DREW & JENSEN - [2017] FCCA 656

FEDERAL CIRCUIT COURT OF AUSTRALIA

DREW & JENSEN

[2017] FCCA 656

Catchwords:
FAMILY LAW – Interim parenting – where ex parte recovery order obtained in Local Court – circumstances when ex parte recovery orders should be ordered – duty on lawyer in ex parte proceedings – duty on lawyers for applicants for recovery – duty of disclosure on applicant for recovery – where father’s evidence in support of recovery is less than frank – where father’s own evidence as well as independent material raises serious concerns about family violence – where children should live with mother and spend time with father.

Legislation:

Family Law Act 1975, ss.4AB, 60B, 60CA, 60CC, 61DA, 65DAA, 67Q 67R, 67S, 67V, 67X

Federal Circuit Court Rules 2001, r.5.03

Cases cited:

Eaby & Speelman (2015) FLC 93-654

Goode & Goode [2006] FamCA 1346
Kennedy & Kennedy (1993) FLC 92-409
Mobasser & Nankervis (1983) FLC 91-335

MRR v GR [2010] HCA 4

Myrtle & Myrtle [2012] FamCA 460
Rainer & Rainer (1982) FLC 91-239
Saleh & Saleh [2016] FamCAFC 100
Sieling & Sieling (1979) FLC 90-627
SS & AH [2010] FamCAFC 13
Stiles & Bale [2008] FMCAfam 657
Thomas A Edison Ltd v Bullock [1912] HCA 72

Law Council of Australia, Family Law Section, Best Practice Guidelines for Lawyers Doing Family Law Work (2^nd ed. 2010)

Applicant:

MS DREW

Respondent:

MR JENSEN

File Number:

WOC 288 of 2017

Judgment of:

Judge Altobelli

Hearing date:

30 March 2017

Date of Last Submission:

30 March 2017

Delivered at:

Wollongong

Delivered on:

13 April 2017

REPRESENTATION

Solicitors for the Applicant:

Legal Aid NSW

Solicitors for the Respondent:

Lukes Law from 30 March 2017

Solicitors for the Respondent:

Able Defence Lawyers before 30 March 2017

ORDERS

THE COURT ORDERS PENDING FURTHER ORDER THAT:

The parties have equal shared parental responsibility for the Children X, born (omitted) 2011 and Y, born (omitted) 2015 (‘the children’).
The children live with the Mother, effective from 4:00pm today.
The children spend time with the Father each alternate weekend from Saturday 10:00am to 4:00pm Sunday, commencing from 22 April 2017.
Changeover at (omitted) Railway Station.
The Father is restrained from approaching the children or coming within 100 metres of their schools without the prior written consent of the mother.
The Father is restrained from entering at, or coming within 100 metres of
(a)the place of residence of the mother and the children, and
(b)any school or educational institution attended by the child, unless otherwise provided in these orders
The recovery order made 28 February 2017 be discharged.

THE COURT FURTHER ORDERS THAT:

Pursuant to section 68L of the Family Law Act 1975 an Independent Children’s Lawyer be appointed for the Children X, born (omitted) 2011 and Y, born (omitted) 2015, and the Legal Aid Commission of New South Wales is requested to provide such representation.
The parties are to provide to the Legal Aid Commission at PO Box K847, HAYMARKET NSW 1238 or DX 5 SYDNEY forthwith all documents thus far filed by…

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 DREW & JENSEN

Details

AGLC: DREW & JENSEN [2017] FCCA 656
Case: [2017] FCCA 656
Decision Date: 13 April 2017

CaseChat Overview and Summary

In the matter of Drew & Jensen, heard before Judge Altobelli, the court was required to make orders concerning the parental responsibility, living arrangements, and time spent with the children, X and Y. The proceedings also involved an application for an Independent Children’s Lawyer and directions regarding the production and inspection of documents.

The central legal issues before the court were the determination of equal shared parental responsibility, the primary residence of the children, and the specific time the children would spend with the father. Additionally, the court had to consider the necessity and scope of restraining orders against the father, the discharge of a previous recovery order, and the appointment and powers of an Independent Children’s Lawyer.

The court ordered that the parties have equal shared parental responsibility for the children. The children were to live with the mother, and the father was to spend time with them on alternate weekends. Crucially, the father was restrained from approaching the children or their schools without the mother's written consent, and from attending within 100 metres of the mother's residence or the children's schools, except as provided in the orders. An Independent Children’s Lawyer was appointed for the children, with directions for the parties to provide relevant documents and for the lawyer to have leave to issue subpoenas, inspect documents, and relist the matter if necessary. The matter was adjourned for mention.

Orders

Orders of the court

THE COURT ORDERS PENDING FURTHER ORDER THAT:

The parties have equal shared parental responsibility for the Children X, born (omitted) 2011 and Y, born (omitted) 2015 (‘the children’).

The children live with the Mother, effective from 4:00pm today.

The children spend time with the Father each alternate weekend from Saturday 10:00am to 4:00pm Sunday, commencing from 22 April 2017.

Changeover at (omitted) Railway Station.

The Father is restrained from approaching the children or coming within 100 metres of their schools without the prior written consent of the mother.

The Father is restrained from entering at, or coming within 100 metres of

(a) the place of residence of the mother and the children, and

(b) any school or educational institution attended by the child, unless otherwise provided in these orders

The recovery order made 28 February 2017 be discharged.

THE COURT FURTHER ORDERS THAT:

Pursuant to section 68L of the Family Law Act 1975 an Independent Children’s Lawyer be appointed for the Children X, born (omitted) 2011 and Y, born (omitted) 2015, and the Legal Aid Commission of New South Wales is requested to provide such representation.

The parties are to provide to the Legal Aid Commission at PO Box K847, HAYMARKET NSW 1238 or DX 5 SYDNEY forthwith all documents thus far filed by them in these proceedings together with all existing orders and copies of any relevant reports.

10.

Leave be granted to the Independent Children’s Lawyer to issue such additional subpoena as they consider relevant to the issues before the Court.

11.

Leave be granted to the Independent Children’s Lawyer to inspect and photocopy any documents produced on subpoena in these proceedings.

12.

Leave be granted to the Independent Children’s Lawyer to relist the matter on short notice by communication with Chambers in appropriate circumstances.

13.

The matter be adjourned to 14 July 2017 at 9:30am for Mention.

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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