Dunbar and Dunbar - [2010] FamCA 698

FAMILY COURT OF AUSTRALIA

DUNBAR & DUNBAR

[2010] FamCA 698

FAMILY LAW – PRACTICE AND PROCEDURE – ADJOURNMENT – Adjournment granted

Family Law Act 1975 (Cth)

B & B [1999] FamCA 1992
Cheung v The Queen (1999) 73 ALJR 1093
Dietrich v The Queen (1992) 177 CLR 292
L and L (unreported, Full Court of the Family Court, 13 December 1996)

APPLICANT:

Ms Dunbar

RESPONDENT:

Mr Dunbar

FILE NUMBER:

BRC

3294

2009

DATE DELIVERED:

19 July 2010

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

O’Reilly J

HEARING DATE:

19 July 2010

REPRESENTATION

THE APPLICANT:

In person

COUNSEL FOR THE RESPONDENT:

Mr Scott-Mackenzie

SOLICITOR FOR THE RESPONDENT:

Butler McDermott Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER

Ms McLennan

THE INDEPENDENT CHILDREN’S LAWYER

Ms Brunswick
Family Law Solutions

Orders

IT IS ORDERED

Dr Sayers of Counsel and the mother’s solicitors have leave to withdraw.
On the mother’s application, the proceedings are adjourned.
The proceedings be relisted for hearing in the Magellan Special Sittings for 5 days from Monday 23 August 2010 - Friday 27 August 2010 as the first reserve case in that week and it be given priority for fixed dates in that week upon delisting of any existing matters in that week.
The father file and serve any amended response by 4.00pm on Monday 26 July 2010.
The matter be listed for a case management hearing at 11.00am on Tuesday 3 August 2010 before Registrar Kane.

AND IT IS FURTHER ORDERED BY CONSENT UNTIL FURTHER ORDER

The children R born … September 2005 and P born … January 2007 spend time with the father on Thursdays from 9.00am until 12 noon and the children M born … January 2003 and R and P spend time with the father on Sundays from 10.00am until 4.00pm all such time to be supervised by Mr B or as approved in writing by the independent children’s lawyer.
The parties must ensure that the children not be interviewed by any person at the Queensland Police Service or the Department of Community Services (Child Safety) or medically examined without specific court order.
The mother must not change any educational or living arrangements presently in place concerning the children without approval in writing by the independent children’s lawyer.

AND IT IS FURTHER ORDERED BY CONSENT

The mother must post the children’s passports to the independent children’s lawyer in an express post bag no later than 10.00am on Tuesday 20 July 2010.

AND IT IS FURTHER ORDERED

The mother’s application that she be permitted to take the children to counselling in relation to alleged sexual abuse or for any other purpose is dismissed.

AND IT IS FURTHER ORDERED

The children immediately be removed from the mother’s home and care by S Dunbar and until further order reside with S Dunbar and K Dunbar.
The matter may be listed before the Honourable Justice O’Reilly this week or next week on short notice by direct arrangement with the Associate for further interim orders including in relation…

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 Dunbar and Dunbar

Details

AGLC: Dunbar and Dunbar [2010] FamCA 698
Case: [2010] FamCA 698
Decision Date: 19 July 2010

CaseChat Overview and Summary

In the matter of *Dunbar and Dunbar*, heard before O’Reilly J, the proceedings concerned the welfare and living arrangements of the children R, P, and M. The mother had dismissed her legal representatives on the morning of the listed trial, and the court was informed that she was unlikely to be granted further adjournments if she could not secure new legal representation.

The court was required to determine several issues, including whether to grant the mother's application for leave to withdraw her legal representatives, whether to adjourn the proceedings, and what interim orders should be made regarding the children's care, contact with their father, and their passports. The court also considered the mother's application to take the children to counselling and the immediate care arrangements for the children.

O’Reilly J ordered that the mother's solicitors and counsel be granted leave to withdraw and that the proceedings be adjourned. The matter was relisted for a hearing in August 2010, with the father required to file any amended response by a specified date. A case management hearing was also scheduled. By consent, interim orders were made regarding the children's supervised time with the father, and restrictions were placed on the children being interviewed or medically examined without a court order, and on the mother changing the children's educational or living arrangements without the written approval of the independent children's lawyer. The mother was also ordered to post the children's passports to the independent children's lawyer. The mother's application for permission to take the children to counselling was dismissed. Crucially, the court ordered that the children be immediately removed from the mother's care and reside with S Dunbar and K Dunbar until further order, with liberty to list the matter for further interim orders concerning the children's time with the mother.

Orders

Orders of the court

IT IS ORDERED

Dr Sayers of Counsel and the mother’s solicitors have leave to withdraw.

On the mother’s application, the proceedings are adjourned.

The proceedings be relisted for hearing in the Magellan Special Sittings for 5 days from Monday 23 August 2010 - Friday 27 August 2010 as the first reserve case in that week and it be given priority for fixed dates in that week upon delisting of any existing matters in that week.

The father file and serve any amended response by 4.00pm on Monday 26 July 2010.

The matter be listed for a case management hearing at 11.00am on Tuesday 3 August 2010 before Registrar Kane.

AND IT IS FURTHER ORDERED BY CONSENT UNTIL FURTHER ORDER

The children R born … September 2005 and P born … January 2007 spend time with the father on Thursdays from 9.00am until 12 noon and the children M born … January 2003 and R and P spend time with the father on Sundays from 10.00am until 4.00pm all such time to be supervised by Mr B or as approved in writing by the independent children’s lawyer.

The parties must ensure that the children not be interviewed by any person at the Queensland Police Service or the Department of Community Services (Child Safety) or medically examined without specific court order.

The mother must not change any educational or living arrangements presently in place concerning the children without approval in writing by the independent children’s lawyer.

AND IT IS FURTHER ORDERED BY CONSENT

The mother must post the children’s passports to the independent children’s lawyer in an express post bag no later than 10.00am on Tuesday 20 July 2010.

AND IT IS FURTHER ORDERED

10.

The mother’s application that she be permitted to take the children to counselling in relation to alleged sexual abuse or for any other purpose is dismissed.

AND IT IS FURTHER ORDERED

11.

The children immediately be removed from the mother’s home and care by S Dunbar and until further order reside with S Dunbar and K Dunbar.

12.

The matter may be listed before the Honourable Justice O’Reilly this week or next week on short notice by direct arrangement with the Associate for further interim orders including in relation to the children spending time with the mother.

NOTATION:

On the morning of the listed trial 19 July 2010 the mother dismissed her legally aided solicitors Rimmer Lawyers and Dr Sayers of Counsel retained by them and was warned that if she is unable to obtain new legal representation it is unlikely that she will be granted any further adjournment.

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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