Coleman and Hindle and Anor - [2009] FamCA 361

FAMILY COURT OF AUSTRALIA

COLEMAN & HINDLE AND ANOR

[2009] FamCA 361

FAMILY LAW – COURTS AND JUDGES – Jurisdiction – Disqualification
FAMILY LAW – INDEPENDENT CHILDREN’S LAWYER – Disqualification

Family Law Act 1975 (Cth)

APPLICANT:

Mrs Coleman

FIRST RESPONDENT:	Ms Hindle
SECOND RESPONDENT:	Mr Hindle

INDEPENDENT CHILDREN’S LAWYER:

Mr Carter

FILE NUMBER:

BRC

5431

2008

DATE DELIVERED:

29 April 2009

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Murphy J

HEARING DATE:

29 April 2009

REPRESENTATION

APPLICANT:

Applicant appears on her own behalf

SOLICITOR FOR THE FIRST RESPONDENT:

Ms Hewitt

SECOND RESPONDENT:

Second Respondent appears on his own behalf

INDEPENDENT CHILDREN’S LAWYER

Mr Carter

COUNSEL FOR THE DEPARTMENT OF CHILD SAFETY

Mr Selfridge

SOLICITOR FOR THE DEPARTMENT OF CHILD SAFETY

Ms Day

Orders

IT IS ORDERED THAT

The Application in a Case filed by the Applicant on 28 April 2009 is dismissed.
The Application in a Case filed by the Applicant on 30 March 2009 is dismissed.
The application for costs made by the Independent Children's Lawyer in respect of the application filed on 28 April 2009 which was reserved to the hearing of the application filed on 30 March 2009 is reserved to the final hearing.

IT IS FURTHER ORDERED THAT

The matter be adjourned to the Magellan Directions List before Justice Murphy at 10.00am on 17 July 2009 in the Brisbane Registry of the Family Court of Australia.
The Maternal Grandmother Mrs Coleman, shall attend upon Mr M, Society Worker on 2^nd or 3^rd June 2009 at the time and place nominated by the Independent Children's Lawyer.
For the purpose of completing the Family Report Mr M has permission to inspect the Court file and all documents related to this matter.
Mr M has leave to read any document produced on subpoena once permission to inspect has been granted to a party or the Independent Children's Lawyer.
The parties shall do all such things, sign all such documents, and attend all such appointments as are reasonably necessary for the preparation of the Family Report.

NOTATION:

In the event that the maternal grandmother does not attend any interview times and dates so arranged with Mr M, then the interviews and report can proceed in her absence.
All such interviews and report process generally are to take specific account of paragraph 1(c) (ii and iii) of the orders made by Justice Murphy on 17 March 2009.
It is expected that at the hearing on 17 July 2009, all parties will provide in writing such orders as they consider appropriate, to have this matter ready for final hearing at the earliest opportunity.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC5431 of 2008

MRS COLEMAN

Applicant Maternal Grandmother

And

MS HINDLE

First Respondent Mother

And

MR HINDLE

Second Respondent Father

EX TEMPORE
REASONS FOR JUDGMENT

On 21 October 2002 orders…

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: [2009] FamCA 361
Decision Date: 29 April 2009

CaseChat Overview and Summary

In the Family Court of Australia, Justice Murphy considered applications filed by an applicant on 28 April 2009 and 30 March 2009. The proceedings involved Mrs Coleman, the maternal grandmother, and other parties, with an Independent Children's Lawyer appointed to represent the interests of the children. The core of the dispute, as evidenced by the orders made, concerned arrangements for the children and the preparation of a Family Report.

The court was required to determine the disposition of the applications filed by the applicant and to make directions regarding the ongoing proceedings, including the preparation of a Family Report. Further issues arose concerning the attendance of the maternal grandmother at interviews with a society worker and the process for inspecting court documents. The court also needed to ensure the matter was progressing towards a final hearing.

Justice Murphy dismissed the applications filed on 28 April 2009 and 30 March 2009. The court made detailed orders for the preparation of a Family Report, including requiring the maternal grandmother to attend interviews with a society worker, Mr M, and granting Mr M permission to inspect court documents. The orders also stipulated that the report could proceed in the grandmother's absence if she failed to attend interviews. The matter was adjourned for further directions, with parties expected to propose orders to facilitate an early final hearing.

Orders

Orders of the court

IT IS ORDERED THAT

The Application in a Case filed by the Applicant on 28 April 2009 is dismissed.

The Application in a Case filed by the Applicant on 30 March 2009 is dismissed.

The application for costs made by the Independent Children's Lawyer in respect of the application filed on 28 April 2009 which was reserved to the hearing of the application filed on 30 March 2009 is reserved to the final hearing.

IT IS FURTHER ORDERED THAT

The matter be adjourned to the Magellan Directions List before Justice Murphy at 10.00am on 17 July 2009 in the Brisbane Registry of the Family Court of Australia.

The Maternal Grandmother Mrs Coleman, shall attend upon Mr M, Society Worker on 2nd or 3rd June 2009 at the time and place nominated by the Independent Children's Lawyer.

For the purpose of completing the Family Report Mr M has permission to inspect the Court file and all documents related to this matter.

Mr M has leave to read any document produced on subpoena once permission to inspect has been granted to a party or the Independent Children's Lawyer.

The parties shall do all such things, sign all such documents, and attend all such appointments as are reasonably necessary for the preparation of the Family Report.

NOTATION:

In the event that the maternal grandmother does not attend any interview times and dates so arranged with Mr M, then the interviews and report can proceed in her absence.

All such interviews and report process generally are to take specific account of paragraph 1(c) (ii and iii) of the orders made by Justice Murphy on 17 March 2009.

It is expected that at the hearing on 17 July 2009, all parties will provide in writing such orders as they consider appropriate, to have this matter ready for final hearing at the earliest opportunity.

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

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