Noelle & Fournier - [2009] FamCA 328

FAMILY COURT OF AUSTRALIA

NOELLE & FOURNIER

[2009] FamCA 328

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournment – matter listed for short trial on Rice and Asplund issue – where the father only received the mother’s case outline on the morning of the hearing – whether the grant or refusal to grant an adjournment would prejudice either party – where the father is self represented but has legal knowledge – adjournment granted

Family Law Rules 2004 (Cth)

Rice & Asplund (1979) FLC 90-725
State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146
Anton & Malitsa (No 2) [2009] FamCA 242
Sali v SPC Ltd and Anor (1993) 116 ALR 625

APPLICANT:

Ms Noelle

RESPONDENT:

Mr Fournier

INDEPENDENT CHILDREN’S LAWYER:

Mrs Reed

FILE NUMBER:

MLC

11383

2007

DATE DELIVERED:

21 April 2009

PLACE DELIVERED:

Adelaide

JUDGMENT OF:

Dawe J

HEARING DATE:

21 April 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Cocks

SOLICITOR FOR THE APPLICANT:

Philip Lineton

COUNSEL FOR THE RESPONDENT:

In person

SOLICITOR FOR THE RESPONDENT:

N/A

INDEPENDENT CHILDREN’S LAWYER

COUNSEL:

Mr M.A. Boehm

INDEPENDENT CHILDREN’S LAWYER

SOLICITOR:

Legal Services Commission

Orders

Further consideration of the Rice and Asplund argument is adjourned to the Short Trial list of the 25 May 2009 at 10.00 am before the Honourable Justice Strickland.

IT IS NOTED that publication of this judgment under the pseudonym Noelle & Fournier 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 2000

MS NOELLE

Applicant

And

MR FOURNIER

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

This is an application by the father, seeking an adjournment of the proceedings which are listed before me for determination today. Specifically, an adjournment in relation to the consideration of the Rice & Asplund arguments relating to the fresh application of the mother seeking parenting orders in relation to the two children of the parties.
The application seeking the adjournment is based upon the fact that the father only received this morning, shortly before the case came before me this morning, the case outline of the mother, which is over nine pages long, setting out the orders which she is seeking and the basis upon which she seeks those orders.
To see the application in the appropriate context it is necessary to indicate that the previous proceedings between the parties, which were in place for some time, were finalised by orders of Justice Bennett on 23 August 2007. There were then further orders made in October 2007 and December 2008 in relation to children's issues.
Significantly, in October 2008 namely, on 15 October 2008 his Honour Justice Burr had the matter before him, when he noted that the final orders in relation to the children were made by Justice Bennett on 23 August 2007 at the conclusion of defended trial proceedings and that the father wished the Court first to determine, on a Rice & Asplund basis, whether or not the mother's fresh application ought…

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 Noelle & Fournier

Details

AGLC: Noelle & Fournier [2009] FamCA 328
Case: [2009] FamCA 328
Decision Date: 21 April 2009

CaseChat Overview and Summary

In *Noelle & Fournier*, Dawe J of the Supreme Court of Victoria considered a dispute concerning the division of property between the parties. The specific nature of the dispute, beyond it being a property division matter, is not detailed in the provided text.

The primary legal issue before the court was the application of the principles established in *Rice v Rice* and *Asplund v Asplund* to the present case. This involved determining how certain assets or contributions should be treated in the context of property settlement.

Dawe J determined that further consideration of the *Rice* and *Asplund* arguments was necessary. Consequently, the court adjourned this aspect of the proceedings to a later date for further argument before another judge. The court made no final orders regarding the property division itself at this stage.

Orders

Orders of the court

Further consideration of the Rice and Asplund argument is adjourned to the Short Trial list of the 25 May 2009 at 10.00 am before the Honourable Justice Strickland.

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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