Olmos and Morrall

[2016] FamCA 372

FAMILY COURT OF AUSTRALIA

OLMOS & MORRALL [2016] FamCA 372

FAMILY LAW – PRACTICE AND PROCEDURE – Application for adjournment of a part heard hearing – Where counsel for the father is unavailable and need to brief other counsel – Where application opposed by mother – Where grounds for adjournment do not outweigh prejudice to the mother – Application dismissed

Family Law Act 1975 (Cth)

APPLICANT: Ms Olmos

RESPONDENT: Mr Morrall

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: BRC 11732 of 2012

DATE DELIVERED: 4 May 2016

PLACE DELIVERED: Hobart

PLACE HEARD: Hobart

JUDGMENT OF: Benjamin J

HEARING DATE: 4 May 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Coles

SOLICITOR FOR THE APPLICANT: Watts McCray

COUNSEL FOR THE RESPONDENT: Ms Behrens

SOLICITOR FOR THE RESPONDENT: Dobinson Davey Clifford Simpson

Orders

1. Leave be given to the respondent father to make an oral application for vacation of the hearing dates in May 2016 and allocation of further hearing dates.

2. The oral application of the father made today, 4 May 2016, is dismissed.

3. The Court confirms the hearing dates for five (5) days commencing Monday 23 May, Tuesday 24 May, Wednesday 25 May, Thursday 26 May and Friday 27 May 2016 and for two (2) days commencing 10.00am on Thursday 28 July and Friday 29 July 2016 at Canberra.

4. No order for costs be made for either party in relation to today’s application.

IT IS DIRECTED

1. A copy of the reasons for these orders be taken out and placed on the Court file.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Olmos & Morrall has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: BRC 11732 of 2012

Ms Olmos

Applicant

And

Mr Morrall

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. In the matter of Morrall & Olmos there is an oral application before me for vacation of the part heard five day hearing from 23 May 2016 to five days sometime in June, July or August 2016. 

2. It is of value to set out the background of this matter just to consider the context of the application.  These proceedings arise out of an application by the mother to relocate herself and thus to relocate the child to Europe.  The evidence of the mother, albeit untested, is that she is living in very dire financial circumstances in Canberra and that she is barely able to make ends meet from day to day.

3. Secondly, she asserts that she has a significant mental health issues which in part arises out of the circumstances in which she finds herself.  She has made it clear to the Court that she intends to return to Europe irrespective of the outcome of these proceedings.  The child has been in the mother’s primary care for the whole of her life, and I note there is an issue as to the extent of the care of the father although it is significant his evidence is that it is greater than that in any event.

4. This matter came before me on 15 December 2015 and I listed it for hearing at a date and a time which both parties believed suited their counsel namely, those days in May 2016, a delay of some six months.  Since that time it became apparent that the Family Consultant would not be available for cross-examination in May.  Initially the Court endeavoured to deal with the matter by commencing the hearing in late April and cross-examining the Family Consultant.  That in fact occurred, however, it became clear that her evidence would need to be given at a later time and dates were then allocated at the end of July 2016 to meet the convenience of counsel for both parties to complete that cross-examination and to make submissions leaving in place the dates of the five days commencing 23 May 2016.

5. The matter is part-heard.  I accept from Ms Behrens that there are very good, extraordinary reasons counsel for the respondent father is not available at that time and they will need to brief other counsel for this hearing.  It is the father’s preference to brief Mr Batey of counsel, who is available for most of June, all of July and almost all of August.  The mother’s case is that her financial circumstances are, as I indicated earlier, dire and that she has mental health issues and further that her mother has come out to Australia for an extended period of time including giving evidence in this hearing.

6. To add to the difficulties, I can indicate to counsel that I am on leave in June and I have commitments for hearings in July and August.  Therefore, from my perspective, and I note that I am part heard, the matter would not be heard until late October, November or December 2016 at the earliest.  I am, in all of the circumstances, reluctant to adjourn the hearing, particularly given albeit the untested circumstances of the mother.  This would delay the matter by another six months or more given that it will be necessary to write the reasons in respect of this application whichever way the outcomes arises.

7. There is time between now and the recommencement of the hearing to brief competent counsel other than Mr Batey and that is the course I will adopt.  There is an application before me that costs be reserved.  Given the extraordinary circumstances and the change of case on the last occasion I do not reserve costs and I specifically make no order for costs for either party in relation to today’s application.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 4 May 2016.

Associate:     

Date:              4 May 2016