Edmonds and Whyte and Anor - [2017] FCCA 2733

FEDERAL CIRCUIT COURT OF AUSTRALIA

EDMONDS & WHYTE & ANOR

[2017] FCCA 2733

Catchwords:
FAMILY LAW – Ruling on application to reinstate a proceeding finalised in the absence of a party.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.16.05

Aon Risk Services Australia Ltd & Australian National University (2009) 239 CLR 175
Barbey & Tuttle [2013] FamCAFC 44
Clifford & Mountford [2006] FMCAfam 450
Malak & Malak [2016] FamCAFC 114

Applicant:

MR EDMONDS

First Respondent:

MS WHYTE

Second Respondent:

MS MCGEE

File Number:

MLC 4655 of 2015

Judgment of:

Judge Burchardt

Hearing date:

23 October 2017

Date of Last Submission:

23 October 2017

Delivered at:

Melbourne

Delivered on:

13 November 2017

REPRESENTATION

Counsel for the Applicant:

Mr Kanarev

Solicitors for the Applicant:

Tyler Tipping & Woods

Counsel for the First Respondent:

Ms Whyte, In Person

Counsel for the Second Respondent:

Ms McGee, In Person

Counsel for the Independent Children’s Lawyer:

Ms Thompson

Solicitors for the Independent Children’s Lawyer:

Clark Family Lawyers

ORDERS

The Application in a Case dated 20 September 2017 made pursuant to rule 16.05 of the Federal Circuit Court Rules 2001 to set aside orders made in the absence of the father be granted.
The matter be adjourned to 22 January 2018 at 10.00 am in Melbourne for final hearing (with an estimated hearing time of three days).
The child X born (omitted) 2012 (“X”) attend upon a forensic paediatric psychiatrist for the purposes of an assessment and report, AND IT IS REQUESTED that Victoria Legal Aid provide funding for such.
The party responsible for the payment of any fee including a setting down or hearing fee pay or cause to be paid such of the fees as shall be payable by that party in accordance with, and within the time specified in, the Family Law (Fees) Regulation 2012.
Paragraph 6 of the Orders made 31 July 2017 be discharged.
The parties do all acts and things and sign all the necessary documents to file an Application for supervised time at Family Life in (omitted).
The Father shall abide by all lawful directions imposed by the said contact centre and in the event that the Father defaults in attending to supervised time periods the Respondents have liberty to apply to seek a no time spent period.
The child X born on (omitted) 2012 attend upon a forensic paediatric psychiatrist for the purposes of an assessment and report with reference to:
(a)The child’s history (including medical history);
(b)Whether the child suffers with a psychiatric disorder or personality disorder;
(c)Whether the child’s illness is related to the father’s time spent period or lack thereof;
(d)Such further and other matters that are relevant to the welfare of the child.
The costs of the report referred to in paragraph 4 herein be borne by the Independent Children’s Lawyer AND IT IS REQUESTED that Victoria Legal Aid providing funding.
The Father file and serve an Affidavit by 20 November 2017 setting out the reasons why he missed supervised spend time periods in…

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 Edmonds and Whyte and Anor

Details

AGLC: Edmonds and Whyte and Anor [2017] FCCA 2733
Case: [2017] FCCA 2733
Decision Date: 13 November 2017

CaseChat Overview and Summary

In the Federal Circuit Court, Judge Burchardt considered an application to set aside previous orders made in the absence of the father. The dispute concerned arrangements for the children, X and Y, who had not spent time with the father since June 2017. The court also addressed the need for a forensic paediatric psychiatric assessment of child X, who was receiving treatment for anxiety.

The primary legal issues before the court were whether to grant the application to set aside the previous orders, the appropriate interim arrangements for the children, and the terms of a forensic paediatric psychiatric assessment for child X. The court was required to determine these matters in accordance with the best interests of the children, considering the circumstances of the father's absence from previous proceedings and the child's mental health needs.

The court reasoned that setting aside the previous orders was appropriate to allow the father to participate in proceedings and to ensure a fair determination of the parenting arrangements. The court ordered that child X attend a forensic paediatric psychiatrist for a comprehensive assessment, with specific reference to the child's history, any psychiatric or personality disorders, and the potential link between the child's condition and the father's involvement. The court also directed the father to provide an affidavit explaining his previous missed supervised time periods and set timelines for the filing of further affidavits by the parties.

The court made orders for the matter to be adjourned for a final hearing, with directions for supervised time to be arranged and for the parties to cooperate in filing necessary documents. The costs of the forensic paediatric psychiatric report were to be borne by the Independent Children's Lawyer, with a request for funding from Victoria Legal Aid. The court also noted that particulars of obligations and consequences for contravention of the orders were attached.

Orders

Orders of the court

The Application in a Case dated 20 September 2017 made pursuant to rule 16.05 of the Federal Circuit Court Rules 2001 to set aside orders made in the absence of the father be granted.

The matter be adjourned to 22 January 2018 at 10.00 am in Melbourne for final hearing (with an estimated hearing time of three days).

The child X born (omitted) 2012 (“X”) attend upon a forensic paediatric psychiatrist for the purposes of an assessment and report, AND IT IS REQUESTED that Victoria Legal Aid provide funding for such.

The party responsible for the payment of any fee including a setting down or hearing fee pay or cause to be paid such of the fees as shall be payable by that party in accordance with, and within the time specified in, the Family Law (Fees) Regulation 2012.

Paragraph 6 of the Orders made 31 July 2017 be discharged.

The parties do all acts and things and sign all the necessary documents to file an Application for supervised time at Family Life in (omitted).

The Father shall abide by all lawful directions imposed by the said contact centre and in the event that the Father defaults in attending to supervised time periods the Respondents have liberty to apply to seek a no time spent period.

The child X born on (omitted) 2012 attend upon a forensic paediatric psychiatrist for the purposes of an assessment and report with reference to:

(a) The child’s history (including medical history);

(b) Whether the child suffers with a psychiatric disorder or personality disorder;

(d) Such further and other matters that are relevant to the welfare of the child.

The costs of the report referred to in paragraph 4 herein be borne by the Independent Children’s Lawyer AND IT IS REQUESTED that Victoria Legal Aid providing funding.

10.

The Father file and serve an Affidavit by 20 November 2017 setting out the reasons why he missed supervised spend time periods in the last proceedings.

11.

The Respondents file and serve a Response and any further Affidavits by 4 December 2017.

AND THE COURT NOTES THAT:

A. The children X and Y have not spent time with the Father since 25 June 2017.

B. The child X is under the care of Early Learning Mental Health Services and is being treated for anxiety and has been prescribed medication for such a condition.

C. Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

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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