Morris and Mills
[2016] FCCA 633
•7 March 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MORRIS & MILLS | [2016] FCCA 633 |
| Catchwords: FAMILY LAW – Parenting – application to reinstate proceedings after final undefended hearing –interim orders sought regarding time between the father and the child on a supervised basis – denial of justice to the father without reopening the proceedings – court resources – delay – access to justice denied through significant delay. |
| Legislation: Family Law Act 1975, s.69ZT(1) Federal Circuit Court Rules 2001, r.16.05 Federal Circuit Court of Australia Act (1999), s.8(4) International Convention on the Rights of the Child |
| AMS & AIF (1999) CLR 160 Makita & Sprowles (2001) 52 NSWLR 705 Other Articles Cited: Druitt, Robyn, “Delay - Promoting and protecting clients in these times of increasing delay, but what about the children”, Continuing Education Presentation, 12 March 2016 Chief Justice Martin, “Because Delay is a Kind of Denial”, Monash University Law Chambers Melbourne, Saturday 17 May 2014 |
| Applicant: | MR MORRIS |
| Respondent: | MS MILLS |
| File Number: | AYC 48 of 2011 |
| Judgment of: | Judge Harman |
| Hearing date: | 7 March 2016 |
| Date of Last Submission: | 7 March 2016 |
| Delivered at: | Albury |
| Delivered on: | 7 March 2016 |
REPRESENTATION
| Solicitors for the Applicant: | Ms Cox of Harris Lieberman Solicitors Pty Ltd |
| Solicitors for the Respondent: | Ms Toner of Nevin Lenne & Gross |
| Solicitors for the Independent Children’s Lawyer: | Ms Hill of Tarella Law |
ORDERS
Reinstate to the list of cases awaiting hearing the Application Initiating proceedings filed 15 December 2014 and Response thereto filed 6 March 2015.
The Orders made on a final undefended basis 5 November 2015 shall continue pending further Order.
Consolidate all extant Applications.
List all Applications for hearing estimate 3 days commencing 9 November 2016.
In the event that either/any party (or the Independent Children’s Lawyer) requires the report writer for cross examination then written notice of that fact is to be given to the report writer/the Director of Family Consultancy services within 21 days of today’s date and in the event that the report writer is not available on the allocated dates then upon that fact becoming apparent to a party or the Independent Children’s Lawyer they shall cause the proceedings to be relisted and absent notice within 21 days of today’s date the report will be admitted without challenge.
Direct the Applicant to file and serve all Affidavit material on which he intends to rely at trial no later than close of business on 9 September 2016.
Direct the Respondent to file and serve all Affidavit material on which she intends to rely at trial no later than close of business on 7 October 2016.
Direct the Applicant, should he consider it necessary or appropriate, to file an Affidavit by him and only him answering any material in reply to the Respondent’s Affidavits which has not already been addressed in his evidence in chief no later than close of business on 28 October 2016 and in the event that evidence is to be called in reply it shall be by filing such Affidavit and not otherwise.
The parties are to comply with the payment of any setting down and/or daily hearing fee in accordance with the Federal Circuit Court Regulations 2000 or as otherwise directed by the Registry Manager.
Direct each party and the Independent Children’s Lawyer to file a Case Outline directly by email to my Associate no later than close of business 7 November 2016, such Case Outline to incorporate:
(a)The material that is relied upon by that party or the Independent Children’s Lawyer, being one Affidavit per witness together with any Affidavit in reply;
(b)The material from which tender is to be made in that party or Independent Children’s Lawyer’s case and unless entirely impracticable copies of all documents proposed to be tendered shall be served with the case outline;
(c)A chronology of events.
Leave is granted to the Independent Children’s Lawyer to issue such further subpoena as they may consider relevant appropriate or useful and such leave expressly authorises and allows the issue of more than five subpoenas.
Any further subpoena for the production of documents shall be filed and served and so as to require production of material to the Court not less than 21 days prior to the allocated hearing dates and the party issuing same shall ensure that all necessary steps are taken to have obtained leave to inspect material expeditiously and all parties shall ensure that they have inspected material and tabulated same (in the event that tender or cross examination on those documents is proposed) prior to the hearing (as no time will be made available for inspection of that material prior to the hearing commencing).
Leave is granted to the parties in the event that the matter is resolved and Terms of Settlement prepared and signed to forward those Terms to my chambers for the purpose of orders being made in Chambers and hearing dates vacated.
IT IS NOTED that publication of this judgment under the pseudonym Morris & Mills is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ALBURY |
AYC 48 of 2011
| MR MORRIS |
Applicant
And
| MS MILLS |
Respondent
REASONS FOR JUDGMENT
These proceedings come before the Court today through both a request for relisting made pursuant to rule 16.05 of the Federal Circuit Court Rules 2001 and as a consequence of an Application in a Case having been filed. The Application in a Case would appear to be filed for more abundant caution, as regards the restoration of the proceedings, as well as for the purpose of seeking interim relief.
The Application in a Case seeks not only restoration and reinstatement of the proceedings, (the proceedings having been completed by Orders made on a final, undefended basis 5 November 2015), but certain interim Orders regarding time between the father and the child on a supervised basis.
The father was the Applicant in the substantive proceedings and is the Applicant in the interim proceedings before the Court today. The mother was the Respondent in the substantive proceedings and is the Respondent for the purpose of the interim proceedings before the Court today.
Substantive proceedings
The substantive proceedings were commenced by an Application Initiating Proceedings filed 15 December 2014. A Response thereto was filed on 6 March 2015.
The Initiating Application filed by the father 15 December 2014, a little over 12 months ago, sought that the parents have equal shared parental responsibility for their child X, born (omitted) 2006. The Initiating Application also sought that the child live with her mother and spend time with her father each alternate weekend from Friday to Sunday, for periods during school holidays, and at other times and for other occasions.
The Response filed by Ms Mills proposed that all existing parenting Orders be discharged, that she have sole parental responsibility for X, who would, on her Application, live with her and spend no time with the father.
Past proceedings
This is not the first tranche of proceedings between the parties. Litigation with respect to young X first commenced, it would seem, by the filing of proceedings in the Shepparton Magistrates Court in early 2011. At that time X was five years of age. The proceedings were transferred to the Federal Magistrates Court of Australia, as it then was, and resulted in final Orders being made concluding those proceedings 30 May 2012. Those Orders provided for equal shared parental responsibility, for X to live with the mother and to spend time with the father each third weekend and for other periods.
Following the making of those Orders, it would seem that certain allegations of family violence were made. Those allegations need not be recited in these reasons, both to spare the delicacy of the reader and as the proceedings are not to be determined today. Those allegations would appear to have prompted the mother to withhold the child and, consequent thereupon, the father’s Application, as now framed, was made.
The father’s Application in a Case seeks Orders for time between he and X. The father proposes to begin with supervised time commencing forthwith. It is proposed that this time would occur through the Berry Street Contact Service, which service the Court is advised, is available to assist in a very short space of time, the parties having some little time ago completed all necessary intake and assessment procedures.
The mother’s Response to the Application in a Case seeks its dismissal of all pleas made by the father, including as to reinstatement, together with costs.
The material that is relied upon in the proceedings comprises an Affidavit and Notice of Risk filed by each of the parties. Reliance is also placed upon the Family Report prepared in the proceedings dated 16 October 2015. The Family Report had been released to the parties some short time prior to the last Court event 5 November 2015.
On 5 November 2015 there was no appearance by or on behalf of the Applicant whom, it would appear, was, at that point in time, self-represented. The matter proceeded in the father’s absence and Orders were made in his absence.
The material upon the Court file includes the Order both comprising preparation of the Family Report and adjourning the proceedings to 5 November 2015. Also upon the Court file is correspondence forwarding the Family Report to the parties and the Independent Children’s Lawyer.
By reference to the above documents, and the father’s presence in Court when those Orders were made, I am satisfied, as I was 5 November 2015, that the father was, in all probability, aware of the listing 5 November 2015. The Orders previously made, included an Order requiring that both parties attend in person on 5 November 2015.
The father did not appear and the matter was, accordingly, concluded in his absence and on an undefended basis.
The Orders made 5 November 2015 incorporated Notations and Orders in the following terms:
(7) it is noted that these orders are made in the father’s absence and, accordingly, the provisions of rule 16.05 of the Federal Circuit Court Rules 2001 apply;
(8) in the event that the father should seek to make Application to reopen these proceedings and be heard then he shall no later than close of business 4 December 2015 make such written Application to relist the proceedings...
The Application was made. The proceedings have been relisted. I am satisfied in those circumstances, that the proceedings should be reopened. The father wishes to participate, has re-engaged, and there is clearly a judiciable controversy to be tried between these parties.
The re-opening of the proceedings is a matter of some significance. To allow the Orders 5 November 2015 to stand, without determination of the suit which gave rise to their making, would have the effect of excising the father from the child’s life. Certainly, the mother urges in her case that such Orders are appropriate. On a consideration of the mother’s evidence alone, that outcome was determined to be in the child’s best interests. However, if there is now to be substantial contra-agitation that outcome cannot be allowed to simply come to pass without a determination of the case on its merits. That would represent grave injustice to, at least, the father if not, potentially and subject to the determination of factual issues in dispute between these parties, the child.
In the above circumstances, I am satisfied that the substantive dispute between these parties must be re-opened and listed for hearing “as expeditiously as possible”. Expedition is a difficult concept to define in present circumstances, in light of the Court’s lack of resources.
Young X, the child whose welfare is the subject of these proceedings, is not presently seeing her father and has not for well over a year. The issue to be determined is whether she will. The earliest dates that these proceedings can be adjourned to for hearing are approximately 9 months away. Thus, by the time of hearing and irrespective of the outcome the child will have spent no time with her father for over two years or approximately one fifth of her life. That is in circumstances whereby there is an Order providing for time to occur.
I am grateful to Ms Robyn Druitt of Counsel, practicing at the Parramatta Bar, who has kindly provided to me a draft paper that she is shortly to present titled, “Delay - Promoting and protecting clients in these times of increasing delay, but what about the children”?
Ms Druitt commences by reference to Clause 40 of Magna Carta, some 801 years ago, in which it was agreed between the assembled Lords and Nobles and the King that, “To no man will we sell, to no man deny or delay right or justice”.
That was subsequently interpreted by Edward Coke CJ in the Institutes of the Laws of England, whereby he described delay as “a kind of denial” of justice in the following passage:
Justice must have three qualities, it must be libera, free, for nothing is more odious than justice let to sale; plena, full, for justice ought not to limp or be granted piecemeal; and celeries, speedy, because delay is a kind of denial [emphasis added].
Ms Druitt then goes on to refer to a study of the Sixth Court of Chancery in the 19th Century:
An almost continuous complaint of the delays of Chancery had existed from the reign of Elizabeth... The facts are indisputable, that a common administration suit where the parties were not hostile, took from three to five years; that eminent counsel stated that no man could begin a contested suit and hope to see its end; that clients were advised to compromise good claims, and to yield to bad ones, rather than risk a suit; and that, on the average, causes took at least three years to reach the top of the list after they were ready for hearing. The delays after the cause was ready for hearing, which, as it was said, were the worst delays of all, for the litigants were then making a direct demand for the Court's assistance, were due to the insufficiency of the judicial strength of the Court for its work. To these had to be added the delays due to the cumbersome procedure necessary to get ready for hearing, of which some idea may be gained from what has already been said, and the greater delays, after hearing, in the Master's offices, if, as happened at some stage in almost every case.
The paper incorporates, from more recent times, comment by a most exceptional jurist, Chief Justice Martin of the Supreme Court of Western Australia. Chief Justice Martin, speaking in May 2014 on the topic “The Debilitating Effect of Delay”, opines as follows (and I make clear that I completely endorse and agree with his Honour’s comments):
Delay has the capacity to distort and indeed corrupt the litigation process in a number of ways. I have just mentioned one - namely, by causing a party with a good claim or a good defence to abandon it. Another is through the effect of delay upon the evidence available to establish the facts upon which the claim or defence depends. To the extent that the evidence relies upon oral testimony, the memories of witnesses fade, and witnesses die. Physical exhibits, including documents, can be lost or destroyed or conditions may alter (in the case of a person's health, or at the scene of critical events) such that direct evidence is no longer available. Generally speaking, the adjudication process will be less reliable the longer the period between the occurrence of the events giving rise to the claim and the trial at which the occurrence of those events has to be determined. The exception that proves this rule is the circumstance in which there are developments in technology or forensic science (such as DNA testing) which can enhance the adjudicative process. In some cases, the enhancement of the adjudicative process by such developments has been profound but those cases are not sufficiently frequent to clothe delay in virtue.
Ms Druitt then turns to Spigelman CJ, who comments:
A court is not simply a publicly funded dispute resolution centre. The enforcement of legal rights and obligations, the articulation and development of the law, the resolution of private disputes by a public affirmation of who is right and who is wrong, the denunciation of conduct in both criminal and civil trials, the deterrence of conduct by a public process with public outcomes - these are all public purposes served by the courts, even in the resolution of private disputes. An economist might call them 'externalities'. They constitute, collectively, a core function of government... The judgments of courts are part of a broader public discourse by which a society and polity affirms its core values, applies them and adapts them to changing circumstances.
This Court, as recent media attention would attest, let alone the Court’s own Annual Report and the Docket Reports of individual Judges, is lacking resources.
It is noteworthy that as recently as 9 February 2016 the Chief Executive Officer of this very Court (a CEO shared with the Family Court of Australia) addressed the Senate Estimates Committee as to the difficulties which face this Court. The Court’s Chief Executive Officer concluded with the statement:
When judges have 500 or 600 matters in their dockets that is an intolerable workload.
The Chief Executive Officer could not be more accurate.
The difficulties of the Wollongong Registry have been significantly the focus of media attention of late, no doubt due to strong and active agitation by the local Law Society. What that has revealed, including in media reports this morning, is that my colleague, Judge Altobelli has some 581 pending matters upon his Docket.
My own Docket Report of 31 December 2015 confirmed that, at that date, I had 557 pending matters on my Docket. Since that time I have conducted three duty lists and I have acquired up to 60 new matters per list. It is easy to extrapolate that the number of outstanding matters on my Docket now exceeds 600.
The delays in the Albury Registry and at Parramatta, my home Registry and from which this circuit is managed, are recognised as the significant. In comments made by my Head of Jurisdiction 26 January, 2016 this was acknowledged in the following comment:
Chief Judge Pascoe identified Wollongong, Lismore and Albury in New South Wales, as well as Rockhampton in Queensland as the area’s most in need of resources to protect children.
A full time Judge has recently been appointed to Rockhampton. This is no doubt greatly welcomed by the families of that area who have previously had access to the Court in Rockhampton for only 7 weeks per year and have otherwise had to do the best they can by accessing already overburdened State Magistrates Courts or travelling to major Registries.
This Registry at Albury had filings in 2015 which were 84% of those in Rockhampton. Rockhampton now has a full time Judge whilst Albury has 10 weeks a year circuit. I have always been delighted to undertake this circuit and greatly prefer my time here to my time in Parramatta. I would readily join Judge Demack as a full time regional Judge sitting full time in Albury and surrounding areas.
Wollongong has greater filings than Rockhampton and yet has no full time Judge. Lismore has greater filings than Rockhampton and yet has no full time Judge. Both have a dedicated Registry available as does Albury.
The delays on my Docket are the longest they have ever been. I would volunteer, though that is for others to judge, that it is not through lack of hard work.
Whilst the Court’s protocol provides that sitting hours are from 9:30am until 4:15pm, my staff and I routinely sit past 6:00pm and often with no breaks or, at best, a break of 15 minutes or so. Thankfully, I have two staff so they can each take alternating breaks whilst I sit through lunch. I have taken 17 of my 150 or so Judgment writing days in the past nearly 6 years to be able to hear more cases. I have taken 6 of my 24 weeks leave for the same reason. My Judgments are up to date.
Delay is created and impacted, not only by lack of resources (though that is the primary reason) but also because of the “litigation culture”. At Parramatta, my primary Registry, 38% of cases listed for hearing require judicial determination. To the credit of the Albury profession and, without intending self-congratulation, the “settlement culture” that I sought to develop in this Registry, the number of matters listed for hearing which require judicial determination is a third of that.
Based upon my present Docket report there are delays at Parramatta of up to three years from the date of filing to hearing or determination. Delays in Albury are somewhat less through hard work, the work of the local profession and severe over listing of 600-700%.
The delays demonstrated by present Docket reports is, however, a statistical trick, a sleight of hand. Docket reports which demonstrate “present delays” do no such thing. They show the delay that concluded matters experienced. Those matters have already been heard.
What is hidden by those statistics are the matters presently before the Court awaiting hearing and the delay they will face. It is easy to extrapolate through basic mathematical formula, that the delay those cases presently before the Court face, is approaching four years.
The Court’s Annual Report for 2014/15 reports that:
73 per cent of all final order applications (family law) were completed within 12 months and that 95 per cent of all applications (family law and general federal law) were completed within six months…..71 per cent of matters filed were resolved without the need for judicial determination.
These are, of course, figures across the whole Court. They are statistics that include cases that settle without hearing. As delays increase, I am conscious of that expressed by Chief Justice Martin above, that one consequence of delay is “…causing a party with a good claim or a good defence to abandon it”.
The statistics do not offer much comfort to the litigants who do not resolve their case consensually. They will wait a great deal longer than 12 months. Indeed, the most delayed and disadvantaged cases are parenting cases which will wait nearly 12 months to obtain a Family Report and 3 years or more for a final determination.
During delay, attitudes become fixed and risk escalates. As Judge Gray the Victorian Coroner, observed in the Batty Inquest (paragraph 124) “…delays such as these, particularly when combined with other delays within the system, can lead to an increasing risk of escalating problematic behaviours on the part of the perpetrator”. There is good reason to be fearful around these issues with delays, for example, in utilising a supervised contact service at or about Parramatta being up to 15 months (thankfully such delays are not replicated in Albury).
Put bluntly, delay not only denies access to justice it escalates and, at times, creates danger and risk.
The effect of delay, having accumulated in the caseload of the Parramatta Registry now for two years, is long lasting. Delay is analogous to heat accumulated within a home that has been locked up all day in the heat of summer, doors and windows closed and the sun beating down. It takes a very long time for the heat to dissipate and making life for the occupants very unpleasant. So too delay once accumulated is very hard to reduce.
In February 2014 Parramatta was a Registry of five Judges. It is now a Registry of three Judges. Having operated now for 2 years with a 40% reduction in judicial resources, Parramatta will take many years to overcome the now entrenched delays even if the Registry were restored to its previous levels of Judicial staffing immediately. Certainly, in that time filings have not reduced. They have increased.
The solution to the problem is largely more resources. Yet more resources do not come and are unlikely to be made available any time in the foreseeable future. Some key to that is perhaps demonstrated from the same Senate Estimates Committee transcript for 9 February 2016, wherein the Attorney-General had remarked, “There are 65 positions on the Federal Circuit Court. That is a statutory ceiling”.
Section 8(4)(b) of the Federal Circuit Court of Australia Act (1999) provides as follows:
The Federal Circuit Court of Australia consists of the following:
(a) a Chief Judge; and
(b) such other judges as from time to time hold office in accordance with this Act.
There is no “statutory ceiling” to the number of Judges that can be appointed to this Court. The resourcing of the Court, again as the CEO of the Court has observed, has, since the inception of this Court in 2000, “been inadequate”. That continues such that the position which the Court’s CEO quite appropriately describes as “an intolerable workload” is the workload of each Judge of this Court across both family law and general federal law.
Who pays the price for those difficulties? Again, some clue is given by the Court’s CEO who opines as follows:
The Court is now nearly 16 years of age, and the workload of the Court has been pretty much enormous since day one, and it has grown since then. The pressure on the Magistrates and Judges and the work that they do, in my view—and I have been in the system and have watched it since 2000, when the Federal Circuit Court commenced—has been enormous. I think the illnesses these people suffer is a reflection on some of the commitment they have had to this particular task…Around eight are just not capable of working to the full extent and have serious illnesses. I think it is a reflection on the pressure they put themselves under. When Judges have 500 or 600 matters in their dockets, that is an intolerable workload.
Those difficulties are paid for by individual Judges. They are also, more importantly, paid for by the community. They are paid for by litigants such as Mr Morris who will now be required to wait a further nine months to achieve a resolution of his case assuming that the matter is heard on that occasion.
The case will have some priority. It has been on foot for a period of time, although not as long as some others. This case has been on foot for 15 months. That is but the beginning of the journey in this Registry, where litigants filing fresh Application today can expect that their case will not be heard until 2018, such are the delays masked and concealed by the Annual Report and Docket reports.
This Court is a functioning institution of a first-world society. It functions as well as it can with limited resources. As the CEO of the Court advised the senate’s estimate committee, 9 February 2016, the workload of the Court is increasing and becoming more complex. As the workload increases and becomes more complex the number of Judges has, in real terms, reduced.
Delays must, in every case, be set against the interests of children, the paramount consideration in all parenting proceedings. Delays must also be set against the interests of the parties, such interests being relevant simply subservient to the child’s best interests, see AMS & AIF (1999) CLR 160.
I can well comprehend that Mr Morris would feel aggrieved by further delay in the proceedings and in any determination of even an interim Application. However, in reality, Mr Morris is, by the Orders that I will make today, restored to exactly the position he would have been in but for his laxness in failing to attend on the last occasion. The dates for hearing allocated to the matter have not changed over that period of 3 months.
There are no dates to allocate to hear any case on this circuit. It is simply adding more load to each day, pouring more water into the bucket, as it were, as hearing lists in this Registry continue to be six to seven hundred per cent over-listed.
I am not satisfied that I can or should proceed with the hearing of the interim Application. That is for a variety of reasons which I will touch upon briefly. Firstly, the Application, whilst it is appropriately brought and prosecuted, touches upon areas of great contention. There is real issue in these proceedings as to the extent to which young X has been impacted by past events and would be impacted by a resumption of time between herself and her father. That is not to suggest for one moment that I have formed any view that it is either positive or negative. Simply, that the evidence is controversial.
Secondly, whilst the Family Report offers some support to an immediate move to supervised time, it is clear that there has been no time occurring for some little while. More importantly, however, the Family Report is subject to common law considerations such as the decisions of the New South Wales Supreme Court in Makita & Sprowles (2001) 52 NSWLR 705 and the High Court of Australia in Dasreef Pty Ltd v Hawchar (2011) 277 ALR 611. The Family Report is not prepared by simply plucking a recommendation from thin air. Recommendations must be based upon an acceptance of certain matters as possible or probable, and the Report, whilst it discusses different factual findings that might be made, proceeds on the assumption and thus recommends that the commencement of supervised time would not be injurious to the child and would provide her with some real potential benefit. Both parties and the Independent Children’s Lawyer are entitled to test that evidence.
I do note that X:
a)Has been attending counselling for some little time;
b)Is suggested to have improved significantly during the period of absence of communication between herself and the father and having expressed to the lawyer representing her interests in these proceedings that this agency, by and of itself, has given her some therapeutic assistance;
c)Has suggested (as has Ms Mills – see, for examples, paragraphs 33, 35 and 37 of the Family Report), that she experiences significant anxiety on an ongoing basis as a consequence of that which has occurred in her life to date;
d)Is reported by Ms D, the Family Report Writer, to have expressed a clear wish or view that she does not wish to spend time with her father at this point because she feels frightened. That is something which must be tested at Trial.
The child’s views are admitted as an exception to the prohibition on hearsay (which provisions do not otherwise apply in these proceedings by reference to section 69ZT(1) of the Family Law Act 1975, but which remain important). The Court is required by the objects and principles of the Act incorporating, as they do, the entirety of the International Convention on the Rights of the Child, to “hear the child’s voice” in proceedings. It is pointless, if not mischievous and meddling, to seek to ascertain the child’s views through commissioning a Family Report and appointing an Independent Children’s Lawyer, to then, ignore the child’s suggested views at the first opportunity and on the basis of proceeding on evidence which is entirely untested. A Family Report is evidence in the proceedings not special evidence or tantamount to a Judgment of the Court.
Next, the issues that are to be determined in the proceedings, on both an interim and final basis are, essentially, the same. Is communication between the child, let alone face to face contact on a supervised basis or otherwise, safe? Again, no finding is made in that regard. It is simply acknowledged that each of the parties agitate a different position. Those positions cannot be reconciled, nor on the evidence that is presently available can they be appropriately or safely determined. The best interests of children deserve better than delay. They also deserve better than for decisions to be made ad hoc based on limited and untested evidence, especially when that which is at stake is a child’s emotional health.
Finally, the Application in a Case is somewhat opportunistic. The Application is made after the final conclusion of the proceedings in the father’s absence and, whilst seeking to re-open, the Application is filed. I am not satisfied that it is appropriate, especially as the same issues are involved at interim and final hearing, to hear the Application other than on a final basis.
For those reasons, I am not satisfied that the interim proceedings can be safely determined today even if there was time to do so which, in all probability, there will not be. That there would not be time to hear and determine an Application is, in itself, regrettable. Litigants who come before the Court are entitled to have a reasonable expectation that their plea for relief will be heard. However, this Application will be heard at the first available opportunity.
If the interim proceedings were adjourned, it would be to a date on or about 29 September. That is the next date available even to hear the most urgent of Applications. It could be listed earlier, but it would displace equally urgent Applications which have already been in the queue and waiting some months for their day in Court.
The matter can be heard and determined only some weeks later and on a final basis. I am satisfied that this is the preferable and appropriate course to take.
Accordingly, I make Orders as follows (see Orders).
I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Judge Harman
Date: 24 March 2016
Key Legal Topics
Areas of Law
-
Family Law
-
Civil Procedure
Legal Concepts
-
Appeal
-
Costs
-
Discovery
-
Jurisdiction
-
Procedural Fairness
-
Remedies
0
2
6