Anelli and Sault - [2018] FamCA 80

FAMILY COURT OF AUSTRALIA

ANELLI & SAULT

[2018] FamCA 80

FAMILY LAW – PRACTICE AND PROCEDURE – Senior Registrar – Review of decision
FAMILY LAW – CHILDREN – Parenting Orders – application for an interim order for equal shared parental responsibility

APPLICANT:

Mr Anelli

RESPONDENT:

Ms Sault

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

Ms M Pandeli

FILE NUMBER:

MLC

9855

2016

DATE DELIVERED:

20 February 2018

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Bennett J

HEARING DATE:

5 September 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

In Person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT:

Ms Jenkinson

SOLICITOR FOR THE RESPONDENT:

Trapski Family Law

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Barbayannis Lawyers

Orders

That the father’s application in a case filed 17 July 2017, being a review of the decision of the Senior Registrar made on 16 May 2017, be and is hereby dismissed, NOTING THAT the result is that until further order the father has no enforceable or other entitlement to spend time with or communicate with the children, B born … 2006 and C born … 2007.
Any party who proposes to undergo a psychiatric or psychological assessment by a single expert witness (as agreed) for the purpose of this proceeding be at liberty to provide the said expert with a copy of any documents in this proceeding including but not limited to the assessments and reports prepared by family consultants or other experts.
Until further order, the parties be and are hereby restrained from making any complaint to a professional body or association concerning the conduct of any Single Expert engaged for the purpose of this proceeding, or causing, permitting or suffering any other person to do so, without first obtaining leave of the Court and this injunction remain in full force and effect following completion of the proceedings.
The parties (or any of them) be permitted to rely on the documents and evidence in this proceeding, extant orders and these reasons for decision in any proceedings between the mother and the father or Victoria Police, and the mother or the father under State family violence legislation.
Any party wishing to make an application for costs may do so by filing and serving a submission in writing, of not more than four pages in length, within 14 days.
That pursuant to Sections 65DA(2) and 62B the particulars and the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Anelli & Sault has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the…

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 Anelli and Sault

Details

AGLC: Anelli and Sault [2018] FamCA 80
Case: [2018] FamCA 80
Decision Date: 20 February 2018

CaseChat Overview and Summary

In *Anelli and Sault*, Bennett J of the Federal Circuit Court of Australia considered an application by the father to review a decision of the Senior Registrar made on 16 May 2017. The dispute concerned the father's entitlement to spend time with or communicate with the children, B and C.

The court was required to determine whether to uphold the Senior Registrar's decision, which effectively meant the father had no enforceable entitlement to spend time with or communicate with the children. Additionally, the court considered various ancillary orders relating to expert assessments, injunctions against complaints to professional bodies, the use of existing evidence in other proceedings, and costs.

Bennett J dismissed the father's application, thereby confirming the Senior Registrar's decision. The reasoning for this outcome is not detailed in the provided text, but the orders reflect a significant restriction on the father's contact with the children. The court also made orders permitting parties to provide relevant documents to single expert witnesses, restraining parties from complaining to professional bodies about single experts without leave, allowing reliance on existing evidence in state family violence proceedings, and setting out a process for costs applications. The orders also incorporated a fact sheet detailing contravention consequences and compliance assistance.

Orders

Orders of the court

That the father’s application in a case filed 17 July 2017, being a review of the decision of the Senior Registrar made on 16 May 2017, be and is hereby dismissed, NOTING THAT the result is that until further order the father has no enforceable or other entitlement to spend time with or communicate with the children, B born … 2006 and C born … 2007.

Any party who proposes to undergo a psychiatric or psychological assessment by a single expert witness (as agreed) for the purpose of this proceeding be at liberty to provide the said expert with a copy of any documents in this proceeding including but not limited to the assessments and reports prepared by family consultants or other experts.

Until further order, the parties be and are hereby restrained from making any complaint to a professional body or association concerning the conduct of any Single Expert engaged for the purpose of this proceeding, or causing, permitting or suffering any other person to do so, without first obtaining leave of the Court and this injunction remain in full force and effect following completion of the proceedings.

The parties (or any of them) be permitted to rely on the documents and evidence in this proceeding, extant orders and these reasons for decision in any proceedings between the mother and the father or Victoria Police, and the mother or the father under State family violence legislation.

Any party wishing to make an application for costs may do so by filing and serving a submission in writing, of not more than four pages in length, within 14 days.

That pursuant to Sections 65DA(2) and 62B the particulars and the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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