FEDERAL CIRCUIT COURT OF AUSTRALIA
| DUFFY & GOMES | [2015] FCCA 1121 |
| Catchwords: FAMILY LAW – Parenting – adjournment of hearing to enable subpoena to be issued – fundamental importance of evidence not obtained to the proper determination of the proceedings and the children’s best interests – failure by the Independent Children’s Lawyer to issue clearly necessary subpoena – evidential issues arising from the failure to issue subpoena and obtain available evidence – role of the Independent Children’s Lawyer – duties of the Independent Children’s Lawyer when both parties self-represented – child’s right to a voice in the proceedings – child’s right to participation – failure of the Independent Lawyer to meet with two teenage children after the release of two family reports – Impact upon the Court’s resources of adjournment – impact upon and disadvantage to parties and children of adjournment when a decade of litigation has preceded. |
| Legislation: Family Law Act 1975 (Cth), ss.69ZT, 69ZV, 69ZW |
| Browne & Dunn (1893) 6 R 67 (HL) Other Articles Cited: Independent Children’s Lawyers Study: Final report, 2nd edition, June 2014 Rae Kaspiew, Rachel Carson, Sharnee Moore, John De Maio, Julie Deblaquiere and Briony Horsfall |
| Applicant: | MS DUFFY |
| Respondent: | MR GOMES |
| File Number: | AYC 463 of 2007 |
| Judgment of: | Judge Harman |
| Hearing date: | 16 March 2015 |
| Date of Last Submission: | 16 March 2015 |
| Delivered at: | Albury |
| Delivered on: | 16 March 2015 |
REPRESENTATION
The Applicant appeared in person
The Respondent appeared in person
| Counsel for the Independent Children’s Lawyer : | Mr Blackman |
| Solicitors for the Independent Children’s Lawyer : | Loretta Terrill Family Lawyer |
ORDERS
This matter is to be adjourned on a part heard basis and listed for further hearing on 20…
Continue reading DUFFY & GOMES
Sign in free to access the full text
- AGLC
- Duffy and Gomes [2015] FCCA 1121
- Case
- [2015] FCCA 1121
- Decision Date
CaseChat Overview and Summary
The court was required to determine the procedural steps necessary to advance the proceedings, particularly concerning the involvement of the children and the gathering of relevant evidence. This included how the Independent Children’s Lawyer should engage with the children and what documents and records should be obtained to inform the court's decision.
Judge Harman ordered that the matter be adjourned on a part-heard basis, with further hearings scheduled for May 2015. The Independent Children’s Lawyer was directed to meet with the children to discuss recent events and relevant family reports, ensuring the children's right to participate and express their views. Furthermore, the Independent Children’s Lawyer was instructed to issue subpoenas for various documents, including records from government departments, police, educational institutions, and the psychologists of both parents, to ensure all relevant information was before the court.
Orders
Orders of the court
1.
This matter is to be adjourned on a part heard basis and listed for further hearing on 20 & 21 May 2015 at 10:00am.
2.
The Independent Children’s Lawyer shall forthwith:
(a) Meet with the children whose interests are represented to engage in such discussions with them as may seem necessary and appropriate, but particularly having regard to events and incidents which are suggested to have occurred since they were met in 2014 and canvass such contents of the two Family Report which have been produced since that time as may seem appropriate to assist the Independent Children’s Lawyer in formulating a position, taking into account the children’s right to participate and views expressed by them and in the discretion of the Independent Children’s Lawyer.
(b) Cause the issue of all necessary subpoena for production of documents to obtain records that would be relevant to the issues in these proceedings, including but not limited to:
(i) The Department of Human Services, Victoria;
(ii) New South Wales Police;
(iii) Victoria Police;
(iv) (omitted) College, (omitted) College Campus (seeking records from the school wellbeing officer and any school counsellor or chaplain);
(v) The mother’s psychologist, Mr G;
(vi) Records of the father’s attendance upon his psychologist “Mr N” through (omitted) Health; and
(vii) Such other subpoena as may appear useful, necessary or desirable.
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
Full text does not contain this section.