Burke and Carrow - [2011] FMCAfam 286

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BURKE & CARROW

[2011] FMCAfam 286

FAMILY LAW – Children – interim application – application to vacate earlier injunctive orders – voir dire – earlier Family Reports – reasons for decision of earlier hearing – admissibility of evidence.

Child Support (Registration and Collection) Act 1988 (Cth), ss.110B, 110F, 110G
Evidence Act 1995 (Cth), ss.135, 136, 137
Family Law Act 1975 (Cth), ss.62G, 69ZU

Carrow & Burke [2010] FMCAfam 1071
Hayman v Hayman (1976) 90-140; 2 Fam LR 11588
Houston v Sedorkin (1979) 90-699
Miller & Harrington [2008] FamCAFC 150; (2008) FLC 93-383
Minister for Immigration & Citizenship v SZIZO [2009] HCA 37; (2009) 238 CLR 627
Rice v Asplund (1979) 90-725

Applicant:

MR BURKE

Respondent:

MS CARROW

File Number:

SYC 1187 of 2008

Judgment of:

Scarlett FM

Hearing date:

29 March 2011

Date of Last Submission:

29 March 2011

Delivered at:

Sydney

Delivered on:

29 March 2011

REPRESENTATION

Solicitor for the Applicant:

Mr Carlisle

Solicitors for the Applicant:

Carlisle Attorneys

Counsel for the Respondent:

Mr Schonell SC

Solicitors for the Respondent:

Barkus Doolan Kelly Family Lawyers

ORDERS

The Application to vacate Orders 1 and 2 made on 15 October 2010 is dismissed.
The Father is permitted to tender into evidence in this proceeding copies of Family Reports prepared on 14 July 2008 and 7 May 2009 by Family Consultant Ms M on condition that:
(a)the Father calls the said Family Consultant to give oral evidence in this proceeding; and
(b)the Father provides to the Mother’s solicitors at his expense a copy of the Transcript of the oral evidence given by the said Family Consultant at the hearing on 12 and 13 May 2009 no later than five (5) working days prior to the date on which the Family consultant gives oral evidence as set out in Order (2)(a) above.
The Father is permitted to tender into evidence the Reasons for Judgment delivered by Altobelli FM on 25 June 2009.
Applicant’s costs of today are reserved.

IT IS NOTED that publication of this judgment under the pseudonym Burke & Carrow is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYC 1187 of 2008

MR BURKE

Applicant

And

MS CARROW

Respondent

REASONS FOR JUDGMENT

Application

This is an application by the Father, who is the Respondent in the substantive proceedings.
He is, of course, the Applicant in this application and will be so referred to but in the substantive proceedings he is the Respondent and the Mother is the Applicant. This is so notwithstanding the somewhat confusing documents that have been filed in the substantive application on 22^nd of last month and 4^th of this month. On that occasion the Father filed a document entitled “Amended Initiating Application” in which he sets out the orders which he is now seeking, presumably on a final basis.
The Mother on 4^th March 2011 filed a document headed “Amended Response to Initiating Application” in which…

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 Burke and Carrow

Details

AGLC: Burke and Carrow [2011] FMCAfam 286
Case: [2011] FMCAfam 286
Decision Date: 29 March 2011

CaseChat Overview and Summary

In the case of Burke and Carrow, the matter was heard in the Family Court of Australia, where the father sought to vacate certain orders related to the custody and care of his children. The father's application to set aside Orders 1 and 2, which had been made on 15 October 2010, was contested by the mother. The dispute centred around the father's attempt to introduce evidence from two family reports and the reasons for a previous judgment, which the mother opposed on the basis of relevance and procedural fairness.

The primary legal issues before the court were whether the father could introduce the family reports and the reasons for judgment as evidence in the current proceeding. The court had to consider the admissibility of the documents under the rules of evidence, and whether the father's procedural approach was appropriate and fair to the mother. Additionally, the court needed to determine whether the evidence could be admitted under the conditions proposed by the father, such as calling the family consultant to give oral evidence.

The court found that the father could tender the family reports into evidence, but only if he called the family consultant to give oral evidence and provided a transcript of the consultant's previous oral evidence to the mother. This was to ensure that the mother had adequate opportunity to cross-examine the consultant and to maintain fairness in the proceedings. The court also allowed the reasons for judgment to be tendered as evidence, as it was relevant to the case. The father's costs of the hearing were reserved for later determination.

The court dismissed the application to vacate the earlier orders and permitted the father to introduce the specified evidence under the conditions outlined in the orders. This decision ensured that the proceedings remained fair and that the evidence could be properly evaluated by the court.

Orders

Orders of the court

The Application to vacate Orders 1 and 2 made on 15 October 2010 is dismissed.

The Father is permitted to tender into evidence in this proceeding copies of Family Reports prepared on 14 July 2008 and 7 May 2009 by Family Consultant Ms M on condition that:

(a) the Father calls the said Family Consultant to give oral evidence in this proceeding; and

(b) the Father provides to the Mother’s solicitors at his expense a copy of the Transcript of the oral evidence given by the said Family Consultant at the hearing on 12 and 13 May 2009 no later than five (5) working days prior to the date on which the Family consultant gives oral evidence as set out in Order (2)(a) above.

The Father is permitted to tender into evidence the Reasons for Judgment delivered by Altobelli FM on 25 June 2009.

Applicant’s costs of today are reserved.

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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