SALDO & TINDALL

[2015] FamCA 1029

FAMILY COURT OF AUSTRALIA

SALDO & TINDALL [2015] FamCA 1029

FAMILY LAW – PRACTICE & PROCEDURE – Where the mother sought to vacate the final hearing dates – Where the matter was set down on 26 May 2015 for final hearing in November 2015 and any uncertainty or ambiguity has not been raised with the Court for the six months since – Where the balance of fairness and justice in the case falls in favour of the matter proceeding to final hearing – Application dismissed

In the Marriage of Rice & Asplund (1979) FLC 90-725

APPLICANT: Mr Saldo

RESPONDENT: Ms Tindall

FILE NUMBER: NCC 3176 of 2008

DATE DELIVERED: 23 November 2015

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 23 November 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Boyd

SOLICITOR FOR THE APPLICANT: Fielden & Associates

COUNSEL FOR THE RESPONDENT: Mr Kelly

SOLICITOR FOR THE RESPONDENT: Derham Houston

Orders

1. The Application in a Case filed by the mother on 13 November 2015 is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Saldo & Tindall 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: NCC 3176 of 2008

Mr Saldo

Applicant

And

Ms Tindall

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. The reasons for not granting the application[1] to vacate the hearing dates is that this matter was set down for final hearing on 26 May 2015 and any uncertainty or ambiguity has not been raised with the Court for the six months since.

   [1] Mother’s Application in a Case and Affidavit of solicitor filed 13 November 2015

2. The balance of fairness and justice in the case, which was first filed by the application of the father on 4 April 2014, falls in favour of the matter proceeding on Thursday and Friday.  But noting there was no explicit statement by the Court that the Rice & Asplund[2] threshold had been crossed or that there was sufficient change of circumstance to justify re-visiting of the parenting orders, but that it is implicit in the course of events. 

   [2]In the Marriage of Rice & Asplund (1979) FLC 90-725

3. So taking into account that matter and the balance of fairness and this application being raised a week before the hearing, these are the reasons for not granting the application to simply vacate the dates

I certify that the preceding three (3) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Cleary delivered on

23 November 2015.

Associate: 

Date:  24 November 2015