Flaherty & Downs (No 2) - [2022] FedCFamC2F 373

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Flaherty & Downs (No 2) [2022] FedCFamC2F 373

File number(s): ADC2489 of 2018

Judgment of: JUDGE McGINN

Date of judgment: 10 May 2022

Catchwords: FAMILY LAW – repeated interim applications for parenting orders – previous and recent determinations of interim applications – proximity of Child Impact Report pursuant to previous orders – Central Practice Direction - no change in circumstances justifying reconsideration of previous interim orders – dismissal of interim application – steps before further, similar application – application to discharge Independent Children’s Lawyer on account of lack of response to applicant’s correspondence – not justifying discharge of Independent Children’s Lawyer - application dismissed

Legislation:
Family Law Act 1975 (Cth)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021

Cases cited:
Dean & Susskind [2012] FamCA 897

Horner & Horner [2018] FamCA 487

Knibbs & Knibbs [2009] FamCA 840

Leroux & Leroux [2015] FamCA 1128

Lloyd & Lloyd & The Child Representative (2000) FLC 93-045

Malcher v Malcher (No 2) [2012] FamCA 1115

Paco & Racina [2014] FamCAFC 195

Re Golding [2020] HCA 38

Rice & Asplund (1979) FLC 90-725

Sawyer & Sawyer [2015] FamCA 982

Stenning & Stenning [2021] FamCA 561

Vale & Vale [2016] FamCA 307

Division: Division 2 Family Law

Number of paragraphs: 108

Date of last submission/s: 28 April 2022

Date of hearing: 28 April 2022

Place: Adelaide

Counsel for the Applicant: Mr Britton

Solicitor for the Applicant: Women’s Legal Service

The Respondent: Mr Downs

Counsel for the Independent Children's Lawyer: Mr Childs

Solicitor for the Independent Children's Lawyer: Legal Services Commission of South Australia
ORDERS

ADC2489 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS FLAHERTY

Applicant

AND:
MR DOWNS

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE McGINN

DATE OF ORDER:

10 MAY 2022

UPON NOTING that in the event that the Orders for the filing of documents for the adjourned hearing provided for in these Orders have not been complied with, the Court shall:
A.give consideration to vacating the adjourned hearing and list the matter for mention only;
B.give consideration to making an Order:
i.that the defaulting party pay the costs of the party not in default; and/or
ii.consider as to whether costs Orders be made personally against the solicitor for the defaulting party; and/or
iii.having the matter adjourned or listed to proceed without evidence from the defaulting party and/or undefended;

C.that pursuant to clause 5.22 of the Central Practice Direction the father is required to seek leave to file any further Application in a Proceeding.

IT IS ORDERED:
1.That the father’s Amended Application in a Case filed 22 February 2022 and paragraphs 1, 2 and 4 of the mother’s Response to an Application in a Proceeding sealed 24 March 2022 be dismissed.
2.In the event that the mother is to pursue her application for costs by paragraph 3 of her Response to an Application in a Proceeding sealed 24 March 2022, that:
(a)within 14 days…

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 Flaherty & Downs (No 2)

Details

AGLC: Flaherty & Downs (No 2) [2022] FedCFamC2F 373
Case: [2022] FedCFamC2F 373
Decision Date

CaseChat Overview and Summary

The case of Flaherty & Downs (No 2) was heard by Judge McGinn of the Federal Circuit and Family Court of Australia (Division 2). The father, Downs, brought an application seeking to have the Independent Children’s Lawyer discharged and for a cessation of the suspension of the final orders made by consent of the parties on 12 June 2020 regarding the time he spends with his daughter. The mother opposed the application and argued it was vexatious. The central legal issue was whether there was a material change in circumstances justifying reconsideration of the previous interim orders. The court considered the father's failure to provide requested evidence about his employment circumstances and the lack of new evidence in support of his application.

In its reasoning, the court found that the father's application was without merit as it did not present new evidence or a material change in circumstances. The court emphasised that the Federal Circuit and Family Court of Australia (Division 2) is not a court of unrelenting interlocutory applications and that the father's application was an example of the detriment caused by endless litigation. The court also found that the father's lack of response to the mother's request for evidence about his employment was unreasonable and that he had an obligation to provide such evidence. The court dismissed the father's application and ordered that he take certain steps before making any further similar applications.

In conclusion, the court dismissed the father's amended application and made orders regarding the filing of documents and costs submissions. The court also required the father to take certain steps before making any further similar applications.

Orders