Smythe and Leopold

[2011] FamCA 777

FAMILY COURT OF AUSTRALIA

SMYTHE & LEOPOLD [2011] FamCA 777

FAMILY LAW - PRACTICE AND PROCEDURE – Hearing date vacated – matter adjourned for mention on fixed date

Family Law Act 1975 (Cth)

British American Tobacco Australia Services Limited v Laurie & Ors [2011] HCA 2

APPLICANT: Mr Smythe

RESPONDENT: Ms Leopold

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: LNC 391 of 2008

DATE DELIVERED: 22 September 2011

PLACE DELIVERED: Hobart

PLACE HEARD: Hobart

JUDGMENT OF: Benjamin J

HEARING DATE: 22 September 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Turner

SOLICITOR FOR THE APPLICANT: Levis Stace & Cooper

COUNSEL FOR THE RESPONDENT: Mr M G Kriss

SOLICITOR FOR THE RESPONDENT: Maurice Kriss

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Fitzgerald

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid Commission of Tasmania

Orders

1. The hearing date for the November 2011 sittings be vacated.

2. The hearing case management date on 8 November 2011 be vacated.

3. These proceeding be listed before me for mention at Hobart at 9.30am on
   7 December 2011 and leave be given to all parties and their representatives to appear by telephone by dialling … .

4. Leave be given for the matter to be re-listed before me on the giving of seven (7) days notice to the court and to the other parties.

   IT IS NOTED

5. This may be a matter where a family report or an updated family report may be needed for hearing early in 2012.

6. This is the third adjournment at the request of the mother.

   IT IS DIRECTED

7. A copy of my reasons be placed on the Court file.

8. A copy of these reasons be made available to the representatives for the parties.

   IT IS CERTIFIED

9. 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 Smythe & Leopold has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.

FAMILY COURT OF AUSTRALIA  AT HOBART

FILE NUMBER: LNC 391 of 2008

Mr Smythe

Applicant

And

Ms Leopold

Respondent

REASONS FOR JUDGMENT

1. The matter of Smythe & Leopold, is a Magellan matter which has been listed before the Court for some significant time.  In December of last year, after a report of Mr J, the child was taken into care by the state authorities and then this Court determined that the child ought to live primarily with the father.  The matter was listed for hearing in February 2011.

2. Prior to that hearing, the then counsel for the mother sought an adjournment of the hearing so that the mother could obtain psychiatric evidence to assist her in relation to the proceedings.  On the mother’s application, the five-day hearing was vacated and the matter was listed for hearing before a judge of the Family Court in July 2011.  At that time, the mother was still unable to proceed and as I understand it, Mr Kriss became involved as a pro bono practitioner and was to take instructions from the mother and prepare the matter for hearing in the November 2011 sittings at Launceston.

3. Mr Kriss appeared before me today via telephone and informed me that his client is still having significant health issues such that he is unable to take instructions and has asked that the hearing date be vacated.  This course is not consented to by counsel for the father nor the Independent Children’s Lawyer but they, in many ways, acquiesce to that course, having regard to procedural fairness and that the child is currently with the father.

4. Accordingly, I will stand the matter over for mention before me on 7 December 2011 at 9.30 am in the hope that the mother will be in a position to have her affidavits ready at that time.  In addition, at that time I will consider whether an updated Family Report ought to be put in place for a hearing early the following year.  I raised with counsel whether there was any objection to me further hearing the matter, having regard to the recent decision of the High Court in British American Tobacco Australia Services Limited v Laurie & Ors[1] and my previous involvement in this matter in respect of interim determinations.

   [1] [2011] HCA 2.

5. I understand that the child is not presently seeing the mother and that negotiations are taking place.  I intend to give the parties liberty to apply on seven days notice.  

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 22 September 2011.

Associate:     

Date:              22 September 2011