MARTIN & PAYNE

[2016] FamCA 521

FAMILY COURT OF AUSTRALIA

MARTIN & PAYNE [2016] FamCA 521

FAMILY LAW – Adjournment of trial – unavailability or Family Report writer – shortage of judicial hearing time – adjournment refused.

APPLICANT: Ms Martin

RESPONDENT: Mr Payne

INDEPENDENT CHILDREN’S LAWYER: Ms McGregor

FILE NUMBER: LEC 456 of 2010

DATE DELIVERED: 23 June 2016

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Tree J

HEARING DATE: 21 and 23 June 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms McDiarmid on 21 June 2016

SOLICITORS FOR THE APPLICANT: GT Legal Solicitors

COUNSEL FOR THE RESPONDENT: Mr Priestly

SOLICITORS FOR THE RESPONDENT: Jensen Solicitors & Attorneys

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Mason on 21 June 2016

SOLICITORS FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

IT IS NOTED that publication of this judgment by this Court under the pseudonym Martin& Payne 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 BRISBANE

FILE NUMBER: LEC 456  of 2010

Ms Martin

Applicant

And

Mr Payne

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is an application by the mother to adjourn the hearing of the trial of these proceedings, which was due to commence before me next Thursday, 30 June 2016 with an estimated hearing time of six days.  The application for an adjournment has arisen because the family report writer has unexpectedly become unavailable due to a personal health issue, which appears to be of a nature that, although she anticipates an early return to work, it remains possible that she may never return.

2. In this case a central issue is the mother’s willingness to facilitate a meaningful relationship between the children and the father.  The family report writer’s evidence is not determinative of that issue which is par excellence a question for me.  Therefore, although her report does appear to deal with that issue, it ultimately is a matter where that aspect of the report will not be afforded much weight. 

3. As I have indicated, the matter was listed to commence before me next Thursday for six days, but there is  no other trial which is ready to replace it in the event that it were adjourned.  There is no prospect of a block of six days being again made available to the parties to hear this matter until about March next year, the matter having been now allocated to me and in my docket.

4. It is vital that this Court makes the maximum use of judicial sitting time, given the critical shortage of judicial resources in the Brisbane trial division at the moment.  Indeed I note that was a matter of some concern even to the editor of the Courier Mail, which this morning in its editorial demanded the immediate appointment of two additional trial division judges to Brisbane. 

5. The mother correctly says that, before advancing her case, ideally she would like to know what the family report writer’s opinion is.  However, unfortunately, this is not an ideal world.  Further, I am conscious that it can be very inconvenient both from the Court’s and the parties’ perspective, for a matter to go part-heard as inevitably this matter would need to do if it commenced next week.  But, the reality is I am more likely to be able to find short blocks of time to complete the matter prior to the end of the year, than I would be to find another block of six days.

6. I accept that, if a further family report writer is required to replace the current one, it may be that the matter needs to proceed into next year in any event, but that is a matter upon which I presently can do a little more than conjecture.

7. Weighing the benefits and the prejudices in the balance, I assess that the application for an adjournment should be refused and I will direct that the matter proceed before me.  However, in view of the family report writer’s unavailability, and hence the likely reduced hearing time that will be required next week, I will direct that it commence at 10 am on Friday, 1 July instead of 30 June. 

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 23 June 2016.

Associate:

Date: 23 June 2016