Dupont and Unwin - [2013] FamCA 1068

FAMILY COURT OF AUSTRALIA

DUPONT & UNWIN	[2013] FamCA 1068
FAMILY LAW – PRACTICE AND PROCEDURE – Steps to ensure readiness for trial or mediation

APPLICANT:

Ms Unwin

RESPONDENT:

Ms Dupont

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

Ms C Smith

FILE NUMBER:

MLC

9645

2011

DATE DELIVERED:

29 October 2013

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Bennett J

HEARING DATE:

29 October 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT:

Nicola Hoobin

COUNSEL FOR THE RESPONDENT:

Ms Phelan

SOLICITOR FOR THE RESPONDENT:

Moores Legal

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Ms McNamee
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Victoria Legal Aid

Orders

IT IS ORDERED THAT

1.This matter be listed for mention before me in Court on 6 March 2014 at 9.00 am for the purpose of checking on the readiness of the matter for trial or mediation (“the adjourned date”).
2.The applicant and the respondent do all acts and things requested by the Independent Children’s Lawyer to make application to attend a Round Table Mediation Conference with Victoria Legal Aid in March 2014 after the adjourned date.
3.Notwithstanding any other order to the contrary, for the purpose of application to Victoria Legal Aid Round Table Dispute Management the Independent Children’s Lawyer is hereby authorised to provide to Victoria Legal Aid Round Table Dispute Management:-
a.      any family report;
b.      any Children and Parent’s Issues Assessment;
c.      any transcript of viva-voce evidence of a family consultant or reasons for decision; and
d.      any other report by a professional in this matter that the Independent Children’s Lawyer considers is necessary.
4.The issue of whether or not the parties do attend a round table mediation conference as arranged by the Independent Children’s Lawyer be reserved for determination on the adjourned date.
5.By not later than 17 February 2014 the Independent Children’s Lawyer obtain a report from the agency who is supervising time spent between the child L born … 2010, (“the child”) and the applicant and publish same to the parties and to my Associate – email … .
6.Until further order, the respondent Ms Dupont notify the applicant, Ms Unwin, forthwith upon publication of her employment roster, of nightshifts that she is required to work which she says preclude her from delivering the child for time spent with the applicant on Monday mornings. In the event of any variation of such roster keep the applicant, Ms Unwin, advised in writing as soon as practicable of the variations.
7.Until further order, in the event that time to be spent cannot take place because the respondent, Ms Dupont, is rostered to, and does in fact, work from 11.00 pm on Sunday to 7.00 am on any Monday on which the child is to see the applicant, the two hours of time lost be made up by extending the next two periods of time spent by one hour so that it commences at 10.00 am and concludes at 1.00 pm.
8.The parties promptly notify the Independent Children’s Lawyer of the…

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.

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Details

Case: [2013] FamCA 1068
Decision Date: 29 October 2013

CaseChat Overview and Summary

This matter came before Bennett J concerning a dispute between the applicant, Ms. Unwin, and the respondent, Ms. Dupont, regarding their child. The court's orders indicate a focus on facilitating mediation and ensuring the child's welfare and contact arrangements.

The primary legal issues before the court involved determining the procedural steps necessary for the parties to engage in mediation, specifically through Victoria Legal Aid's Round Table Mediation Conference. The court also had to address the practical arrangements for supervised child contact, including the provision of necessary reports and information to facilitate mediation, and to resolve potential conflicts arising from the respondent's work roster.

Bennett J directed that the matter be listed for mention to check readiness for trial or mediation. Crucially, the court authorised the Independent Children’s Lawyer to provide specific documents, including family reports and transcripts, to Victoria Legal Aid to facilitate the mediation application. The court also made orders concerning the respondent's work roster and how to manage missed contact time due to work commitments, aiming to ensure the child's time with the applicant was maintained. Further directions were given for obtaining a report on supervised time and for the parties to notify the Independent Children’s Lawyer of a workplace relations complaint. The court also reserved the issue of whether the parties would attend mediation for determination on the adjourned date.

Orders

Orders of the court

IT IS ORDERED THAT

1. This matter be listed for mention before me in Court on 6 March 2014 at 9.00 am for the purpose of checking on the readiness of the matter for trial or mediation (“the adjourned date”).

2. The applicant and the respondent do all acts and things requested by the Independent Children’s Lawyer to make application to attend a Round Table Mediation Conference with Victoria Legal Aid in March 2014 after the adjourned date.

3. Notwithstanding any other order to the contrary, for the purpose of application to Victoria Legal Aid Round Table Dispute Management the Independent Children’s Lawyer is hereby authorised to provide to Victoria Legal Aid Round Table Dispute Management:-

a. any family report;

b. any Children and Parent’s Issues Assessment;

c. any transcript of viva-voce evidence of a family consultant or reasons for decision; and

d. any other report by a professional in this matter that the Independent Children’s Lawyer considers is necessary.

4. The issue of whether or not the parties do attend a round table mediation conference as arranged by the Independent Children’s Lawyer be reserved for determination on the adjourned date.

5. By not later than 17 February 2014 the Independent Children’s Lawyer obtain a report from the agency who is supervising time spent between the child L born … 2010, (“the child”) and the applicant and publish same to the parties and to my Associate – email … .

6. Until further order, the respondent Ms Dupont notify the applicant, Ms Unwin, forthwith upon publication of her employment roster, of nightshifts that she is required to work which she says preclude her from delivering the child for time spent with the applicant on Monday mornings. In the event of any variation of such roster keep the applicant, Ms Unwin, advised in writing as soon as practicable of the variations.

7. Until further order, in the event that time to be spent cannot take place because the respondent, Ms Dupont, is rostered to, and does in fact, work from 11.00 pm on Sunday to 7.00 am on any Monday on which the child is to see the applicant, the two hours of time lost be made up by extending the next two periods of time spent by one hour so that it commences at 10.00 am and concludes at 1.00 pm.

8. The parties promptly notify the Independent Children’s Lawyer of the outcome of the work place relations complaint against Ms Unwin currently being undertaken by Victoria Police.

9. The reasons for decision this day be transcribed and when settled copies be made available to the parties.

10. Until further order, each party is at liberty to cause subpoena(s) to issue returnable in any subpoena list until the final hearing or on any date appointed by Registrars Riddiford or Sikiotis for the return of subpoena or on any date notified to the parties by my Chambers for the return of subpeoana(s).

11. Pursuant to Sections 65DA(2) and 62B the particulars and 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 parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

12. If it is not already the case, henceforth Registrar Sikiotis be the Docket Registrar for this matter and her assigned Case Coordinator be noted in the records of the Court as the Case Coordinator for this matter.

IT IS DIRECTED:

13. That the minute of proposed orders of the applicant be marked Exhibit “AM1” and remain on the Court file.

14. That the minute of proposed orders of the respondent be marked Exhibit “RM1” and remain on the Court file.

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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