Noelle and Fournier (No 2)

[2010] FamCA 540

FAMILY COURT OF AUSTRALIA

NOELLE & FOURNIER (NO. 2) [2010] FamCA 540

FAMILY LAW – CHILDREN – PROCEDURAL – final orders application dismissed on 30 April 2010 – both parties’ interim applications pending – parties given leave to file fresh initiating applications during period of adjournment to keep interim application on foot – neither party filed fresh initiating applications – all applications dismissed

Family Law Act 1975 (Cth)

APPLICANT: Ms Noelle

RESPONDENT: Mr Fournier

INDEPENDENT CHILDREN’S LAWYER: Rebecca Reed

FILE NUMBER: MLC 11383 of 2007

DATE DELIVERED: 23 June 2010

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 23 June 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Lineton

SOLICITOR FOR THE APPLICANT: Ruth Carter & Associates

COUNSEL FOR THE RESPONDENT: In Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Du Barry

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission
of South Australia

Orders

1. That the Amended Initiating Application filed by the wife on 14 March 2008 in so far as it seeks interim orders be dismissed and removed from the active pending cases list.

2. That the Amended Application in a Case filed by the husband on 27 February 2009 be dismissed and removed from the active pending cases list.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: MLC 11383 of 2007

MS NOELLE

Applicant

And

MR FOURNIER

Respondent

EX TEMPORE REASONS

1. This is a matter wherein I delivered reasons for judgment on 30 April 2010. The order I made at that time was that I dismissed the Final Orders Application filed by the wife and the Response to that filed by the husband. As I pointed out though in my reasons for judgment that still theoretically left before the Court an Application for Interim Orders by the wife contained in her Application filed on 14 March 2008 and an Amended Application in a Case filed by the husband on 27 February 2009. However, neither of those applications could remain in this Court and he heard and determined because there was no longer a Final Orders Application by either party to which those Interim Applications could attach.

2. To overcome this problem I indicated when I delivered judgment and at subsequent hearings that I was prepared to allow the parties some leeway to see if they could agree ongoing orders or alternatively if not, then allow time for at least the mother to file the appropriate Initiating Application seeking Final Orders and either attaching in a sense to that application the outstanding Interim Application or to proceed with a new Interim Application.

3. The position has now been reached after adjourning the matter on 26 May 2010 that the matter needs to be concluded. Today I am told by the mother’s solicitor that he has not been able to advance his client’s position since 26 May 2010, namely he still has prepared an Initiating Application seeking Final Orders and Interim Orders, however he has not been able to obtain from his client an affidavit in support of the Interim Orders Application.

4. His client was on a telephone link today but unfortunately I had to terminate that telephone link because she was speaking out of turn and it has been impossible to conduct the hearing in a rational way. I can say that I terminated the telephone call at the point that I had started to deliver these reasons for judgment and in my view that does not prejudice the mother given that she was able to hear the submissions that were made to me and obviously in due course she, through her solicitor, will be advised of the details of these reasons and the orders that I make, but also these ex parte reasons will be transcribed and made available in due course as well.

5. The position is that the matter has not settled and there is no Final Orders Application before me by the mother or indeed the father. Thus, all I can do is finalise these proceedings by dismissing the Interim Applications that I have referred to. That of course does not prevent the mother from filing a further Initiating Application in which she seeks Final Orders and if so advised Interim Orders. Equally if the father has any concerns about the ongoing orders then he is at liberty to always file an Initiating Application himself but he has indicated he does not propose to do that. Thus, it is now back to the mother and her solicitor to sort out whether there will be such proceedings instituted.

6. Mr Lineton says that his instructions would be sufficient to file an Initiating Application containing just an Application for Final Orders and that may be what happens next in this case but I will leave that obviously to Mr Lineton. That can be done of course because if there is no Interim Applications there is no need for an affidavit to be filed.

7. Ms Du Barry for the Independent Children’s Lawyer has whole heartedly supported what I propose to do. She confirmed my position which is that the mother has had ample opportunity since 30 April 2010 to progress this matter in an appropriate way. Of course as Ms Du Barry says to me and Mr Lineton confirms, the parties have been able to reach agreement outside of this Court and obviously I encourage that but there is nothing more I can do in these proceedings.

I certify that the preceding 7 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 23 June 2010.

Associate