Vale and Vale (No 7)

[2016] FamCA 991

FAMILY COURT OF AUSTRALIA

VALE & VALE (NO 7) [2016] FamCA 991

FAMILY LAW – PRACTICE AND PROCEDURE – where the Respondent attended the first day of the trial – where the Respondent failed to attend the second morning of the trial – the matter to proceed. 

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: 15 November 2016

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 15 November 2016

REPRESENTATION

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

THE RESPONDENT: No appearance

COUNSEL FOR THE INTERVENOR: Mr Moore

SOLICITOR FOR THE INTERVENOR: New South Wales Crown Solicitor

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 GIVEN THE RESPONDENT’S FAILURE TO APPEAR

1. The final hearing of this matter shall continue in the Respondent’s absence.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Vale & Vale (No 7) 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 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 am persuaded by the joint submissions made by Counsel on behalf of their respective clients that the appropriate course in this matter is to continue with the trial.  It is clear that Ms Vale has thus far participated in the process to the extent of making an application yesterday for an adjournment firstly, and, thereafter, an application that I recuse myself from the further conduct of the proceedings.

2. The other parties are all present.  The witnesses are available, as I understand it, or at least those who are required for cross-examination.  Trial directions have previously been made in mid-August of this year to facilitate the listing of the trial that took place when I made orders in July of this year. 

3. Regard to the Court file will establish that, despite orders and directions for the filing of material by Ms Vale personally (namely, a trial affidavit) that has not been filed by her - although it is also clear that affidavits from her have been filed, or on her behalf have been filed, either by other witnesses or by her in support of other interlocutory applications.

4. I am not persuaded by the contents of the email which I have marked as Exhibit 1, that there is any proper basis for the adjournment of the trial. 

5. Nothing has changed vis-à-vis the imperative of bringing the proceedings to a conclusion, in my view. 

6. For those reasons then, the fact of Ms Vale’s determination to absent herself at this stage from further engagement in the process does not persuade me that the appropriate course is to adjourn the proceedings.  For those very short reasons, and in the context of the matter, I intend to continue to hear the trial.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 15 November 2016.

Associate:                 

Date:    15 November 2016