BENNET & CARTER - [2013] FMCAfam 149

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BENNET & CARTER

[2013] FMCAfam 149

FAMILY LAW – Practice and Procedure – application for review of Registrar’s decision – application for review dismissed – no jurisdiction as short notice sought in Response.

FAMILY LAW – Practice and Procedure – objection to subpoena issued to Department of Immigration and Citizenship dismissed – documents relevant to the substantive proceedings before the Court.

Family Law Rules 2004, r.5.05(4)
Federal Magistrates Court Rules 2001 r.1.05
Evidence Act 1995, s.55
Family Law Act 1975, ss.60B, 68L, 68LA
International Convention on the Rights of the Child

Myers & Myers [2011] FMCAfam 1104
Rice & Asplund (1979) FLC 90-725

Applicant:

MS BENNET

Respondent:

MR CARTER

File Number:

PAC 5816 of 2012

Judgment of:

Harman FM

Hearing date:

30 January 2013

Date of Last Submission:

30 January 2013

Delivered at:

Parramatta

Delivered on:

30 January 2013

REPRESENTATION

Counsel for the Applicant:

Mr Sansom

Solicitors for the Applicant:

McPhee Kelshaw

Counsel for the Respondent:

Ms Cominos

Solicitors for the Respondent:

Cominos Lawyers

ORDERS

The Application for Review filed by the father on 14 January 2013 is dismissed.
The objection to the subpoena issued to the Department of Immigration and Citizenship is dismissed and leave is granted to the parties, the legal representatives for both parties and the Independent Children's Lawyer (once appointed) to inspect material produced on subpoena by the Department of Immigration and Citizenship.
Pursuant to s.68L of the Family Law Act 1975 an Independent Children’s Lawyer shall be appointed to represent the interests of the children the subject of these proceedings, [X] born [in] 1999 and [Y] born [in] 2001.
The Legal Aid Commission of NSW is requested to make arrangements as soon as practicable to facilitate the above order.
Each of the parties shall within seventy-two hours of any request complete and provide to the Independent Children’s Lawyer a parenting questionnaire and/or such other information as may be requested.
Each of the parties shall within seventy-two hours (or forthwith upon filing) forward to the Legal Aid Commission (Parramatta Office) copies of all any documents filed by them in these proceedings together with:
(a)Any medical reports they hold relating to the children;
(b)Any psychological or school counsellor or pre-school intervention reports they hold relating to the children;
(c)Any school reports they hold for the children;
(d)Any other documents they hold and wish the Independents Children’s Lawyer to see and/or that they intend to seek to tender to the Court or rely on in these proceedings.
Each of the parties shall present the children to such places and at such times and dates as are requested and/or advised by the Independents Children’s Lawyer for the purpose of the Independents Children’s Lawyer meeting with the children.
Leave is granted to the Independents Children’s Lawyer to inspect the Court file and any material produced to the Court pursuant to s.69ZW and/or in response to subpoena.
Pursuant to s.11F of the Family Law Act1975, the parties are directed to attend with a…

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 BENNET & CARTER

Details

AGLC: BENNET & CARTER [2013] FMCAfam 149
Case: [2013] FMCAfam 149
Decision Date

CaseChat Overview and Summary

The matter before the Federal Magistrates Court of Australia involved proceedings brought by Ms Bennet against Mr Carter concerning the care and custody of their two children. The father filed an Application for Review of a Registrar’s decision on 14 January 2013, which the Court dismissed due to the lack of jurisdiction as the review was not properly invoked. Additionally, the Court dismissed an objection to a subpoena issued to the Department of Immigration and Citizenship, finding the requested documents relevant to the substantive proceedings. The Court also granted leave for the parties and their legal representatives to inspect the documents produced by the Department. Furthermore, the Court ordered the appointment of an Independent Children’s Lawyer to represent the interests of the children and mandated a Child Inclusive Child Dispute Conference to ensure the children's voices are heard in the proceedings. The Court directed both parents to facilitate communication between the children and themselves and to attend with a Family Consultant for the Conference. These orders aimed to assist in resolving the substantive issues of the case and to comply with the International Convention on the Rights of the Child.

The legal issues before the Court involved the dismissal of the Application for Review, the relevance and admissibility of documents sought by subpoena, and the appropriateness of appointing an Independent Children’s Lawyer and holding a Child Inclusive Child Dispute Conference. The Court held that the Application for Review was improperly filed and did not fall within the jurisdiction of the Court. Regarding the subpoena, the Court found the documents relevant to the substantive issues of the case, particularly in light of the father's alleged absences from Australia and the children’s care arrangements. The appointment of an Independent Children’s Lawyer and the holding of a Child Inclusive Child Dispute Conference were deemed appropriate to ensure the children’s views were considered in the proceedings, in line with the principles of the International Convention on the Rights of the Child. These decisions were intended to facilitate the Court’s ability to make informed decisions regarding the children’s best interests.

Orders