Ness & Firmin

This case involved a final hearing in a family law matter concerning the custody and living arrangements of three children. The Applicant, Mr Ness, sought orders for the children to live with him exclusively, while the Independent Children's Lawyer proposed that the children live with the Father but with supervised visits with the Mother, contingent on her compliance with certain conditions. The Mother, Ms Firmin, sought alternate weekend time for herself and the children. The case came before Judge O'Shannessy at the Federal Circuit and Family Court of Australia, Division 2, Melbourne Registry. The legal issues to be decided by the court included whether to grant an adjournment of the part-heard final hearing and what orders should be made to manage the proceedings.

Judge O'Shannessy considered the principles of conducting child-related proceedings as outlined in section 69ZN of the Family Law Act 1975 (Cth). These principles include considering the needs of the child, actively directing and controlling the conduct of the proceedings, safeguarding the child from abuse, neglect, and family violence, promoting cooperative and child-focused parenting, and conducting proceedings without undue delay and with as little formality and legal technicality as possible. The judge also took into account the Mother's claims of ill health and the seriousness of the competing allegations in the case. Ultimately, the judge decided to adjourn the matter part-heard for two further days in May 2023, requiring both parties to appear in person and ordering the Mother to provide medical evidence of her circumstances by 4 pm on 14 April 2023. The judge also permitted the Mother to obtain legal advice while under cross-examination, despite the Father's opposition.

The court further ordered that the Mother and Father are directed to attend the Melbourne Registry of the Court for the further hearing of the matter. In the event the Mother fails to appear on the adjourned date, the Father and Independent Children's Lawyer have liberty to apply to proceed on an undefended basis. The subpoenaed material is to be released to all parties until 29 days after the conclusion of the last day of the Final Hearing. The costs of the Father and Independent Children's Lawyer are fixed and reserved.