Daniels and Barber (No.2) - [2017] FCCA 457

FEDERAL CIRCUIT COURT OF AUSTRALIA

DANIELS & BARBER (No.2)

[2017] FCCA 457

Catchwords:
FAMILY LAW – Parenting – reconstitution of court allegedly for the purpose of “clarifying” an aspect of a ruling made the day earlier – in reality, the reconstitution was called by the wife so that she could advocate equal time, a point not pressed on the earlier hearing – whether such an approach was disingenuous – orders made the day earlier confirmed – proceeding transferred to the Family Court of Australia.

Legislation:

Family Law Act 1975 (Cth), s.60CC

Federal Circuit Court Rules 2001 (Cth), r.16

Cases cited:

Banks & Banks (2015) FLC 93–637
Carlson & Carlson [2016] FamCAFC 196
Daniels & Barber [2016] FCCA 454
Stone & Clifford (No.2) [2016] FCCA 3311

Applicant:

MS DANIELS

Respondent:

MR BARBER

File Number:

MLC 11303 of 2016

Judgment of:

Judge Wilson

Hearing date:

17 February 2017

Date of Last Submission:

17 February 2017

Delivered at:

Melbourne

Delivered on:

20 March 2017

REPRESENTATION

Counsel for the Applicant:

Mr P O’Shannessy

Solicitors for the Applicant:

Mills Oakley Lawyers

Counsel for the Respondent:

Mr J Salamanca

Solicitors for the Respondent:

Kennedy Partners

ORDERS

The orders made on 16 February 2017 remain in full force and effect.

IT IS NOTED that publication of this judgment under the pseudonym Daniels & Barber (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 11303 of 2016

MS DANIELS

Applicant

And

MR BARBER

Respondent

REASONS FOR JUDGMENT

Following a half day’s debate on 16 February 2017 I delivered

ex tempore
reasons for judgment in relation to the single issue on which the parties asked me rule, namely, whether the living arrangements for the children as proposed by the respondent husband Mr Barber (“the husband”) or those as proposed by the applicant wife Ms Daniels (“the applicant wife”) should be ordered.
In the course of ruling in favour of the husband I referred to passages of transcript that had previously indicated to me, and which were a substantial ground pressed by Mr Salamanca of counsel for the husband, that the s.11F consultant, Dr D, favoured the children having equal time with each parent. Elsewhere in the transcript, Dr D expressed a preference for the husband having more time with the children than the wife.
My ex tempore reasons, delivered at 4.15 p.m. on 16 February 2017, were reported at [2017] FCCA 454.
In response to an urgent request for me to reconvene, made by Mr P O’Shannessy of counsel for the wife, at around 1.00 p.m. on 17 February 2017 I reconstituted the court at 2.15 p.m. on that day to hear what I was told was an urgent application. Before going to the matter Mr O’Shannessy raised, let me address a point that logically must be canvassed earlier in time than the substantive matter the wife wanted to ventilate.
The orders pronounced on 16 February 2017 had the effect of implementing the parenting regime…

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 Daniels and Barber (No.2)

Details

AGLC: Daniels and Barber (No.2) [2017] FCCA 457
Case: [2017] FCCA 457
Decision Date: 20 March 2017

CaseChat Overview and Summary

In the matter of *Daniels and Barber (No.2)*, heard before Judge Wilson, the dispute concerned the ongoing enforceability of orders previously made on 16 February 2017. The precise nature of the original dispute that led to those orders is not detailed in the provided text, but the present proceedings focused on whether those existing orders should continue to stand.

The central legal issue before the court was whether the orders made on 16 February 2017 should be maintained in full force and effect. This required the court to consider the circumstances and legal basis upon which those initial orders were granted and to assess whether any subsequent developments warranted their variation or discharge.

Judge Wilson determined that the existing orders should remain in full force and effect. The reasoning behind this decision, and the specific legal principles applied to reach this conclusion, are not elaborated upon in the provided text. However, the outcome signifies that the court found no sufficient grounds to alter or set aside the previously established orders.

Consequently, the court ordered that the orders made on 16 February 2017 remain in full force and effect.

Orders

Orders of the court

The orders made on 16 February 2017 remain in full force and effect.

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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