Obligations to Try and Settle Matters

FEDERAL CIRCUIT COURT OF AUSTRALIA

DELMERE & DAYTON [2020] FCCA 379

 

Applicant: MR DELMERE

Respondent: MS DAYTON

File Number: BRC 11298 of 2016

Judgment of: Judge Egan

Hearing date: 11 February 2020

Date of Last Submission: 11 February 2020

Delivered at: Brisbane

Delivered on: 11 February 2020

 

REPRESENTATION

Solicitors for the Applicant: Simonidis Steel Lawyers

Counsel for the Respondent: Mr B. Blond

Solicitors for the Respondent: Stockley Pagano Lawyers

Solicitors for the Independent Children’s Lawyer: Dooley Solicitors

 

ORDERS

(1) That the parties attend a mediation in relation to the matters to which the proceedings relate and make a bona fide endeavour to reach agreement on relevant matters in issue between them, such conference to be held in Brisbane.
(2) That such mediation be conducted by a mediator as agreed between the parties and failing agreement as follows:

(a) That within seven days of the date of these orders, the applicant provide a panel of three experts to the respondent, with a list of their fees, relevant experience and availability;
(b) That within a further seven days the respondent is to select one expert from the panel; and
(c) In the event that the respondent fails to choose within the specified timeframe then the applicant may so choose the mediator.

(3) That the trial hearing dates of 9, 10, and 11 March 2020 be vacated.
(4) That the Independent Children’s Lawyer be granted leave to inspect and copy all subpoenaed documents.
(5) That the proceeding be otherwise adjourned to the Registrar for case management in the family law list of this court by a judge other than Judge Egan.
(6) That the costs of and incidental to today’s hearing be reserved.

 

IT IS NOTED that publication of this judgment under the pseudonym Delmere & Dayton is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

 

FEDERAL CIRCUIT COURT

OF AUSTRALIA

AT BRISBANE

BRC 11298 of 2016

MR DELMERE

Applicant

And

MS DAYTON

Respondent

 

REASONS FOR JUDGMENT

1. This matter has been before the court on a number of occasions as follows:

a) On 8 March 2019, the matter first was heard by the court. After a one day hearing, it was adjourned for a further hearing to 16 April 2019.
b) On 16 April 2019, the matter was unable to proceed due to judicial illness, and the matter was further adjourned to 9 May 2019.
c) On 9 May 2019, the matter was adjourned after a short hearing. Various orders were made, which orders needed to be the subject of consideration by the parties. The matter was further adjourned for another two day hearing to 14 October 2019.
d) On 14 October 2019, the court was concerned that the previous and most recent family report, dated 20 October 2018, was out of date. The court ordered that a further report from Ms A, social worker, be prepared, and that the parties attend before Ms A for the purpose of such report’s preparation. The matter was listed for hearing for three days on 9, 10 and 11 March 2020.

2. On or about 6 February 2020, Mr Dooley, the independent children's lawyer in this matter, filed an affidavit, which affidavit relevantly annexed the updated report of Ms A, dated 4 February 2020.
3. The court had the opportunity to read the report of Ms A, which, it is conceded by all parties, made clear recommendations as to who the child, the subject of the dispute, should live with.
4. This jurisdiction is one where parties must recognise that they have an obligation to try to sensibly settle matters out of court if at all possible. This is a matter which is eminently able to be so settled. It was noted that a previously held position of the respondent, that she was intending to press allegations of sexual misconduct on the part of the applicant father, have today been withdrawn. In those circumstances, the path for a mediation is clearly open, and it is one which the court intends to facilitate.
5. It is the case that this matter has been before this court as presently constituted on a number of occasions. If it is the case that after mediation the matter is unable to be the subject of a settlement, it is considered that the matter should best go back into the family law list of this court for further case management.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Judge Egan

 

Date: 24 February 2020

Posted in: Derek Legal Blog at 14 April 20