Diani and Diani - [2016] FCCA 607

FEDERAL CIRCUIT COURT OF AUSTRALIA

DIANI & DIANI

[2016] FCCA 607

Catchwords:
FAMILY LAW – Rice and Asplund argument – determined as preliminary issue – final consent orders made in March 2015 on the first day of the final hearing – mother seeking to challenge expert evidence available at the hearing when final consent orders were made.

Legislation:

Family Law Act 1975, s.69ZN

Rice & Asplund (1979) FLC 90-725
SPS & PLS [2008] FamCAFC 16
Marsden & Winch [2009] FamCAFC 152
D and Y (1995) FLC 92 – 581
DL and W [2012] FamCAFC
Zabaneh & Zabaneh [1986] FamCA 18
Meyer & Shipton [2013] FCCA 307
Miller & Harrington (2008) FLC 93-383
McEnearney v McEnearney (1980) FLC 90-866
Darley & Darley [2016] FamCAFC 10

Tomasevic v Entwisle (General) [2010] VCAT 327

Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305

Applicant:

MS DIANI

Respondent:

MR DIANI

File Number:

MLC 5627 of 2007

Judgment of:

Judge Harland

Hearing date:

9 February 2016

Date of Last Submission:

9 February 2016

Delivered at:

Dandenong

Delivered on:

22 March 2016

REPRESENTATION

The Applicant:

Appeared in person

The Respondent:

Appeared in person

ORDERS

The initiating application filed on 7 October 2015 is dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 5627 of 2007

MS DIANI

Applicant

And

MR DIANI

Respondent

REASONS FOR JUDGMENT

The parties are the parents of X, born (omitted) 2001 and Y born (omitted) 2004. The parties have been in and out of courts for years. X is 14 years old. Y is 11 years old. Their parents first started litigating in 2007 when they were just 6 and 3 years old respectively.
The parties entered into final consent orders resolving parenting orders between them on 18 March 2015. The case was listed for final hearing on that day. The father did not have legal representation. The mother was represented by Ms Baczynski of counsel who frequently appears in this Court. The Independent Children’s Lawyer (“ICL”) also briefed counsel. The orders are reproduced in full at annexure A.
The mother filed an initiating application on 7 October 2015. She sought detailed interim and final orders. Those orders seek to significantly change the living arrangements for the children. The mother seeks to reverse the living arrangements which were put in place on 13 February 2015. On that date Judge Burchardt made orders after a contested interim hearing which provided for the children to live with their father and that the mother’s time be reserved pending further order. Up until that date the children lived with their mother. Various other orders were made on that date including an order for an updated report from Dr (omitted), psychiatrist, and an updated family report from Mr N, Family Consultant. It is relevant to highlight that these were live issues for the final hearing which was listed some 6…

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 Diani and Diani

Details

AGLC: Diani and Diani [2016] FCCA 607
Case: [2016] FCCA 607
Decision Date: 22 March 2016

CaseChat Overview and Summary

In the matter of *Diani and Diani*, the Family Court of Australia, presided over by Judge Harland, considered an application filed on 7 October 2015. The precise nature of the dispute between the parties, identified as Diani and Diani, is not detailed in the provided text, nor are the specific grounds upon which the application was made.

The central legal issue before the Court was whether the initiating application, filed on 7 October 2015, should be dismissed. The provided text does not elaborate on the specific legal tests or criteria that Judge Harland was required to apply in reaching this determination.

Judge Harland ordered that the initiating application filed on 7 October 2015 be dismissed. No further details regarding the Court's reasoning or the legal principles applied in reaching this outcome are available from the provided text.

Orders

Orders of the court

The initiating application filed on 7 October 2015 is dismissed.

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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