Webster and Webster (No 2) - [2017] FamCA 557

FAMILY COURT OF AUSTRALIA

WEBSTER & WEBSTER (NO 2)

[2017] FamCA 557

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournment application – Where the father sought an adjournment of the upcoming trial – Where the father was in the United Kingdom and did not anticipate returning to Australia – Concluded an adjournment of the trial was of no utility as the father did not say when he ever could or would return to Australia – Leave granted for the father to appear at trial by audio-visual link – Where the father contends he will not be ready for trial and the process will be unfair without the benefit of legal representation – Where the mother is also unrepresented – Concluded the disadvantage to the father is only the same disadvantage suffered by the mother – Ordered father’s application for adjournment is dismissed

Family Law Act 1975 (Cth)

APPLICANT:

Ms Webster

RESPONDENT:

Mr Webster

INDEPENDENT CHILDREN’S LAWYER:

Ms Escobar, Clayhills Escobar Solicitors

FILE NUMBER:

SYC

5182

2015

DATE DELIVERED:

27 July 2017

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Austin J

HEARING DATE:

27 July 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Not Applicable

SOLICITOR FOR THE APPLICANT:

Not Applicable

COUNSEL FOR THE RESPONDENT:

Not Applicable

SOLICITOR FOR THE RESPONDENT:

Not Applicable

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Not Applicable

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Escobar

Orders

The father’s oral application to vacate the trial of the parties’ respective applications for parenting orders pursuant to Part VII of the Family Law Act, fixed to commence on 7 September 2017, is dismissed.
Leave is granted to the father to appear at the trial by audio-visual link.

The time for the parties’ compliance with Orders 4 to 6 inclusive made on 7 June 2017 is extended to Friday, 4 August 2017.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Webster & Webster (No 2) 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: SYC 5182 of 2015

Ms Webster

Applicant

And

Mr Webster

Respondent

And

Independent Children’s Lawyer

Ex Tempore

REASONS FOR JUDGMENT

On 7 June 2017, I made procedural orders between the parties and the Independent Children's Lawyer listing their outstanding applications for parenting orders under Part VII of the Family Law Act 1975 (Cth) (“the Act”) for trial on 7 September 2017.
The parties are also in dispute over their property settlement, but their respective applications for orders pursuant to Part VIII of the Act are not yet ready for trial and so they were listed for only further procedural directions on 7 September 2017.
At the time the procedural orders were made on 7 June 2017, both parties were self-represented. In accordance with the submissions they then made, directions were made under Part VII, Division 12A of the Act for only the parties to give evidence in their respective cases. As would be…

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 Webster and Webster (No 2)

Details

AGLC: Webster and Webster (No 2) [2017] FamCA 557
Case: [2017] FamCA 557
Decision Date: 27 July 2017

CaseChat Overview and Summary

In *Webster and Webster (No 2)*, Austin J of the Family Court of Australia considered applications for parenting orders. The father sought to vacate the trial date, which was scheduled to commence on 7 September 2017.

The primary legal issue before the court was whether to grant the father's oral application to vacate the trial. A secondary issue was whether to grant the father leave to appear at the trial by audio-visual link. The court also considered an application for an extension of time for the parties' compliance with previous orders.

Austin J dismissed the father's application to vacate the trial, indicating that the grounds presented were insufficient to justify such a significant disruption to the court's schedule. However, the court granted leave for the father to appear at the trial via audio-visual link, acknowledging potential difficulties with his attendance. Furthermore, the court extended the time for the parties to comply with specific orders made on 7 June 2017, setting a new compliance deadline of 4 August 2017.

Orders

Orders of the court

The father’s oral application to vacate the trial of the parties’ respective applications for parenting orders pursuant to Part VII of the Family Law Act, fixed to commence on 7 September 2017, is dismissed.

Leave is granted to the father to appear at the trial by audio-visual link.

The time for the parties’ compliance with Orders 4 to 6 inclusive made on 7 June 2017 is extended to Friday, 4 August 2017.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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