to family law matters given the reference to a mother's mental health and the father's initial responsibility for expert costs. The matter was before the court for a final hearing.

The primary legal issue before the court was the management of evidence concerning the mother's mental health, specifically the need for expert psychiatric assessment. This involved determining the process for appointing a single expert psychiatrist, the content of the instructions to be provided to that expert, and the documentation that would be supplied. The court also had to consider the interim arrangement for the payment of the expert's fees.

McClelland DCJ ordered an adjournment of the final hearing to allow for the appointment of a single expert psychiatrist. The parties were directed to confer within 14 days regarding the selection of the expert, the terms of the letter of instruction, and the documents to be provided. The father was ordered to initially bear the costs of this expert, with the final determination of this cost allocation to be made at the final hearing. The final hearing was rescheduled to commence on 14 December 2020, with seven days allocated.

Orders

Orders of the court

The final hearing of this matter listed for five (5) days commencing on 31 August 2020 is adjourned for final hearing over seven (7) days commencing at 10.00am on 14 December 2020.

Within 14 days of the date of these Orders, the parties are to confer regarding the appointment of a single expert psychiatrist to provide a report concerning the mother’s mental health with the consultation to be in respect to:

(a) the identity of the single expert; and

(b) the letter of instruction; and

The costs of the single expert will initially be met by the father but that issue of payment will be finally determined at the hearing of the matter.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Lambard and Lambard & Ors [2020] FamCA 789

Most Recent Citation

Lambard and Lambard & Ors (No 2) [2020] FamCA 858

Cases citing this decision · 3 of 3 shown

Lambard & Lambard (No. 4)
[2021] FamCA 47 Para 2

…red by Dr NN who was appointed as a single expert for reasons outlined in my decision dated 14 October 2020 (“the October 2020 decision”).[2] [1] [2020] FamCA 789 [2] [2020] FamCA 858…
Lambard and Lambard & Ors (No 3)
[2020] FamCA 879 Para 3

…between the parties is set out in my reasons for judgment dated 26 May 2020,[1] 25 August 2020, [2] and 14 October 2020.[3] [1] [2020] FamCA 405. [2] [2020] FamCA 789. [3] [2020] FamCA 858.…
Lambard and Lambard & Ors (No 2)
[2020] FamCA 858 Para 3

…until 14 December 2020. The purpose of the adjournment was to enable the parties to obtain additional evidence from a single expert psychiatrist. [2] [2020] FamCA 789.…

View all 3 citing cases →

Cases cited in this decision · 13 of 13 shown

Ducatti and Tritton and Anor
[2018] FamCA 979 Para 3

…riate to grant the adjournment. In so doing, I have considered the following relevant principles as summarised in the matter of Ducatti and & Tritton [2018] FamCA 979 at [14]-[18], as follows: 14. The relevant law in respect to adjournments generally has been set out in a number of cases. In Gadde v Gadde [2015] Fa…
Hart v Deputy Commissioner of Taxation
[2016] FCA 250 Para 3

…per McHugh J. 15. Also of relevance is a useful summary provided in the decision of Edelman J in Hart v Deputy Commissioner of Taxation [2016] FCA 250 (“ Hart’s case ”). In that case, his Honour referred to the decision of Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75 at [42], where the Court said:…
Gadde & Gadde
[2015] FamCA 617 Para 3

…FamCA 979 at [14]-[18], as follows: 14. The relevant law in respect to adjournments generally has been set out in a number of cases. In Gadde v Gadde [2015] FamCA 617 at [18] to [22], I endeavoured to summarise relevant principles as follows: 18. In State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146, Kirb…
Luck v Chief Executive Officer of Centrelink
[2015] FCAFC 75 Para 3

…016] FCA 250 (“ Hart’s case ”). In that case, his Honour referred to the decision of Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75 at [42], where the Court said: In considering an application for an adjournment, issues particular to the parties and the circumstances of the case must be considered. T…
Nabers & Nabers
[2011] FamCAFC 145 Para 3

…ly”: Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175, as referred to by the Full Court in Nabers & Nabers [2011] FamCAFC 145 at [51]. 21. However, it is a fundamental principle of justice that a person appearing before a court of law is given the opportunity of presenting mater…
Aon Risk Services Australia Ltd v Australian National University
[2009] HCA 27 Para 3

…onsiderable emphasis on the importance of dealing with cases expeditiously”: Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175, as referred to by the Full Court in Nabers & Nabers [2011] FamCAFC 145 at [51]. 21. However, it is a fundamental principle of justice that a person appe…
Noelle & Fournier
[2009] FamCA 328 Para 3

…sion is made by that court: Allesch v Maunz (2000) 203 CLR 172 at 184 – 85; Jones v National Coal Board [1957] 2 QB 55 at 67, Noelle & Fournier [2009] FamCA 328; Nabers & Nabers [2011] FamCAFC 145. 22. In that context, “proper consideration needs to be given to the particular disadvantages suffered by a self-repres…
Anton & Malitsa (No. 2)
[2009] FamCA 242 Para 3

…ideration of the resources of the Court, its rules and its management and also the need to consider justice for both parties: Anton & Malitsa (No. 2) [2009] FamCA 242. 19. Litigants, whether represented or unrepresented, should be aware that the time of a court is a public resource which must be managed effectively…
Allesch v Maunz
[2000] HCA 40 Para 3

…senting material and making submissions relevant to issues being considered by the court before a decision is made by that court: Allesch v Maunz (2000) 203 CLR 172 at 184 – 85; Jones v National Coal Board [1957] 2 QB 55 at 67, Noelle & Fournier [2009] FamCA 328; Nabers & Nabers [2011] FamCAFC 145. 22. In that contex…
Queensland v JL holdings Pty Ltd
[1997] HCA 1 Para 3

…v Gadde [2015] FamCA 617 at [18] to [22], I endeavoured to summarise relevant principles as follows: 18. In State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146, Kirby J discussed why an adjournment application requires a balancing exercise to be undertaken. That exercise involves consideration of the resourc…
Sali v SPC Ltd
[1993] HCA 47 Para 3

…in the interests of not only the immediate litigants but also in the interests of other litigants waiting for their matters to be listed for hearing: Sali v SPC Ltd (1993) 116 ALR 625. 20. In that context, courts place “considerable emphasis on the importance of dealing with cases expeditiously”: Aon Risk Services Austr…
Gallo v Dawson
[1990] HCA 30 Para 3

…is not to say, however, that a self-represented litigant is entitled to any “privilege” over and above that of a represented litigant: Gallo v Dawson (1990) 93 ALR 479 per McHugh J. 15. Also of relevance is a useful summary provided in the decision of Edelman J in Hart v Deputy Commissioner of Taxation [2016] FCA 250 (…
[1957] 2 QB 55
[1957] 2 QB 55 Para 3

…ng considered by the court before a decision is made by that court: Allesch v Maunz (2000) 203 CLR 172 at 184 – 85; Jones v National Coal Board [1957] 2 QB 55 at 67, Noelle & Fournier [2009] FamCA 328; Nabers & Nabers [2011] FamCAFC 145. 22. In that context, “proper consideration needs to be given to the particul…

Legislation cited in this decision · 3

Family Law Rules 2004 (Cth)
1.04 3 mentions (from Para 5)
Family Law Act 1975 (Cth)
69ZQ 2 mentions
Federal Court of Australia Act 1976 (Cth)
1 mention (from Para 3)