Calhoun and Fortescue - [2006] FMCAfam 511

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CALHOUN & FORTESCUE

[2006] FMCAfam 511

FAMILY LAW – Children – interim parenting arrangements.

Family Law Act 1975 (Cth)

Cowling (1998) FLC 92-801
Sillars (1986) FLC 91-756

Applicant:

MS CALHOUN

Respondent:

MR FORTESCUE

File number:

MLM 7875 of 2006

Judgment of:

Walters FM

Hearing date:

18 September 2006

Date of last submission:

18 September 2006

Delivered at:

Melbourne

Delivered on:

18 September 2006

REPRESENTATION

Counsel for the Applicant:

Ms B A Tulloch

Solicitors for the Applicant:

Rowe Lawyers

Counsel for the Respondent:

Mr K F Nicholson

Solicitors for the Respondent:

Whyte Just & Moore

ORDERS

Pursuant to s.68L(2) of the Family Law Act 1975, the interests of the children [X] born in 1997 and [Y] born in 2004 be independently represented by a lawyer AND IT IS REQUESTED that Victoria Legal Aid arrange such independent representation.
Forthwith upon appointment by the said Victoria Legal Aid or otherwise the Independent Children’s Lawyer do file a Notice of Address for Service.
Within 48 hours of notification of such appointment the solicitors for the respective parties do provide to the Independent Children’s Lawyer copies of all relevant documents relied upon.
Pursuant to s.62G(2) of the Family Law Act1975, the parties and the said children attend upon a Family Consultant (“the Family Consultant”) nominated by the Dispute Resolution Coordinator of the Federal Magistrates Court of Australia, for the purposes of the preparation of a Family Report to be given to the Court prior to

15 December 2006, such Family Report to deal with the following matters:
(a)any views expressed by the said children and any factors (such as the said children’s maturity or level of understanding) that would affect the weight that the court should place on those views);
(b)the matters set out in ss.60CC, 61DA and 65DA of the Family Law Act 1975; and
(c)any other matters that the Family Consultant considers important to the welfare of best interests of the said children.
The parties do comply with all reasonable directions as to attendance upon the Consultant as and when required by the Consultant.
Within 7 days of being notified of the Consultant, the solicitor for each of the parties do deliver or cause to be delivered to the Consultant copies of the following documents:
(a)all relevant applications and responses filed by or on behalf of his/her client in the within proceedings;
(b)all relevant affidavits filed by or on behalf of his/her client in the within proceedings; and
(c)any intervention or restraining orders currently in force.
If a party is not represented by a solicitor, then within 7 days of being notified of the Consultant that party do deliver or cause to be delivered to the Consultant copies of the following documents:
(a)all relevant applications and responses filed by him/her, or filed on his/her behalf, in the within proceedings;
(b)all relevant affidavits filed by him/her, or filed on his/her behalf, in the within proceedings; and
(c)any intervention or restraining orders currently in force.
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 Calhoun and Fortescue

Details

AGLC: Calhoun and Fortescue [2006] FMCAfam 511
Case: [2006] FMCAfam 511
Decision Date: 18 September 2006

CaseChat Overview and Summary

The case of Calhoun and Fortescue was heard before the Federal Magistrates Court of Australia, where the primary dispute centered around the welfare and best interests of the two minor children, [X] born in 1997 and [Y] born in 2004, following the separation of their parents. Both parties sought to ensure that the children's voices were heard and their needs met in the proceedings, which involved various applications and motions regarding custody, access, and other related issues.

The court was tasked with several legal considerations, primarily under the Family Law Act 1975. The first issue was whether the children should be independently represented by a lawyer to ensure their interests were properly safeguarded. Another significant matter was the preparation of a Family Report by a Family Consultant, which would detail the children's views and other relevant factors affecting their welfare. The court also needed to address procedural matters such as document disclosure and compliance with court-appointed timelines.

In its reasoning, the court recognised the importance of the children's independent representation, as provided for in section 68L(2) of the Family Law Act 1975. It ordered that the interests of the children be represented by a lawyer appointed by Victoria Legal Aid. The court further mandated that a Family Consultant be engaged to prepare a comprehensive Family Report, which would include the children's views and other pertinent factors, in line with sections 60CC, 61DA, and 65DA of the Act. The court emphasised the necessity of timely document disclosure and compliance with the Consultant's requirements. Ultimately, the court set a date for the final hearing, ensuring that all parties and their legal representatives were adequately prepared.

Orders

Orders of the court

Pursuant to s.68L(2) of the Family Law Act 1975, the interests of the children [X] born in 1997 and [Y] born in 2004 be independently represented by a lawyer AND IT IS REQUESTED that Victoria Legal Aid arrange such independent representation.

Forthwith upon appointment by the said Victoria Legal Aid or otherwise the Independent Children’s Lawyer do file a Notice of Address for Service.

Within 48 hours of notification of such appointment the solicitors for the respective parties do provide to the Independent Children’s Lawyer copies of all relevant documents relied upon.

Pursuant to s.62G(2) of the Family Law Act 1975, the parties and the said children attend upon a Family Consultant (“the Family Consultant”) nominated by the Dispute Resolution Coordinator of the Federal Magistrates Court of Australia, for the purposes of the preparation of a Family Report to be given to the Court prior to

15 December 2006, such Family Report to deal with the following matters:

(a) any views expressed by the said children and any factors (such as the said children’s maturity or level of understanding) that would affect the weight that the court should place on those views);

(b) the matters set out in ss.60CC, 61DA and 65DA of the Family Law Act 1975; and

(c) any other matters that the Family Consultant considers important to the welfare of best interests of the said children.

The parties do comply with all reasonable directions as to attendance upon the Consultant as and when required by the Consultant.

Within 7 days of being notified of the Consultant, the solicitor for each of the parties do deliver or cause to be delivered to the Consultant copies of the following documents:

(a) all relevant applications and responses filed by or on behalf of his/her client in the within proceedings;

(b) all relevant affidavits filed by or on behalf of his/her client in the within proceedings; and

If a party is not represented by a solicitor, then within 7 days of being notified of the Consultant that party do deliver or cause to be delivered to the Consultant copies of the following documents:

(a) all relevant applications and responses filed by him/her, or filed on his/her behalf, in the within proceedings;

(b) all relevant affidavits filed by him/her, or filed on his/her behalf, in the within proceedings; and

The matter be adjourned to 22 February 2007 at 10.00 a.m. for final hearing (with an estimated hearing time of 2 days).

In the event of any applicable filing, setting down, mediation or enforcement fee or fees (“the Fees”) not having been waived, the party responsible for the payment of the Fees or any of them do pay or cause to be paid such of the Fees as shall be payable by that party in accordance with, and within the time specified in, the

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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