Colombo & Richardson - [2021] FCCA 789

FEDERAL CIRCUIT COURT OF AUSTRALIA
Colombo & Richardson [2021] FCCA 789

File number: MLC 12837 of 2018

Judgment of: JUDGE O'SHANNESSY

Date of judgment: 17 March 2021

Catchwords: FAMILY LAW – Interim parenting – Rice & Asplund – rule 16.05 application – where children live with grandmother – where final orders were previously made in the absence of the mother – where mother seeking to reopen litigation – where mother seeking for previous orders to be set aside – where grandmother seeking for mother’s application to be dismissed – application permitted.

Legislation:
Family Law Act 1975 (Cth)

Federal Circuit Court Rules 2001 (Cth) r 16.05

Cases cited:
Ballan & Sandford [2018] FCCA 2436

Rice & Asplund [1978] FamCAFC 128

Number of paragraphs: 68

Date of last submissions: 17 March 2021

Date of hearing: 15 and 17 March 2021

Place: Melbourne

Counsel for the Applicant: Ms B Kildea

Solicitor for the Applicant: Faram Ritchie Davies

Counsel for the First Respondent: Mr P Testart

Solicitor for the First Respondent: Morrison & Sawers

The Second Respondent: Appeared In Person

Counsel for the Independent Children's Lawyer: Ms M McNamee

Solicitor for the Independent Children's Lawyer: Medson Legal Pty Ltd
ORDERS

MLC 12837 of 2018

BETWEEN:
MS COLOMBO

Applicant

AND:
MS RICHARDSON

First Respondent

MR WEST

Second Respondent

ORDER MADE BY:

JUDGE O'SHANNESSY

DATE OF ORDER:

17 MARCH 2021

THE COURT ORDERS THAT:
1.Pursuant to rule 16.05 of the Federal Circuit Court Rules 2001 the Applicant Mother be permitted to proceed with her application.
2.The First Respondent Grandmother's application pursuant to Rice & Asplund seeking to dismiss the Applicant Mother's application be dismissed.
3.The matter be adjourned to the Federal Circuit Court of Australia at Melbourne on 18 March 2021 at 11.00am for Mention Hearing.

AND THE COURT NOTES THAT:
A.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
B.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
C.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme ("the Scheme") for representation but any such application must be made at least 12 weeks prior to the final hearing.
D.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
E.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

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…

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 Colombo & Richardson

Details

AGLC: Colombo & Richardson [2021] FCCA 789
Case: [2021] FCCA 789
Decision Date: 17 March 2021

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, Ms. Colombo (the Applicant Mother) sought to proceed with an application against Ms. Richardson (the First Respondent Grandmother) and Mr. West (the Second Respondent Father). The dispute arose in the context of existing final orders made in 2019 concerning the parties' three children. The Maternal Grandmother had filed an application seeking to dismiss the Mother's current application.

The court was required to determine whether the Applicant Mother should be permitted to proceed with her application, and whether the First Respondent Grandmother's application to dismiss the Mother's application should be granted. The court also needed to consider the implications of potential family violence allegations and the application of specific provisions of the *Family Law Act 1975* (Cth) regarding cross-examination of parties.

Justice O'Shannessy permitted the Mother to proceed with her application, referencing rule 16.05 of the *Federal Circuit Court Rules 2001* (Cth). The court dismissed the Maternal Grandmother's application made pursuant to *Rice & Asplund* seeking to dismiss the Mother's application. The court noted that particulars of obligations and consequences of contravention of orders were set out in an annexure, and that in proceedings where family violence is alleged and section 102NA of the *Family Law Act 1975* applies, unrepresented parties may be prohibited from personally cross-examining other parties.

The matter was adjourned to the Federal Circuit Court of Australia at Melbourne for a mention hearing.

Orders

Orders of the court

MLC 12837 of 2018

BETWEEN:

MS COLOMBO

Applicant

AND:

MS RICHARDSON

First Respondent

MR WEST

Second Respondent

ORDER MADE BY:

JUDGE O'SHANNESSY

DATE OF ORDER:

17 MARCH 2021

THE COURT ORDERS THAT:

1. Pursuant to rule 16.05 of the Federal Circuit Court Rules 2001 the Applicant Mother be permitted to proceed with her application.

2. The First Respondent Grandmother's application pursuant to Rice & Asplund seeking to dismiss the Applicant Mother's application be dismissed.

3. The matter be adjourned to the Federal Circuit Court of Australia at Melbourne on 18 March 2021 at 11.00am for Mention Hearing.

AND THE COURT NOTES THAT:

A. Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

B. If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.

C. Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme ("the Scheme") for representation but any such application must be made at least 12 weeks prior to the final hearing.

D. Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.

E. If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

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.

Background

Background to the litigation

I indicated at the commencement of the ex tempore reasons that I would permit the mother to bring the application on both the rule 16.05 of the Federal Circuit Court Rules 2001 (Cth) basis and on the Rice & Asplund [1978] FamCAFC 128 (‘Rice & Asplund’) application. These are the settled reasons I delivered on the day of the hearing.BACKGROUND The applicant mother, Ms Colombo (‘the Mother’), is aged 28, and the second respondent father, Mr Richardson (‘the Father’), is 31. The Father and the Mother have three children: X, aged 10; Y, aged 8; and Z, aged 6 (‘the children’). The first respondent is Ms Richardson (‘the Maternal Grandmother’). The Maternal Grandmother is the mother of Ms Colombo, and she is aged 45. The Maternal Grandmother has other children: Mr F, who is aged 18, G, aged 11, and H, who is aged 10. The Father has re-partnered with Ms E, and Ms E has some other children, and, significantly, as I understand it, her youngest, J, is aged 9. The proceedings come before me in the context of there being final orders having been made in the Federal Circuit Court of Australia at Shepparton on 25 February 2019, and the Mother brings an initiating application filed on or around 9 October 2020. The surrounding circumstances of how those orders come to be made should be repeated. The Mother and the Father had separated at some time in 2018, although the degree of separation is difficult to identify. On the Father's account, that is, Mr West’s account, though the parties had separated, the Mother continued to seek his assistance for obtaining or injecting drugs at that time. The Maternal Grandmother in her affidavit commencing what I will call the first wave of these proceedings, filed 7 October 2018 at paragraph 8, as follows:[8]Ms Colombo and Mr West’s relationship was of an off-and-on-again nature. The relationship was characterised by family violence and drug use. Both Ms Colombo and Mr West were perpetrators of the family violence. At paragraph [11] of that affidavit, the Maternal Grandmother it was said that the Mother, has significant mental health issues that have not been diagnosed or treated. The Mother was cared for by her father as a child, and I accept that she was physically, sexually, and emotionally abused by her father. [11]I believe that Ms Colombo has significant mental health issues that have not been diagnosed or treated. Ms Colombo was cared for by her father as a child. I believe that she was physically, sexually and emotionally abused by her father. My belief arose when Ms Colombo was approximately 3 years old. She exhibited some sexualised behaviours, and I took her to see my General Practitioner. He told me that he was concerned that she had been abused. The next day her Father took her back to the GP and told her to tell the GP that I had poked her vagina with a stick. I deny that I poked Ms Colombo in the vagina and I became concerned that he was asking Ms Colombo to lie in order to hide that he was abusing her. Approximately four years ago Ms Colombo connected with services at L Centre in Town C. The counsellor at l Centre thought Ms Colombo was possible suffering from Post Traumatic Stress Disorder. She referred Ms Colombo to a psychiatrist, however Ms Colombo did not attend.

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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File number:	MLC 12837 of 2018
Judgment of:	JUDGE O'SHANNESSY
Date of judgment:	17 March 2021
Catchwords:	FAMILY LAW – Interim parenting – Rice & Asplund – rule 16.05 application – where children live with grandmother – where final orders were previously made in the absence of the mother – where mother seeking to reopen litigation – where mother seeking for previous orders to be set aside – where grandmother seeking for mother’s application to be dismissed – application permitted.
Legislation:	Family Law Act 1975 (Cth) Federal Circuit Court Rules 2001 (Cth) r 16.05
Cases cited:	Ballan & Sandford [2018] FCCA 2436 Rice & Asplund [1978] FamCAFC 128
Number of paragraphs:	68
Date of last submissions:	17 March 2021
Date of hearing:	15 and 17 March 2021
Place:	Melbourne
Counsel for the Applicant:	Ms B Kildea
Solicitor for the Applicant:	Faram Ritchie Davies
Counsel for the First Respondent:	Mr P Testart
Solicitor for the First Respondent:	Morrison & Sawers
The Second Respondent:	Appeared In Person
Counsel for the Independent Children's Lawyer:	Ms M McNamee
Solicitor for the Independent Children's Lawyer:	Medson Legal Pty Ltd

ORDER MADE BY:	JUDGE O'SHANNESSY
DATE OF ORDER:	17 MARCH 2021