Naczek & Dowler - [2011] FamCA 179

FAMILY COURT OF AUSTRALIA

GOLDY & GOLDY

[2011] FamCA 179

FAMILY LAW - PRACTICE AND PROCEDURE – adjournment – where the mother’s solicitors forwarded material related to prior proceedings to the father’s solicitors without instruction – balancing of the best interests of the children and the need to do justice to each of the parties – orders that the matter be adjourned to allow the mother to seek legal advice

Family Law Act 1975 (Cth)

APPLICANT:

Mr Goldy

RESPONDENT:

Ms Goldy

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

ADC

4823

2008

DATE DELIVERED:

10 March 2011

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Dawe J

HEARING DATE:

10 March 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Hurley

SOLICITOR FOR THE APPLICANT:

Sykes Bidstrup

COUNSEL FOR THE RESPONDENT:

Ms Gray

SOLICITOR FOR THE RESPONDENT:

Paul G Doube

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Fuda Duncliffe

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Services Commission

Orders

That the final hearing of the trial be adjourned to commence on 27 June 2011 and concluding on 8 July 2011 (10 days) before the Honourable Justice Dawe.
That the matter be adjourned for further consideration to Thursday 17 March 2011 at 9.15am for mention before the Honourable Justice Dawe.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 4823 of 2008

Mr Goldy

Applicant

And

Ms Goldy

Respondent

REASONS FOR JUDGMENT

This is a matter which has been in the Magellan list for a considerable period of time. It is a matter which concerns the welfare of three children.
The Court has made orders by way of directions with a view to preparing the matter for final hearing. The matter has been listed to commence for six days before me this morning. The orders in relation to the preparation of the matter for trial have not been complied with on time; however, material is now before the Court which may have enabled the Court to proceed to hear the matter to a conclusion this week and next week.
However, at the commencement of the trial this morning counsel for the mother informed the Court and counsel for the father and the Independent Children's Lawyer that the mother was seeking an adjournment of the trial in order to obtain independent legal advice in relation to the ongoing representation by her present solicitor and, as a result, no doubt, instructed counsel. That was based upon the information available to the mother this morning that earlier this week the mother’s solicitors forwarded to the father’s solicitors, without her instructions, material in relation to a motor vehicle accident claim proceedings including experts’ reports.
The mother now seeks an adjournment of the trial in order to consider her ongoing legal representation. This is an unusual matter both in relation to the issues to be determined and in relation to the request for…

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 Naczek & Dowler

Details

AGLC: Naczek & Dowler [2011] FamCA 179
Case: [2011] FamCA 179
Decision Date: 10 March 2011

CaseChat Overview and Summary

In the matter of *Naczek & Dowler*, Dawe J of the Supreme Court of Victoria was required to determine applications for an adjournment of a trial. The parties sought to reschedule the final hearing of their proceedings.

The central legal issue before the Court was whether to grant an adjournment of the trial to a later date. This involved considering the principles governing the grant of adjournments in civil litigation, including the need to balance the parties' interests with the efficient administration of justice.

Dawe J ordered that the final hearing of the trial be adjourned to commence on 27 June 2011 and conclude on 8 July 2011, allocating 10 days for the hearing. The matter was further adjourned for consideration to 17 March 2011 at 9.15 am for mention before the Honourable Justice Dawe.

Orders

Orders of the court

That the final hearing of the trial be adjourned to commence on 27 June 2011 and concluding on 8 July 2011 (10 days) before the Honourable Justice Dawe.

That the matter be adjourned for further consideration to Thursday 17 March 2011 at 9.15am for mention before the Honourable Justice Dawe.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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