FAMILY COURT OF AUSTRALIA
Donalds & Donalds (first day) [2021] FamCA 521
File number(s): MLC 11505 of 2020 Judgment of: BENNETT J Date of judgment: 15 July 2021 Catchwords: FAMILY LAW – PARENTING – first day of trial – young children – parties reside 1,000 km apart – mother resists returning children to Melbourne - possible need for a split face to face hearing between Melbourne and Newcastle in order to do justice to the case. Legislation: Family Law Act 1975 (Cth) Cases cited: Knibbs & Knibbs[2009] FamCA 840
Lloyd & Lloyd and Child Representative (2000) FLC 93-045
Number of paragraphs: 75 Date of hearing: 15 July 2021 Place: Melbourne Solicitor for the Applicant: Joseph David Lawyers Solicitor for the Respondent: Ms Donalds In person Counsel for the Independent Children's Lawyer: Mr Turner Solicitor for the Independent Children's Lawyer: Nicholes Family Lawyers ORDERS
MLC 11505 of 2020 BETWEEN: MR DONALDS
Applicant
AND: MS DONALDS
Respondent
AND: INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
BENNETT J
DATE OF ORDER:
15 JULY 2021
THE COURT ORDERS THAT:
IT IS DIRECTED THAT:
1.The Independent Children's Lawyer be responsible for serving a copy of this Order on Victoria Legal Aid requesting an immediate assignment of the matter to the mother’s section 102NA lawyer for the purpose of these proceedings.
IT IS ORDERED THAT:
2.Within 7 days the mother communicate in writing to the independent children's lawyer and the solicitor for the applicant father the names of the witnesses who she proposes to call in support of her case at the final hearing and whether any of those witnesses will be confined to the evidence which has already been filed and served on her behalf and if so the details on affidavit for which she intends to rely.
3.This matter be set down for final hearing before me to commence on 24 August 2021 at 10.00 am.
4.The matter be adjourned for further directions before me on 27 July 2021 at 9am.
5.Pending the final hearing commencing on 24 August 2021, paragraph 2 of the Order made by Judge Carter on 21 December 2020 be stayed for so long as the mother’s notice of appeal filed 7 July 2021 remains pending and not determined by the Full Court of this Court.
6.Until further order each parent be at liberty to record the communication between the father and the children X born … 2019 and Y born … 2021 (“the children”), or either of them, provided that the parent who records any communication record the entire communication in that session and both parents should be in a position to produce for inspection by all other parties to the proceedings all of the recordings which he or she has taken of communication between father and the children pursuant to orders made 21 December 2020.
7.The mother’s application for removal of the Independent Children's Lawyer be and is hereby dismissed.
8.The interim defended hearing before Senior Registrar Hoult on 30 July 2021 be and is hereby vacated.
9.Pursuant…
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CaseChat Overview and Summary
The primary legal issue before the court was how to best manage the proceedings and ensure the children's welfare, given the geographical distance between the parents and the mother's reluctance to relocate the children. This included determining the appropriate procedural steps for the final hearing and addressing interim arrangements for communication and the role of the Independent Children's Lawyer.
The court made several directions and orders to facilitate the progression of the case. These included directing the Independent Children's Lawyer to arrange for Victoria Legal Aid to assign a lawyer to the mother, requiring the mother to provide a list of her proposed witnesses and the nature of their evidence, and setting a final hearing date. Crucially, the court stayed a prior order concerning the children pending the determination of the mother's notice of appeal. The court also permitted both parents to record communications between the father and the children, subject to specific conditions regarding the recording and production of such recordings. The mother's application to remove the Independent Children's Lawyer was dismissed, and an interim defended hearing was vacated. The court also attached a Fact Sheet detailing the obligations and consequences of contravening the orders.
Orders
Orders of the court
THE COURT ORDERS THAT:
IT IS DIRECTED THAT:
1. The Independent Children's Lawyer be responsible for serving a copy of this Order on Victoria Legal Aid requesting an immediate assignment of the matter to the mother’s section 102NA lawyer for the purpose of these proceedings.
IT IS ORDERED THAT:
2. Within 7 days the mother communicate in writing to the independent children's lawyer and the solicitor for the applicant father the names of the witnesses who she proposes to call in support of her case at the final hearing and whether any of those witnesses will be confined to the evidence which has already been filed and served on her behalf and if so the details on affidavit for which she intends to rely.
3. This matter be set down for final hearing before me to commence on 24 August 2021 at 10.00 am.
4. The matter be adjourned for further directions before me on 27 July 2021 at 9am.
5. Pending the final hearing commencing on 24 August 2021, paragraph 2 of the Order made by Judge Carter on 21 December 2020 be stayed for so long as the mother’s notice of appeal filed 7 July 2021 remains pending and not determined by the Full Court of this Court.
6. Until further order each parent be at liberty to record the communication between the father and the children X born … 2019 and Y born … 2021 (“the children”), or either of them, provided that the parent who records any communication record the entire communication in that session and both parents should be in a position to produce for inspection by all other parties to the proceedings all of the recordings which he or she has taken of communication between father and the children pursuant to orders made 21 December 2020.
7. The mother’s application for removal of the Independent Children's Lawyer be and is hereby dismissed.
8. The interim defended hearing before Senior Registrar Hoult on 30 July 2021 be and is hereby vacated.
9. Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
IT IS DIRECTED THAT:
10. My reasons for decision this day be transcribed and when settled placed on the Court file and a copy provided to the parties.
11. My Associate distribute the document “FCoA FCC Practitioner and Litigant Guide to Virtual Hearings and Microsoft Teams” to the parties in relation to the protocols of appearing by video link.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Donalds & Donalds has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
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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