BEAUMONT & BARNEY - [2014] FCCA 3125

FEDERAL CIRCUIT COURT OF AUSTRALIA

BEAUMONT & BARNEY

[2014] FCCA 3125

Catchwords:
FAMILY LAW – Parenting – unacceptable risk – allegations of abuse.

FAMILY LAW – Costs – adjournment of final hearing sought and granted – failure to adduce any evidence in admissible form regarding pivotal issue –failure to make available and appropriate enquiries regarding evidence – trial unable to safely proceed on available evidence – respondent and independent children’s lawyer ordered to pay costs.

Legislation:

Evidence Act 1995 (Cth), s.140
Family Law Act 1975, ss.62G, 67ZBB, 68LA, 69ZW, 117
Criminal Procedure Act 2009 (Victoria), s.368A
Federal Circuit Court Rules 2001, schedule 1

Makita & Sprowles (2001) 52 NSWLR 705
Johnson & Page [2007] FamCA 1235
Deacon & Castle [2013] FCCA 691
Bennett & Bennett (1991) FLC 92-191
Re JJT & Ors; Ex Parte Victoria Legal Aid [1998] FLC 92-812
B & B (1993) FLC 92-357
M & M [1988] HCA 68

Applicant:

MR BEAUMONT

Respondent:

MS BARNEY

File Number:

AYC 374 of 2013

Judgment of:

Judge Harman

Hearing date:

14 November 2014

Date of Last Submission:

14 November 2014

Delivered at:

Albury

Delivered on:

14 November 2014

REPRESENTATION

Counsel for the Applicant:

Mr Jackson

Solicitors for the Applicant:

Lampe Family Lawyers

Solicitors for the Respondent:

Mr Hall of Skinner & Associates

Counsel for the Independent Children’s Lawyer:

Ms Giacomo

Solicitors for the Independent Children’s Lawyer:

Cater & Blumer

ORDERS

Adjourn the proceedings for further hearing on a part heard basis and by video-link between Parramatta and Albury to 10am 12-13 May 2015.
The parties and the Independent Children’s Lawyer shall forthwith do all things, sign all documents, give all instructions and consents necessary and attend such appointments and cause the children of the relationship to attend such appointments as are necessary to enable
Ms O to complete an updated or supplementary report pursuant to part 15 of the Federal Circuit Court Rules 2001 and with respect to same:
(a)Ms O is requested to address the apparent misunderstanding as to the children’s knowledge of Mr Beaumont as their biological father (leading to a recommendation which would appear erroneous that the children receive counselling to apprise them of that reality of which they are already fully aware);
(b)To consider such further material as has already been and/or may be provided regarding suggested allegations or disclosures of sexual assault on the child [Z] and any change to recommendations which arise as a consequence of such further information; and
(c)Ms O is requested to complete her report and provide it to the Court for release if at all possible by 1 May 2015.
Each of the parties shall file and serve any amended or updated evidence upon which they seek to rely at trial no later than close of business 27 February 2015, such material to be confined to:
(a)Evidence in admissible form as to suggested disclosures by the child [Z] of sexual assaults occurring in or about September 2011; and
(b)Any events or circumstances which have arisen since 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 BEAUMONT & BARNEY

Details

AGLC: BEAUMONT & BARNEY [2014] FCCA 3125
Case: [2014] FCCA 3125
Decision Date: 14 November 2014

CaseChat Overview and Summary

In the matter of Beaumont & Barney, Judge Harman of the Federal Circuit Court of Australia considered parenting orders concerning allegations of abuse. The dispute involved the father, Mr. Beaumont, and the mother, and the Independent Children's Lawyer (ICL) represented the interests of the children. The proceedings were adjourned due to the inability to safely proceed on the available evidence.

The court was required to determine whether the proceedings could safely continue given the lack of admissible evidence regarding pivotal issues, particularly allegations of sexual assault concerning the child [Z]. The court also had to consider the appropriate course of action to ensure that all necessary evidence was obtained and presented in a form that could be safely considered, including the need for an updated report from the expert, Ms. O, and the production of specific interview recordings and transcripts.

Judge Harman reasoned that the trial could not safely proceed without further evidence, especially concerning the alleged sexual assault. The court noted the failure to adduce evidence in admissible form and the lack of appropriate enquiries regarding available evidence. Consequently, the proceedings were adjourned for a further hearing. The court also ordered the mother and the ICL to pay costs thrown away by the adjournment, reflecting their respective roles in the inability to proceed. The court further directed the production of specific interview recordings and transcripts from the Victorian Police Service, subject to strict viewing conditions, to assist in determining the children's best interests.

Orders

Orders of the court

Adjourn the proceedings for further hearing on a part heard basis and by video-link between Parramatta and Albury to 10am 12-13 May 2015.

The parties and the Independent Children’s Lawyer shall forthwith do all things, sign all documents, give all instructions and consents necessary and attend such appointments and cause the children of the relationship to attend such appointments as are necessary to enable

Ms O to complete an updated or supplementary report pursuant to part 15 of the Federal Circuit Court Rules 2001 and with respect to same:

(a) Ms O is requested to address the apparent misunderstanding as to the children’s knowledge of Mr Beaumont as their biological father (leading to a recommendation which would appear erroneous that the children receive counselling to apprise them of that reality of which they are already fully aware);

(b) To consider such further material as has already been and/or may be provided regarding suggested allegations or disclosures of sexual assault on the child [Z] and any change to recommendations which arise as a consequence of such further information; and

Each of the parties shall file and serve any amended or updated evidence upon which they seek to rely at trial no later than close of business 27 February 2015, such material to be confined to:

(a) Evidence in admissible form as to suggested disclosures by the child [Z] of sexual assaults occurring in or about September 2011; and

(b) Any events or circumstances which have arisen since the swearing of their trial affidavit.

The Respondent mother shall pay to the father or as his attorneys may direct a contribution towards his costs thrown away in the sum of $682.00 such sum to be paid within 21 days.

The Independent Children’s Lawyer shall pay to the father or as his attorneys may direct a contribution towards his costs thrown away in the sum of $341.00 such sum to be paid within 21 days.

Pursuant to both section 69ZW of the Family Law Act 1975 and section 368A of the Criminal Procedure Act 2009 (VIC) the Commissioner of Police of the Victorian Police Service and to the extent that it is necessary to ensure production, Detective Sergeant B badge number [omitted] (station Cobram/Shepparton) shall provide to this Court within 28 days any electronic or video recording of interviews conducted with the children [X] born [omitted] 2004, [Y] born [omitted] 2005 and [Z] born [omitted] 2006 or any of them, such interviews having been conducted in or about September and/or October 2011 together with any written transcripts of those interviews produced and with respect to same:

(a) Those interviews and/or transcripts may only be viewed or listened to by the legal representatives of the parties, the Independent Children’s Lawyer, the part 15 expert Ms O and the Applicant and Respondent (and in the case of the Applicant and Respondent they are to be present with their legal representatives if so viewing or listening to a recording or viewing a transcript);

(b) The material above is to be produced to this Registry (Albury Family Law Courts, 463 Kiewa Street, PO Box 914, Albury, 2640 NSW) no later than close of business 12 December 2014;

(c) At the conclusion of the proceedings and at the expiration of the Appeal period and absent any Appeal having been filed all material produced is to be returned to the Victorian Police Service; and

(d) I declare that I am satisfied that it is in the best interests of the above three children that the material sought to be produced is in fact produced and so that this Court can hear, determine and conclude proceedings with respect to the care, welfare and development of the children presently before the Court.

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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