Ditters and Jamieson - [2016] FamCA 752

FAMILY COURT OF AUSTRALIA

DITTERS & JAMIESON

[2016] FamCA 752

FAMILY LAW – ADJOURNMENT – where mothers Application in Case dismissed – where mother seeks an adjournment until the conclusion of the fathers criminal proceedings – where father charged with 36 offences against the mother – where these charges arise from him commencing a sexual relationship with the mother when she was under 16 – where father is the step-father of the mother – where mother suspended time with children in 2015 – where mother was concerned about the wellbeing of the children when in the fathers care – where mother relied on the likely hood of emotional trauma for cross-examination – financial stress – where mother asserts potential incarceration of the father will disrupt time children has with father – where court has a positive obligation to control and direct parenting proceedings – where resolution of criminal proceedings is not likely to substantially impact upon the outcome of the Family Court Trial

Family Law Act 1975 (Cth) ss 69ZQ, 79ZN

McMahon v Gould (1982) 1 ACLR 98
Re K Appeal (1994) FLC 92-461
Theophane and Hunt (No 3) [2011] FamCA 968

APPLICANT:

Ms Ditters

RESPONDENT:

Mr Jamieson

INDEPENDENT CHILDREN’S LAWYER:

Ms Lehmann

FILE NUMBER:

CSC

537

2015

DATE DELIVERED:

7 September 2016

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Tree J

HEARING DATE:

31 August 2016

REPRESENTATION

SOLICITORS FOR THE APPLICANT:

Hadley Family Law

SOLICITORS FOR THE RESPONDENT:

Williams Family Law & Self-Rep Centre

SOLICITORS FOR THE INDEPENDENT CHILDREN'S LAWYER:

Lehmann Featherstone

Orders

The mother’s Application in a Case filed 24 August 2016 be dismissed.
The time for filing of the parties’ material provided in orders 5 and 6 of the Orders of Tree J dated 25 July 2016 be enlarged to 4:00pm Friday 4 November 2016.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ditters & Jamieson has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: CSC537/2015

Ms Ditters

Applicant

And

Mr Jamieson

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

On 25 July 2016, with the consent of the parties, I ordered that the trial of these parenting proceedings commence on Thursday 8 December 2016 in Cairns, with an estimated hearing time of 6 days. By her Application in a Case filed 24 August 2016, the mother seeks to have that trial adjourned until the conclusion of the father’s criminal proceedings. In that respect it is not contentious that the father is presently charged with 36 offences against the mother, said to arise from him having commenced a sexual relationship with her when she was under the age of 16. The father denies any such criminal misconduct. On 31 August 2016 I dismissed the mother’s application for skeletal reasons then delivered, indicating that I would deliver more fulsome reasons in due course. These are those more fulsome reasons.

BACKGROUND FACTS

These proceedings relate to…

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 Ditters and Jamieson

Details

AGLC: Ditters and Jamieson [2016] FamCA 752
Case: [2016] FamCA 752
Decision Date: 7 September 2016

CaseChat Overview and Summary

In the matter of *Ditters and Jamieson*, heard before Tree J, the dispute concerned an application made by the mother on 24 August 2016. The precise nature of this application is not detailed, but it was subsequently dismissed by the court.

The central legal issue before the court was whether to grant the mother's application filed on 24 August 2016. In addition, the court was required to consider the timing for the filing of material by both parties, which had been previously set by orders made on 25 July 2016.

Tree J dismissed the mother's application. However, the court enlarged the time for the parties to file their respective materials, as previously ordered on 25 July 2016, to 4:00 pm on Friday, 4 November 2016.

Orders

Orders of the court

The mother’s Application in a Case filed 24 August 2016 be dismissed.

The time for filing of the parties’ material provided in orders 5 and 6 of the Orders of Tree J dated 25 July 2016 be enlarged to 4:00pm Friday 4 November 2016.

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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