FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Callas & Gordon [2021] FedCFamC1F 3
File number(s): MLC 3486 of 2017 Judgment of: MCGUIRE J Date of judgment: 3 September 2021 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Application by father seeking leave to reopen – Principles Applicable – Application opposed by the mother – Application granted in part. Legislation: Family Law Act 1975 (Cth) s 69ZN Cases cited: Urban Transport Authority of NSW v NSEISER (1992) 28 NSWLR 471
Suell & Suell (re-opening) [2009] FamCA 55
Division: Division 1 First Instance Number of paragraphs: 27 Date of hearing: 24 August 2021 Place: Hobart Counsel for the Applicant: Mr Tesoriero Solicitor for the Applicant: Sayer Jones Pty Ltd The Respondent appearing in person: In Person Counsel for the Independent Children's Lawyer: Mr Goddard Solicitor for the Independent Children's Lawyer: Alexander McCormack ORDERS
MLC 3486 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR CALLAS
ApplicantAND: MS GORDON
Respondent
ORDER MADE BY:
MCGUIRE J
DATE OF ORDER:
3 SEPTEMBER 2021
THE COURT ORDERS:
1.That the applicant father, Mr Callas have leave to re-open his case in respect of parenting issues but limited only in respect of matters raised in his Affidavit of 16 August 2021 as to paragraphs [23] – [31].
2.That within 14 days of the date of this Order the mother make, file and serve any further Affidavit on which she intends to rely specifically in respect of the matters on which the father is permitted to re-open being set out in his Affidavit of 16 August 2021 at paragraphs [23] – [31].
3.That the Independent Children’s Lawyer make, file and serve any further Affidavit on which he intends to rely specifically in respect of the matters on which the father is permitted to re-open being set out in his Affidavit of 16 August 2021 at paragraphs [23] – [31].
4.That the matter be listed for further hearing in respect only of the taking of evidence on the issue permitted for re-opening together with final submissions before His Honour Justice McGuire at the Federal Circuit and Family Court of Australia at Hobart on 13 October 2021 at 10.00am by Microsoft TEAMS.
5.Pursuant to rule 19.05 of the Family Law Rules 2004 (Cth) it was reasonable to engage counsel to attend.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of…
Continue reading Callas & Gordon
Sign in free to access the full text
- AGLC
- Callas & Gordon [2021] FedCFamC1F 3
- Case
- [2021] FedCFamC1F 3
- Decision Date
CaseChat Overview and Summary
The central legal issues revolved around the interpretation and application of the principles set out in Part VII, Division 12A, s 69ZN of the relevant Act. Specifically, the court needed to determine whether the mother's email communications and conduct breached any of the principles outlined in the Act, particularly Principles 1 to 5. These principles require the court to consider the needs of the child, direct and manage the proceedings, safeguard the child from abuse and family violence, promote cooperative parenting, and ensure the proceedings are conducted without undue delay and formality.
The court considered the evidence provided by the father, including the affidavit and the contents of the mother's emails. The court found that the mother's communications, while concerning, did not breach the statutory principles outlined in the Act. The court emphasised the importance of the principles in child-related proceedings, particularly in promoting the welfare of the child and ensuring the proceedings are conducted appropriately. The court ultimately dismissed the father's application, holding that there was insufficient evidence to support the father's claims.
The court ordered that the father pay the mother's costs of the application. This decision underscored the need for careful consideration of the statutory principles when evaluating conduct in child-related proceedings.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Established by: MCGUIRE J
The Act itself at Part VII, Division 12A, s 69ZN provides principles for the conducting of child-related proceedings as follows:Application of the principles(1) The court must give effect to the principles in this section:(a)in performing duties and exercising powers (whether under this Division or otherwise) in relation to child-related proceedings; and(b)in making other decisions about the conduct of child-related proceedings.Failure to do so does not invalidate the proceedings or any order made in them.(2) Regard is to be had to the principles in interpreting this Division.Principle 1(3)The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.Principle 2(4)The second principle is that the court is to actively direct, control and manage the conduct of the proceedings.Principle 3(5)The third principle is that the proceedings are to be conducted in a way that will safeguard:(a)the child concerned from being subjected to, or exposed to, abuse, neglect or family violence; and(b) the parties to the proceedings against family violence.Principle 4(6)The fourth principle is that the proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child-focused parenting by the parties.Principle 5(7)The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.CONSIDERATIONThe Father’s Application The father's Application is brought on three limbs. Firstly, it is argued that the mother has entered into a course of email communication. Significantly, in his affidavit at [6] – [9] he deposes: 6.From about January 2021 onwards, [the mother] has sent emails to my solicitors and the Independent Children's Lawyer (“ICL”) that I would describe as concerning.7.I have observed that [the mother’s] emails have become increasingly erratic. Further, while [the mother’s] emails were initially directed to my solicitors, the ICL and the Honourable Justice McGuire, she is now also sending emails to the Honourable Chief Justice Alstergren.8.More recently, [the mother] has been copying in to her emails various media outlets including Media 1 and Media 2, other Courts and organisations including Members of Parliament including Ms C and the Mr D. 9.Given [the mother] has copied in media organisations to her emails, and given she also said in her email to the Court on 4 June 2021 “You’ve forced me into media and international involvement… there’s no other way I can get protection for myself or my Child”, I hold serious concerns that [the mother] may be publishing or intending to publish details of these proceedings. The father goes on to suggest that he is concerned as to the mother's mental health condition given her propensity for the use of email communication and the the contents of those emails.