Moulden and Tan

[2010] FamCA 924

FAMILY COURT OF AUSTRALIA

MOULDEN & TAN [2010] FamCA 924

FAMILY LAW – PRACTICE AND PROCEDURE – application by the mother seeking an adjournment to enable her to obtain legal representation – consideration of factors provided in Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 – not satisfied that the mother has established grounds for which the matter should be adjourned – application dismissed

Family Law Act 1975 (Cth)

Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175

APPLICANT: Mr Moulden

RESPONDENT: Ms Tan

FILE NUMBER: DNC 652 of 2007

DATE DELIVERED: 5 October 2010

PLACE DELIVERED: Darwin

PLACE HEARD: Darwin

JUDGMENT OF: Dawe J

HEARING DATE: 5 October 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Morgan

SOLICITOR FOR THE APPLICANT: Maleys Barristers & Solicitors

COUNSEL FOR THE RESPONDENT: N/A

THE RESPONDENT: In person

Orders

1. The mother’s application for an adjournment of the contravention proceedings is refused.

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

FAMILY COURT OF AUSTRALIA AT DARWIN

FILE NUMBER:    DNC 652 of 2007

MR MOULDEN

Applicant

And

MS TAN

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This is an application by the mother for an adjournment of the contravention proceedings to enable her to be legally represented.  The proceedings in relation to the contravention were instituted by the father in May of this year and served on the mother in June of this year.  At that time she was unrepresented.  The matter has been before me, and on other occasions Justice Burr, from time to time since then.  It was only yesterday when the matter commenced before me for final hearing that the issue of the mother obtaining legal advice or being represented was raised, after inquiries from the bench.  I note that this matter concerns allegations that the mother has contravened the orders which provide the father with supervised time with the children.

2. The significance is that this Contravention Application needs to be determined by me so that the final hearing in relation to the children’s issues generally can remain listed, as it currently is, before Justice Burr for early February of next year. 

3. It is also significant in this matter that the orders of 28 June 2010 noted that the mother was to seek legal advice as a matter of urgency.  On that occasion when the mother appeared in person, the Contravention Application filed by the father on 27 May 2010 (namely the application which is before me today) was listed for trial, allowing two days.  Subsequently, further orders have been made.  It has been known to the mother since that time that the contravention proceedings were to be determined by me in order to arrange for the final hearing of the children’s matters to be dealt with by Justice Burr.

4. In particular on 8 September 2010 Justice Burr specifically ordered that the father’s Contravention Application be listed before me at 10.00 am on Monday, 4 October, during the Darwin judicial sittings of this Court.  That order of 8 September 2010 was sealed and forwarded to the mother at her address for service. 

5. On 22 September 2010 Justice Burr also heard the matter.  On that occasion the mother again appeared in person.  Again, the orders were clearly made in the presence of the mother that the Contravention Application was to start before me at 2.15 yesterday, Monday, 4 October.  The mother was ordered to file and serve an affidavit responding to the allegations contained in the father’s affidavit in support of his Contravention Application.  It is clear, therefore, that since the mother was served with the Contravention Application in June, she has been well aware of the nature of the proceedings, the allegations of the father, and the fact that they were to commence before me yesterday.

6. This morning she puts before the Court a request for an adjournment on the basis that she would be unable to deal with the matter unless she were represented.  When asked to give the Court an explanation as to why she did not obtain that legal representation and legal advice prior to the trial commencing yesterday afternoon, she was unable to give any explanation. 

7. The adjournment of the Contravention Application is opposed by counsel for the father who refers the Court to the history of the contravention proceedings, and the mother’s awareness of the contravention proceedings. 

8. When dealing with procedural matters, it is not the case necessarily that the best interests of the children are a paramount consideration.  However, the authorities indicate that the interests of the children are a factor which is to be taken into account by this Court.  I also take into account the High Court decision of Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 in relation to adjournment of proceedings, and the factors which guide the Court.

9. Taking into account those factors, and in particular the interests of the children in having the proceedings concerning them determined in a timely manner, I am not satisfied that the mother has made out a case which establishes the necessary factors for the Court to adjourn this matter.  The mother has indicated that there is a possibility that her lawyers, whom she has consulted, may be available at some other time, but not on short notice of 24 hours.  Notwithstanding that, the Court has listed the matter for hearing I am proposing to continue with the hearing of the matter today and tomorrow.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe.

Associate: 

Date:  14 October 2010