Pullman and Pullman (No 3) - [2012] FamCA 1056

FAMILY COURT OF AUSTRALIA

PULLMAN & PULLMAN (NO. 3)

[2012] FamCA 1056

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournment application – where the mother’s application for a six (6) month adjournment was dismissed – where the adjournment would cause undue delay and be an inefficient use of public resources – Naczek & Dowler [2007] FamCA 830 and Storey & Storey [2000] FamCA 1360 distinguished – where the mother sought an adjournment on the basis that she did not have the mental capacity to participate and that she wished to commence treatment for her Borderline Personality Disorder prior to the hearing – where the expert evidence revealed that any treatment would last for not less than twelve (12) months and there was no guarantee of success – where the Court found the mother likely had capacity to effectively participate in the proceedings

Family Law Act 1975 (Cth)

Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175
Naczek & Dowler [2007] FamCA 830
Storey & Storey [2000] FamCA 1360

APPLICANT:

Mr Pullman

RESPONDENT:

Ms Pullman

INDEPENDENT CHILDREN’S LAWYER:

Coast Law

FILE NUMBER:

NCC

1740

2011

DATE DELIVERED:

8 November 2012

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Austin J

HEARING DATE:

8 November 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr C. Boyd

SOLICITOR FOR THE APPLICANT:

Aubrey Brown Partners

COUNSEL FOR THE RESPONDENT:

Ms D. Bampton

SOLICITOR FOR THE RESPONDENT:

Monardo Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Barry

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Coast Law

Orders

The Application in a Case filed by the mother on 27 October 2012 is dismissed.
Any and all outstanding interlocutory applications are dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Pullman & Pullman 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 NEWCASTLE

FILE NUMBER: NCC 1740 of 2011

Mr Pullman

Applicant

And

Ms Pullman

Respondent

And

Independent Children’s Lawyer

EX-TEMPORE

REASONS FOR JUDGMENT

These proceedings began in June 2011 when the father filed an application for parenting orders following the mother’s decision in May 2011 to sever all contact between the children and the father.
The substantive trial began in June 2012, but could not be completed because of the mother’s acute distress, her asserted inability to continue her participation in the trial, and her successful application for an adjournment of it in a part-heard state. Interim orders were then made reversing the children’s residence. Other procedural orders were made to procure an update family report and also a single expert report from a psychiatrist, addressing the mother’s mental state.
The trial was designated to resume today, Thursday 8 November 2012. The update family report and the single expert’s report were acquired and released to the parties several weeks ago.
On 27 October 2012 the mother filed an Application in a Case seeking that resumption of the trial be deferred for a period of…

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 Pullman and Pullman (No 3)

Details

AGLC: Pullman and Pullman (No 3) [2012] FamCA 1056
Case: [2012] FamCA 1056
Decision Date

CaseChat Overview and Summary

In *Pullman & Pullman (No. 3)*, the Family Court of Australia considered an application by the mother for a six-month adjournment of a part-heard trial concerning parenting orders. The father and the Independent Children’s Lawyer opposed the adjournment. The proceedings had commenced in June 2011, with the substantive trial beginning in June 2012 and being adjourned due to the mother's distress. Interim orders had been made, and the trial was scheduled to resume on 8 November 2012.

The mother sought the adjournment on two primary grounds: firstly, that she lacked the mental capacity to participate in the proceedings and wished to commence treatment for Borderline Personality Disorder; and secondly, that an adjournment would allow for further settlement negotiations. The court was required to determine whether the mother’s application for an adjournment was justified, considering the expert evidence regarding her mental state, the potential duration and success of treatment, and the overarching principles of avoiding undue delay and ensuring the efficient use of public resources, particularly in matters involving children.

The court dismissed the mother's adjournment application. It found that while the mother met the diagnostic criteria for Borderline Personality Disorder, the expert evidence indicated that any effective treatment would last at least 12 months and offered no guarantee of success. The court also noted that the mother had demonstrated sufficient cognitive capacity to understand the proceedings and instruct her lawyers. Distinguishing the present case from *Naczek & Dowler* and *Storey & Storey*, the court emphasised that avoiding undue delay and efficiently using public resources, as highlighted in *Aon Risk Services Australia Limited v Australian National University*, were paramount. The court concluded that the mother's concerns about her capacity to instruct lawyers or her potential for an unfavourable outcome were not persuasive grounds for further delay, especially given the proceedings had already been ongoing for 18 months and involved significant interruptions.

The court ordered that the mother's application for an adjournment be dismissed and that any outstanding interlocutory applications be dismissed. The trial was to resume on the available evidence. The court noted that the mother could make a fresh application for parenting orders in the future should her circumstances change, such as through sustained recovery from any psychological affliction.

Orders