Vale and Vale (No 5)

[2016] FamCA 989

FAMILY COURT OF AUSTRALIA

VALE & VALE (NO 5) [2016] FamCA 989

FAMILY LAW _ PRACTICE AND PROCEDURE – application for adjournment of proceedings on the first morning of trial – application refused.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

APPLICANT: Mr Vale

RESPONDENT: Ms Vale

INTERVENOR: Secretary, New South Wales Department of Family and Community Services

INDEPENDENT CHILDREN’S LAWYER: C M Bint Family Lawyers

FILE NUMBER: SYC 7455 of 2012

DATE DELIVERED: 14 November 2016

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 14 November 2016

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Ulbrick, G & D Lawyers

RESPONDENT: In person via video link from the Newcastle Registry of the Family Court

COUNSEL FOR THE INTERVENOR: Mr Moore

SOLICITOR FOR THE INTERVENOR: New South Wales Crown Solicitor’s Office

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Andrew

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: C M Bint Family Lawyers

Orders

IT IS ORDERED THAT

1. The application made by the Respondent today seeking an adjournment of the trial is dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Vale & Vale (No 5) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: SYC 7455 of 2012

Mr Vale

Applicant

And

Ms Vale

Respondent

And

New South Wales Department of Family and Community Services

Intervenor

And

Independent Children’s Lawyer

EX TEMPORE

REASONS FOR JUDGMENT

1. I have before me two applications, in essence those which are contained within two Applications in a Case filed by Ms Vale on 26 October 2016.  Each of those applications are supported by affidavits also filed by Ms Vale on 26 October 2016.  In addition to those documents, Ms Vale asked that I read, as she relied upon it, the Notice of Appeal filed by her on 2 September 2016 and given Appeal Number NA63 of 2016. 

2. The thrust of Ms Vale’s application for an adjournment may be found by reference to the Applications in a Case, supporting affidavits and the Notice of Appeal to which I have referred.

3. In case it was significantly pressed that Ms Vale’s application for an adjournment of the trial as outlined within the Applications in a Case filed on 26 October 2016 had already been heard and determined by me on 2 November 2016, I have proceeded to hear Ms Vale’s application for an adjournment as constituted also by an oral application made by her this morning. 

4. It is a matter of Court record and a matter clearly captured within the exchange which occurred on 2 November 2016 that Ms Vale raised concerns at that time in relation to the continuation of the proceeding to trial before me commencing this morning.

5. Reference to the transcript of those proceedings will further establish that some of the matters to which Ms Vale has referred orally this morning were ventilated by her on 2 November 2016. 

6. As I expressed during that hearing on a number of occasions, and as I express now, my focus is upon affording to the parties the opportunity properly to be heard in a forum within which findings of fact in relation to disputed matters of fact can be made.  It is only within a trial forum that all parties will properly be afforded the opportunity to present their evidence, to engage in cross-examination, to challenge the evidence relied upon by other parties and to seek, via submission, that findings are made in accordance with each party’s particular case. 

7. That is, I think, a broad overview of the reasons I expressed on 2 November 2016 in then informing the parties of my intention to continue to hear the matter commencing today. 

8. Given that I have approached Ms Vale’s application for an adjournment, in a sense, as though it were a truncated process commenced on 2 November and continued this morning and/or to the extent that it is a fresh oral application, I incorporate within these reasons for refusing the application to adjourn the trial those reasons given by me on 2 November.

9. There is nothing, in my view, in the material relied upon today to change the situation vis-à-vis its position as at 2 November 2016. 

10. I reject the contention raised by Ms Vale to the effect that it is only through an appeal against a decision made during the review process that she will be able, properly, to be heard.  I reiterate and repeat my view that it is only through the opportunity to engage in a trial process - to be heard, to present evidence, to cross-examine and to challenge the evidence relied upon by others for findings that others seek - that the process can properly take place. 

11. As I said on 2 November it is, in my view, imperative for the children that the proceedings between their parents continue towards finalisation.  That imperative is, in my view, heightened when reference is had to the contents of the material in relation to the child’s current care arrangements and the transient nature of those.

12. In addition I note, and have regard to the fact that, in July of this year - when I set this matter for trial - I emphasised to all of the parties (as is recorded in the notation in the July 2016 Order I made) that it was the Court’s expectation that all parties would immediately commence the preparation of their trial material and not await the making of formal directions by a Registrar, that process being anticipated to occur (and did occur) in about mid-August 2016. 

13. In addition, on 2 November 2016, I made further orders which afforded to Ms Vale the opportunity to file affidavit material by no later than 4.00 pm on Wednesday, 9 November 2016 and to serve the same by 10.00 am on Thursday 10 November 2016.  In so doing, I afforded to Ms Vale a further opportunity properly to engage in the trial process – particularly when regard is had to earlier directions made by a Registrar on various occasions and the order made by me in relation to the preparation of trial material - so that this matter, in which there are allegations of serious family violence, can properly be afforded a prioritised hearing at which those allegations can be ventilated and prosecuted. 

14. In my view, the only way - as I emphasised on 2 November 2016 - that these contested disputes of fact can be resolved is to afford the parties the opportunity to be heard in a trial process.  I emphasise, again, that it is for this reason, amongst others, that the decision was made to accord this matter significant priority and to bring it forward in those cases available and awaiting trial determination. 

15. I am not persuaded that there is any prejudice to Ms Vale which requires the trial, listed in July 2016 and through which process parties can be heard in relation to contested issues of fact, needs to await the determination of the appeal in relation to the review hearing. 

16. It is only, again I emphasise, at a trial that findings of fact can be made on a final basis.  As I emphasised on 2 November 2016, findings which are made and/or expressed by a Court in the course of its determination of interim parenting orders are not final findings of fact.  As I noted to Ms Vale on 2 November 2016, it is completely within her rights as a litigant engaged in litigation in this Court to raise and proffer evidence and to seek findings on the basis of that evidence that differ to findings made in the course of the disposition of interim proceedings which are, of course, attended by the very significant limitation that, in the usual course, parties are not permitted to engage in cross-examination.

17. It is, as I have emphasised to her on a number of occasions, completely within her purview to advance and to seek that findings of fact be made - for matters in contest between the parties - in the manner that she proposes and, thereafter, to make submissions which rest upon those findings of fact.  It is, as I have already said on 2 November, completely open to Ms Vale to advance that certain findings of fact be made and that any of her actions as established by the evidence should be regarded in light of those findings of fact which she seeks are made.

18. I am not persuaded, therefore, that the children’s best interests are met by adjourning the proceedings.  I hold significant concerns that further delay is not in the children’s best interests.  I hold significant concerns that an adjournment of the proceedings at this point in time is likely to accord further significant delay to the finalisation of the trial process, and that that does not assist either of the children. 

19. I also take into account that this is one of the significant factors in the matter:  to ensure that, to the extent possible, finality is brought to the proceedings between the children’s parents.

20. For these reasons, as supplemented by those which I have already delivered during the course of discourse on 2 November 2016, I refuse the applications, contained within the Applications in a Case filed 26 October 2016 and that made orally this morning by Ms Vale, for an adjournment of the trial.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 14 November 2016.

Associate:                 M. Murphy

Date: