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 |
| 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 temporereasons 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…
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- Daniels and Barber (No.2) [2017] FCCA 457
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- [2017] FCCA 457
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CaseChat Overview and Summary
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
1.
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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