Darley and Darley (No. 2) - [2017] FamCA 791

FAMILY COURT OF AUSTRALIA

DARLEY & DARLEY (NO. 2)

[2017] FamCA 791

FAMILY LAW – CHILDREN – Family consultants – Application for replacement of the Family Report Writer – Where the mother seeks an order that the Family Consultant be replaced – Where the mother challenges the expertise and qualifications of the Family Consultant to deal with matters of family and domestic violence – Application dismissed.

FAMILY LAW – PRACTICE AND PROCEDURE – Application for discharge of Independent Children’s Lawyer – Where the mother seeks an order that the Independent Children’s Lawyer be discharged – Application dismissed.

Family Law Act 1975 (Cth)

Knibbs & Knibbs [2009] FamCA 840

APPLICANT:

Mr Darley

RESPONDENT:

Ms Darley

INDEPENDENT CHILDREN’S LAWYER:

Norman & Kingston

FILE NUMBER:

BRC

2317

2013

DATE DELIVERED:

29 September 2017

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Hogan J

HEARING DATE:

29 September 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

In person

SOLICITOR FOR THE RESPONDENT:

In person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Kingston, Norman & Kingston

Orders

IT IS ORDERED THAT

The Application in a Case filed on 30 March 2016 by the Applicant is dismissed.
The Amended Application in a Case filed 7 August 2017 by the Respondent is dismissed.
The Application in a Case filed on 10 August 2017 by the Respondent is dismissed.

AND IT IS FURTHER ORDERED THAT

The time for compliance with Clauses 4, 5 and 6 of the Order made on 6 July 2017 by Registrar Coutts is extended to 4.00 pm on 10 October 2017.
The time for compliance with Clause 9 of the Order made on 6 July 2017 by Registrar Coutts is extended to 4.00 pm on 13 October 2017.
The time for compliance with Clause 10 of the Order made on 6 July 2017 by Registrar Coutts is extended to 4.00 pm on 16 October 2017.
The time for compliance with Clauses 14, 16, 17 and 18 of the Order made on 6 July 2017 by Registrar Coutts is extended to 4.00 pm on 10 October 2017.
The time for compliance with Clause 19 of the Order made on 6 July 2017 by Registrar Coutts is extended to 4.00 pm on 13 October 2017.

AND IT IS FURTHER ORDERED THAT

The Application in a Case filed on 10 April 2016 by the Respondent is adjourned to the first day of the final hearing on 17 October 2017.
The Application in a Case filed on 12 May 2016 by the Respondent is adjourned to the first day of the final hearing on 17 October 2017.
The Amended Application in a Case filed 28 September 2017 by the Respondent is dismissed.

AND IT IS FURTHER ORDERED THAT

In the event that Mr H has not provided his notes by way of Annexure to his affidavit, then Mr H is to provide a copy of his notes to the Court by 10.00 am on first morning of the trial, 17 October 2017.

NOTATION

(A)The Application in a Case filed…

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 Darley and Darley (No. 2)

Details

AGLC: Darley and Darley (No. 2) [2017] FamCA 791
Case: [2017] FamCA 791
Decision Date: 29 September 2017

CaseChat Overview and Summary

In the matter of *Darley and Darley (No. 2)*, Hogan J of the Family Court of Australia considered applications made by the mother concerning the appointment of a family consultant and the discharge of an Independent Children’s Lawyer. The mother sought to replace the family consultant, challenging their expertise and qualifications to address matters of family and domestic violence, and also sought the discharge of the Independent Children’s Lawyer.

The court was required to determine whether the applications to replace the family consultant and discharge the Independent Children’s Lawyer should be granted. The court also had to consider several other applications filed by the parties, including applications for adjournment and dismissal, and to make orders regarding the compliance with previous directions.

Hogan J dismissed the mother's applications to replace the family consultant and discharge the Independent Children’s Lawyer. The court also dismissed several other applications filed by the parties. However, the court extended the time for compliance with specific clauses of an order made on 6 July 2017 by Registrar Coutts, and adjourned two of the respondent's applications to the first day of the final hearing. The court also made a specific order regarding the provision of notes by Mr H. Additionally, the court provided the parties with an explanation of court processes and procedures, and issued directions regarding communication with chambers and the conduct of witnesses giving evidence by telephone.

Orders

Orders of the court

IT IS ORDERED THAT

The Application in a Case filed on 30 March 2016 by the Applicant is dismissed.

The Amended Application in a Case filed 7 August 2017 by the Respondent is dismissed.

The Application in a Case filed on 10 August 2017 by the Respondent is dismissed.

AND IT IS FURTHER ORDERED THAT

The time for compliance with Clauses 4, 5 and 6 of the Order made on 6 July 2017 by Registrar Coutts is extended to 4.00 pm on 10 October 2017.

The time for compliance with Clause 9 of the Order made on 6 July 2017 by Registrar Coutts is extended to 4.00 pm on 13 October 2017.

The time for compliance with Clause 10 of the Order made on 6 July 2017 by Registrar Coutts is extended to 4.00 pm on 16 October 2017.

The time for compliance with Clauses 14, 16, 17 and 18 of the Order made on 6 July 2017 by Registrar Coutts is extended to 4.00 pm on 10 October 2017.

The time for compliance with Clause 19 of the Order made on 6 July 2017 by Registrar Coutts is extended to 4.00 pm on 13 October 2017.

AND IT IS FURTHER ORDERED THAT

The Application in a Case filed on 10 April 2016 by the Respondent is adjourned to the first day of the final hearing on 17 October 2017.

10.

The Application in a Case filed on 12 May 2016 by the Respondent is adjourned to the first day of the final hearing on 17 October 2017.

11.

The Amended Application in a Case filed 28 September 2017 by the Respondent is dismissed.

AND IT IS FURTHER ORDERED THAT

12.

In the event that Mr H has not provided his notes by way of Annexure to his affidavit, then Mr H is to provide a copy of his notes to the Court by 10.00 am on first morning of the trial, 17 October 2017.

NOTATION

(A) The Application in a Case filed 30 March 2017 is dismissed on the basis that subsequent Orders were made by Forrest J that dealt with the substance of that Application.

(B) The Amended Application in a Case filed 7 August 2017 and the Application in a Case filed 10 August 2017 were dismissed on the basis that the Orders made today dealt with the relief sought.

AND IT IS FURTHER NOTED THAT

(C) The Court today provided the Applicant and Respondent with an explanation about process and procedure in discharge of the obligations imposed by Re F: Litigants in Person Guidelines (2001) FLC 93-072.

(D) It is inappropriate to communicate directly with Chambers other than in exceptional circumstances and any such necessary and exceptional communication must be with the consent of all parties and contemporaneously copied to all parties.

(E) All communications, unless otherwise directed, should be via the Registry to … to the attention of the case manager or to the National Enquiry Centre on ...

(F) In the event that a witness is required for cross-examination and leave is given for that witness to be cross-examined by telephone, the party calling that witness shall notify the Case Co-ordinator of the telephone number to be used to contact that person.

(G) Such leave for a witness to attend by telephone is conditional upon each witness being informed that they are:

(a) to be in a private place when they are called to give evidence; and

(b) to have with them a copy of their affidavit/s or report/s; and

to have available to them a method by which they can receive, electronically, any documentation that any party may wish them to be shown during the course of cross-examination.

(H) The Court today advised the parties of the importance of complying with the trial directions made on 6 July 2017.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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