Pearce and Cole (No 5)

[2009] FamCA 1287

FAMILY COURT OF AUSTRALIA

PEARCE & COLE (NO. 5) [2009] FamCA 1287

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournment

Family Law Act 1975 (Cth)

APPLICANT: Mr Pearce

RESPONDENT: Ms Cole

FILE NUMBER: MLC 13158 of 2007

DATE DELIVERED: 7 December 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 7 December 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Tesoriero

SOLICITOR FOR THE APPLICANT: Stella Stuthridge & Associates

THE RESPONDENT: In person

Orders

1. That the application for adjournment is refused.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 13158 of 2007

MR PEARCE

Applicant

And

MS COLE

Respondent

REASONS FOR JUDGMENT

1. This is an application for an adjournment by the respondent to a contravention application.  Ms Cole is unrepresented, and was unrepresented when the orders were made in September 2009 before Dessau J.  I have had the advantage, however, of reading the transcript of 7 September, and it seems to me that her Honour clearly gave the mother an opportunity to raise any of the issues that were of concern such that the orders should not have been made by consent.  I note that the independent children’s lawyer supported the orders.

2. The application for contravention arose because, subsequent to the making of the final orders, no contact has taken place.  It seems that the basis of the application to adjourn these proceedings is now going to be that a stay application will be lodged by Monday of next week.  The difficulty with that is that it is well known that an application for a stay requires the relevant trial judge to look carefully at the nature of the appeal to see whether there is a prospect of success and what the merits are.  The current notice of appeal certainly gives no indication of what the merits might be, and, in addition to that, I note that the orders were made by consent of all parties.

3. Ms Cole has indicated to me that one of the other issues of concern to her, which gave rise to her initially asking for the matter to be adjourned until after the appeal, was that the person who is nominated as the supervisor of the orders is the paternal grandmother, and, according to Ms Cole, the child has told her that the grandmother was not supervising the time.  To some extent, that’s not new because it was set out in her trial affidavit which was filed in March 2009.  On that basis, I see that there is no reason to adjourn the proceedings today.  The application for the adjournment is refused.  

I certify that the preceding three (3) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  30 December 2009