BENNET & CARTER (NO.2) - [2013] FMCAfam 215

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BENNET & CARTER (NO.2)

[2013] FMCAfam 215

FAMILY LAW – Practice and procedure – whether an Independent Children’s Lawyer is a “person” for the purpose of exemption to the filing fee for a subpoena.

Family Law Act 1975, ss.68L, 68LA
Family Law (Fees) Regulation 2012, regs.1.03, 2.01, 2.03, 2.04, 2.05
Acts Interpretation Act 1901 (Cth) ss.15A, 15AA, 15AB

Bennett & Bennett (1991) FLC 92-191

Croft & Croft [2013] FMCAfam 182
F & F (presently unreported)

Applicant:

MS BENNET

Respondent:

MR CARTER

File Number:

PAC 5816 of 2012

Judgment of:

Harman FM

Hearing date:

4 March 2013

Date of Last Submission:

4 March 2013

Delivered at:

Parramatta

Delivered on:

4 March 2013

REPRESENTATION

Counsel for the Applicant:

Mr Batey of Counsel

Solicitors for the Applicant:

Mcphee Kelshaw

Counsel for the Respondent:

Ms Cominos

Solicitors for the Respondent:

Cominos Lawyers

Counsel for the Independent Children’s Lawyer:

Mr Walkden

Solicitors for the Independent Children’s Lawyer:

Legal Aid Commission of NSW

ORDERS

The proceedings are adjourned to 9.30am on 20 May 2013 for further mention directions and, if required and time permitting, possible Interim Hearing.
Pursuant to s.11F of the Family Law Act1975, the parties are directed to attend with a Family Consultant for the purpose of a further Child Inclusive Child Dispute Conference at 9.00am on 16 May 2013 and:
(a)The parties shall continue to attend at such times, dates and places as the consultant may advise;
(b)The parties and each of them shall do all things necessary to ensure the attendance of their child/ren the subject of these proceedings to attend at the conference and to be available to meet with the Family Consultant;
(c)The Family Consultant is requested to provide to the Court (and if, in the Consultant’s view it is a appropriate to do so, the parties) a memo outlining and reporting on:
(i)Any agreement reached between the parties;
(ii)The issues raised by the parties and which will require determination by the Court;
(iii)Any views or opinions expressed by the child/ren interviewed and any comment regarding the factors perceived to influence or impact upon those views and opinions or otherwise relevant to same;
(iv)Any recommendations by the Consultant including as to Case Management, referral to external (community based or private) services and/or programs and resources to be allocated to the matter including but not limited to expedition, Independent Children’s Lawyer and/or full Family Report or Part 15 experts report.
The Notice of objection to subpoena is stood over to the adjourned date.
By consent, leave is granted to the Independent Children’s Lawyer to issue such further subpoena as they may consider relevant, appropriate or useful and such leave expressly authorises and allows the issue of more than five subpoenas.
The Court declares that it is satisfied that the Independent Children’s Lawyer is a person to whom the provisions of Regulation 2.04 apply and is thus exempt from payment of fees and thus is entitled to file subpoena without collection of any fee.
By…

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: [2013] FMCAfam 215
Decision Date: 4 March 2013

CaseChat Overview and Summary

Bennet and Carter are the parties involved in this case, which was heard in the Family Court of Australia. The nature of the dispute is not explicitly stated in the text, but it pertains to matters of family law, likely involving issues surrounding child custody, care, and protection. The court was required to make various orders concerning the proceedings, including the scheduling of further hearings and conferences, the issuance of subpoenas, and the implementation of settlement terms. The court's primary responsibility was to ensure that the welfare of the child(ren) involved in the dispute was prioritised and that appropriate steps were taken to facilitate a resolution.

The legal issues before the court involved the interpretation and application of the Family Law Act 1975 and the Family Law Regulations 1984. The court had to determine how to manage the proceedings effectively, considering the need for a Child Inclusive Child Dispute Conference, the role of the Independent Children's Lawyer, and the issuance of subpoenas. Additionally, the court had to address the exemption of the Independent Children's Lawyer from fee payments, as well as the consequences of non-compliance with the court's orders.

The court's reasoning was grounded in the need to protect the best interests of the child(ren) involved and to ensure that the proceedings were managed in an efficient and effective manner. The court scheduled further mention directions and a Child Inclusive Child Dispute Conference to allow the parties to attempt to resolve their differences with the assistance of a Family Consultant. The court also addressed the issuance of subpoenas and the role of the Independent Children's Lawyer, granting leave for the issuance of additional subpoenas and confirming the exemption from fees. Finally, the court incorporated the terms of the settlement agreement into its orders and provided a Fact Sheet outlining the obligations and consequences of non-compliance.

The final orders of the court included the adjournment of the proceedings, the scheduling of a Child Inclusive Child Dispute Conference, the exemption of the Independent Children's Lawyer from fee payments, and the incorporation of the settlement terms into the court's orders. The court also granted leave for the issuance of additional subpoenas and provided a Fact Sheet to assist the parties in understanding their obligations and the consequences of non-compliance.

Orders

Orders of the court

The proceedings are adjourned to 9.30am on 20 May 2013 for further mention directions and, if required and time permitting, possible Interim Hearing.

Pursuant to s.11F of the Family Law Act 1975, the parties are directed to attend with a Family Consultant for the purpose of a further Child Inclusive Child Dispute Conference at 9.00am on 16 May 2013 and:

(a) The parties shall continue to attend at such times, dates and places as the consultant may advise;

(b) The parties and each of them shall do all things necessary to ensure the attendance of their child/ren the subject of these proceedings to attend at the conference and to be available to meet with the Family Consultant;

(c) The Family Consultant is requested to provide to the Court (and if, in the Consultant’s view it is a appropriate to do so, the parties) a memo outlining and reporting on:

(i) Any agreement reached between the parties;

(ii) The issues raised by the parties and which will require determination by the Court;

(iii) Any views or opinions expressed by the child/ren interviewed and any comment regarding the factors perceived to influence or impact upon those views and opinions or otherwise relevant to same;

(iv) Any recommendations by the Consultant including as to Case Management, referral to external (community based or private) services and/or programs and resources to be allocated to the matter including but not limited to expedition, Independent Children’s Lawyer and/or full Family Report or Part 15 experts report.

The Notice of objection to subpoena is stood over to the adjourned date.

By consent, leave is granted to the Independent Children’s Lawyer to issue such further subpoena as they may consider relevant, appropriate or useful and such leave expressly authorises and allows the issue of more than five subpoenas.

The Court declares that it is satisfied that the Independent Children’s Lawyer is a person to whom the provisions of Regulation 2.04 apply and is thus exempt from payment of fees and thus is entitled to file subpoena without collection of any fee.

By consent, orders are made in accordance with the terms of settlement marked Exhibit ‘A’ and attached hereto.

Pursuant to s.65DA(2) and s.62B, the particulars of 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 these particulars are included in these orders.

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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