ADEMA & HAMBLETON (No.2) - [2020] FCCA 2279

FEDERAL CIRCUIT COURT OF AUSTRALIA

ADEMA & HAMBLETON (No.2)

[2020] FCCA 2279

Catchwords:
FAMILY LAW – Parenting arrangements for child aged 3 years – issues of family violence – mother suffering from mental health issues – assessment of risk – best interests – matters to be considered.

Legislation:

Family Law Act 1975 (Cth), ss.4AB, 60CC

Cases cited:

Adema & Hambleton [2018] FCCA 3152

Applicant:

MS HAMBLETON

Respondent:

MR ADEMA

File Number:

ADC 4220 of 2018

Judgment of:

Judge Brown

Hearing date:

23 June 2020

Date of Last Submission:

23 June 2020

Delivered at:

Adelaide

Delivered on:

23 June 2020

REPRESENTATION

Counsel for the Applicant:

Ms Shorter

Solicitors for the Applicant:

Duncan Basheer Hannon

Counsel for the Respondent:

Mr Bowler

Solicitors for the Respondent:

Scales & Partners

ORDERS

Pursuant to Section 68L of the Family Law Act 1975 THAT an Independent Children’s Lawyer be appointed to represent the interests of the child X born in 2017 and to facilitate such appointment the Parties’ respective solicitors do forward all relevant documents to Mr Graham Russell of the Legal Services Commission of South Australia within seven (7) days of today’s date and that the Independent Children’s Lawyer use his or her best endeavours to be in a position to make submissions to the Court on the adjourned date.
Immediately upon appointment by the said Legal Services Commission of South Australia or otherwise, the Independent Children’s Lawyer file a Notice of Address for Service.
The parties’ legal representatives and the independent children’s lawyer be at liberty to inspect and copy all documents produced to date pursuant to section 69ZW subpoena by the South Australian Police and materials received from the B Hospital (SAVE & EXCEPT for those marked confidential).
In the event any party (or the Independent Children’s Lawyer) in these proceedings seeks to rely upon any material produced pursuant to subpoena then such documents shall be put before the Court by way of affidavit to be filed and served as follows:
(a)setting out short reasons for the inclusion of each set of documents, including reference to any current pleadings, and
(b)annexing such material as is considered relevant, with
(c)the affidavit to be paginated, indexed and exhibits tagged.
Further consideration of the matter is adjourned to 21 July 2020 at 2:15pm.

IT IS NOTED that publication of this judgment under the pseudonym Adema & Hambleton (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 4220 of 2018

MS HAMBLETON

Applicant

And

MR ADEMA

Respondent

REASONS FOR JUDGMENT

These reasons for judgment were delivered orally, immediately following the interim hearing. Given the moment of the decision for each of the parties concerned and the fact that an Independent Children’s Lawyer is to be appointed, it is appropriate that the reasons be transcribed. This is the relevant transcript. Grammatical errors have been corrected and efforts made to make the oral reasons amenable to being read.
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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.

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Details

Case: [2020] FCCA 2279
Decision Date: 23 June 2020

CaseChat Overview and Summary

In the matter of ADEMA & HAMBLETON (No.2), Judge Brown of the Federal Circuit Court of Australia was required to determine the appropriate orders concerning the representation of a child and the use of evidence in proceedings. The dispute involved the parties' solicitors and the interests of the child, X, born in 2017.

The court was tasked with deciding whether to appoint an Independent Children's Lawyer (ICL) and, if so, how to facilitate that appointment and the subsequent conduct of the ICL. Furthermore, the court needed to determine the conditions under which documents produced by subpoena from the South Australian Police and materials received from B Hospital could be inspected, copied, and relied upon by the parties and the ICL.

Judge Brown ordered the appointment of an Independent Children's Lawyer to represent the interests of the child X, directing the parties' solicitors to forward all relevant documents to the Legal Services Commission of South Australia within seven days to facilitate this appointment. The ICL was directed to endeavour to be in a position to make submissions on the adjourned date and to file a Notice of Address for Service immediately upon appointment. The parties' legal representatives and the ICL were granted liberty to inspect and copy documents produced by subpoena from the South Australian Police and materials from B Hospital, with the exception of confidential materials. The court further stipulated that any party or the ICL seeking to rely on subpoenaed material must present it via affidavit, including short reasons for its inclusion, annexing relevant material, and ensuring the affidavit is paginated, indexed, and exhibits tagged. The further consideration of the matter was adjourned to 21 July 2020.

Orders

Orders of the court

Pursuant to Section 68L of the Family Law Act 1975 THAT an Independent Children’s Lawyer be appointed to represent the interests of the child X born in 2017 and to facilitate such appointment the Parties’ respective solicitors do forward all relevant documents to Mr Graham Russell of the Legal Services Commission of South Australia within seven (7) days of today’s date and that the Independent Children’s Lawyer use his or her best endeavours to be in a position to make submissions to the Court on the adjourned date.

Immediately upon appointment by the said Legal Services Commission of South Australia or otherwise, the Independent Children’s Lawyer file a Notice of Address for Service.

The parties’ legal representatives and the independent children’s lawyer be at liberty to inspect and copy all documents produced to date pursuant to section 69ZW subpoena by the South Australian Police and materials received from the B Hospital (SAVE & EXCEPT for those marked confidential).

In the event any party (or the Independent Children’s Lawyer) in these proceedings seeks to rely upon any material produced pursuant to subpoena then such documents shall be put before the Court by way of affidavit to be filed and served as follows:

(a) setting out short reasons for the inclusion of each set of documents, including reference to any current pleadings, and

(b) annexing such material as is considered relevant, with

Further consideration of the matter is adjourned to 21 July 2020 at 2:15pm.

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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