Noelle & Fournier
[2009] FamCA 328
•21 April 2009
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 |
| APPLICANT: | Ms Noelle |
| RESPONDENT: | Mr Fournier |
| INDEPENDENT CHILDREN’S LAWYER: | Mrs Reed |
| FILE NUMBER: | MLC | 11383 | of | 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 to be allowed to proceed to trial.
He then specifically ordered that the proceedings be referred to a short trial list for determination of the Rice & Asplund argument and further ordered:
“That on or before 4.00 pm on Friday, 30 January 2009, the mother do file and serve an affidavit detailing the alleged change in circumstances which would warrant the Court proceeding to a further final hearing on issues impacting upon the said children with specific reference to the formal argument now raised before the Court by the father on the Rice & Asplund test.”
The matter has been back before the Court thereafter on other issues. The parties were on notice that there was a short trial to be listed before the Court today, 21 April at 10.00 am, on the Rice & Asplund issue. The matter was referred back to his Honour Justice Burr on 15 April 2009, when his Honour specifically ordered:
“That on or before 4.00 pm on Friday 17 April, the mother do file and serve an outline of case document, indicating:
(a)the final order sought by her;
(b) in a brief precis, the reasons and factual basis upon which those orders were sought;
(c)the alleged change in circumstances which would justify the further determination of the children's issues on a final basis, by the Court; and
(d)the affidavit or other documents upon which she intends to rely in advancing her argument before the Court.”
At the time that order was made, the father appeared in person, the mother was represented by Mr Lineton and Mr Boehm appeared on behalf of the Independent Children’s Lawyer. Those orders specifically provided for the outline of case document to be filed and served by 4 o'clock on Friday, 17 April, thus giving the father the weekend and Monday to consider that material. The father did not receive the 10-page document until the matter was listed for callover before me at 10 o'clock this morning.
The mother's counsel correctly submits that the material upon which the mother seeks to rely is material which has been available to the father, being the mother's affidavits already filed, his affidavits already filed, an affidavit of Dr W filed on 4 March 2009 and transcript of evidence given by the family consultant, Ms B, 17 October 2007.
I accept that the documents to which the mother refers are not new documents, but the fact that they are to be relied upon would have come first to the notice of the father this morning. The documents themselves would have indicated that they were the sort of document the mother was intending to rely upon in these proceedings.
The change in circumstances alleged by the mother begins at the top of page 2 and continues through to almost the bottom of page 5, specifically seven paragraphs, each with subparagraphs and further sub-subparagraphs.
The final orders sought are also of particular detail, setting out in some length the proposals the mother puts for the children to spend time with the father, if she were successful in obtaining an order that the children live with the mother.
The Independent Children’s Lawyer has expressed disquiet as to the unsatisfactory timing of the receipt of the document but neither opposes nor promotes the adjournment sought by the father.
This is a matter which involves the interests of the children, and in a general sense it serves the interests of the children to have litigation concerning them concluded promptly.
The Rules of the Court specifically provide that the matter should be resolved in a just and timely manner and that the Court can extend times made in orders. The Court is obviously given power to adjourn the proceedings as a general discretion.
It is therefore necessary to consider, when exercising the power to adjourn the matter, how it is best to do justice to all of the parties. The Court needs to take into account whether a refusal of an adjournment would seriously prejudice a party and if the adjournment itself would seriously prejudice the party who is opposing the adjournment.
The case management procedures and case management orders are not to be treated as an end in itself, but in accordance with the case of State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 it is necessary to ensure that justice is done to both of the parties.
The husband, although he has legal qualifications obtained outside of Australia is not yet qualified to practise in Australia. He is not in the same position as an unrepresented litigant with no background or qualifications, but he is nonetheless a litigant in person who needs to give consideration to the material referred to in the case outline. If he were represented, it would be likely that anyone representing him would seek an adjournment to consider the matters raised in the 10-page case outline document received this morning.
I am assisted by a recent decision of His Honour Justice Cronin in a judgment of Anton & Malitsa (No 2) [2009] FamCA 242.
His Honour Justice Cronin there considered the authorities in relation to adjournments in a case where the facts are not at all similar to this one but where he referred to the fact that there can be no rigid rule to be applied in an adjournment application and the discretion has to be exercised judicially. He referred to the High Court authority of Sali v SPC Ltdand Anor (1993) 116 ALR 625, in which it is said that it is necessary to consider the interests of justice carefully when considering an adjournment application. He referred to the decision I have already mentioned of State of Queensland v JL Holdings Pty Ltd (supra) which referred to the Saliv SPC Ltd and Anor (supra) case.
Justice Kirby in that decision said, when referring to Saliv SPC Ltd and Anor (supra) that it was necessary to consider the effect of an adjournment on the Court resources and competing claims of the litigants and the other litigants.
In this case I consider the significant factor is the injustice to be done to the husband in receiving, at such short notice, the list of principles upon which the mother was seeking to rely and the long list of examples given for the change in circumstances and affidavit material upon which the mother relies.
I have balanced against the need to do justice to the father the question of the need to do justice to the mother, who had an expectation that this issue, which has been outstanding for some months, would be determined today. Nonetheless, it is because she has failed to comply with the orders of the Court within the time allocated that the adjournment is necessary.
I therefore grant the father's adjournment of the consideration of the Rice & Asplund argument. I am told by my Associate that the date would be available for the matter to be determined in the short trial list of 25 May 2009.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe
Associate:
Date: 4 May 2009
Key Legal Topics
Areas of Law
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Civil Procedure
Legal Concepts
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Appeal
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Costs
4
3
5