Gowrie and Gowrie - [2017] FCCA 3328

FEDERAL CIRCUIT COURT OF AUSTRALIA

GOWRIE & GOWRIE

[2017] FCCA 3328

Catchwords:
FAMILY LAW – Final parenting – where the mother has failed to comply with prior orders and directions regarding attendance at family counselling and family dispute resolution services – final orders made by consent.

Legislation:

Family Law Act 1975, ss.4, 13C, 13D, 60B, 61C, 64B, 65DAC, 65F, 67Z

Federal Circuit Court Rules 2001, rr.13.03A, 1303B

Cases cited:
Tate & Tate(No.3) (2003) FLC 93-138
Stevenson & Hughes [1993] FamCA 14

Applicant:

MS GOWRIE

Respondent:

MR GOWRIE

File Number:

PAC 2401 of 2016

Judgment of:

Judge Harman

Hearing date:

17 November 2017

Date of Last Submission:

17 November 2017

Delivered at:

Parramatta

Delivered on:

17 November 2017

REPRESENTATION

Solicitors for the Applicant:

Ms Jaksic of Lamrocks Solicitors

Solicitors for the Respondent:

Mr Bainbridge of Bainbridge Legal

ORDERS

Discharge the Order for preparation of a Family Report, being Order 3 of the Orders made 24 March 2017.
By consent Orders are made in accordance with the Terms of Settlement executed by the parties marked Exhibit ‘A’ attached hereto.
Direct the solicitor for the Applicant to provide a typescript of the Terms of Settlement made today in word format direct to my Associate by email within 7 days of today’s date.
Remove all issues from the list of matters awaiting hearing.
Leave is granted to Mr Gowrie to withdraw and discontinue his Application for Divorce filed 26 July 2016 without prejudice and without penalty as to costs.
Dispense with the requirement for Mr Gowrie to make payment of any further filing fee with respect to a subsequent Application for Divorce that he intends to file and will file forthwith.
Request that a copy of these Orders be forwarded to (omitted) Counselling and (omitted) be requested to advise the Court pursuant to section 13D of the Family Law Act 1975 should Ms Gowrie fail to contact them by close of business 24 November 2017 to enrol in such family counselling services as were previously assessed as suitable and, further, to advise the Court in writing should Ms Gowrie fail to complete such courses or services as were assessed as suitable.
In the event that the Court receives notice from (omitted) that Ms Gowrie has failed or refused to participate in or complete courses and services assessed as suitable, then the parenting Orders made today will be dismissed by Order in Chambers without hearing further from either party.
Pursuant to S.65DA(2) and S.62B, the particulars of 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 these particulars are included in these Orders.

EXHIBIT ‘A’

That the Interim Orders dated 9 December 2016 be discharged.
That the mother have sole parental responsibility for the children X (DOB: (omitted) 2005) and Y (DOB: (omitted) 2007).
That the children…

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 Gowrie and Gowrie

Details

AGLC: Gowrie and Gowrie [2017] FCCA 3328
Case: [2017] FCCA 3328
Decision Date: 17 November 2017

CaseChat Overview and Summary

This matter concerned Mr. Gowrie and Ms. Gowrie, who appeared before Judge Harman in the Federal Circuit Court of Australia. The dispute involved parenting arrangements for their two children, X and Y, and the father's application for divorce. The parties had reached a settlement regarding these matters.

The court was required to determine the terms of consent orders reflecting the parties' agreement on parenting responsibility, the children's living arrangements, and the father's application for divorce. Additionally, the court needed to address the father's intention to file a new divorce application and the conditions surrounding the mother's potential travel with the children. The court also considered the need for family counselling and the consequences of non-compliance with the orders.

Judge Harman made orders by consent, discharging previous interim orders and a family report order. The mother was granted sole parental responsibility for the children, with the children to live with her. The father was to spend time with the children as agreed between the parties. The orders also stipulated conditions for the mother's travel with the children overseas, including notice periods and provision of itineraries and insurance details. The court authorised the Registrar to sign necessary documents on behalf of a party who refused or neglected to do so, with the defaulting party bearing the costs. Both parties were prohibited from physically disciplining the children or denigrating the other parent in their presence. The father was granted leave to withdraw his current divorce application without prejudice and without penalty as to costs, and was dispensed from paying a further filing fee for a new application he intended to file. The court also made specific provisions regarding family counselling services and the consequences of contravening the orders, referencing sections 13D, 62B, and 65DA(2) of the *Family Law Act 1975*.

Orders

Orders of the court

Discharge the Order for preparation of a Family Report, being Order 3 of the Orders made 24 March 2017.

By consent Orders are made in accordance with the Terms of Settlement executed by the parties marked Exhibit ‘A’ attached hereto.

Direct the solicitor for the Applicant to provide a typescript of the Terms of Settlement made today in word format direct to my Associate by email within 7 days of today’s date.

Remove all issues from the list of matters awaiting hearing.

Leave is granted to Mr Gowrie to withdraw and discontinue his Application for Divorce filed 26 July 2016 without prejudice and without penalty as to costs.

Dispense with the requirement for Mr Gowrie to make payment of any further filing fee with respect to a subsequent Application for Divorce that he intends to file and will file forthwith.

Request that a copy of these Orders be forwarded to (omitted) Counselling and (omitted) be requested to advise the Court pursuant to section 13D of the Family Law Act 1975 should Ms Gowrie fail to contact them by close of business 24 November 2017 to enrol in such family counselling services as were previously assessed as suitable and, further, to advise the Court in writing should Ms Gowrie fail to complete such courses or services as were assessed as suitable.

In the event that the Court receives notice from (omitted) that Ms Gowrie has failed or refused to participate in or complete courses and services assessed as suitable, then the parenting Orders made today will be dismissed by Order in Chambers without hearing further from either party.

Pursuant to S.65DA(2) and S.62B, the particulars of 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 these particulars are included in these Orders.

EXHIBIT ‘A’

That the Interim Orders dated 9 December 2016 be discharged.

That the mother have sole parental responsibility for the children X (DOB: (omitted) 2005) and Y (DOB: (omitted) 2007).

That the children live with the mother.

That the children spend time with the father as agreed between the parties.

That in the event of the children or either of them suffering a serious medical emergency requiring urgent medical attention the mother shall notify the father as soon as practicable and provide him with the full details of the practitioner and medical facility upon which the children or either of them attends as soon as possible.

That each party shall ensure that they keep the other advised of their telephone number, residential address and email address and notify the other of any change to these details as soon as is practicable.

That the mother be permitted to travel with the children outside the Commonwealth of Australia on any occasion the mother deems fit on the condition she provides the father with the following:

(a) That the mother provide the father with no less than six weeks' notice of the intended date of departure from Australia and the intended date of return to Australia;

(b) That the mother provide the father with an itinerary for the proposed travel and contact details for the children while they are travelling at least three weeks prior to the proposed date of departure;

(c) That the mother provide the father with written confirmation of the travel and medical insurance policies to apply to the children while overseas at least three weeks prior to the proposed date of departure.

That the father shall complete, sign and have duly witnessed and return to the mother any passport application for the issue of a passport to the children within 14 days of the mother providing the father with such a form for him to sign.

Should either party refuse or neglect to sign, within fourteen (14) days of a request to do so by the other party, any deed or instrument including any documents necessary to give effect to these orders, then the Registrar of the Federal Circuit Court in its Parramatta Registry and in his absence the Deputy Registrar, are authorised and empowered under Section 106A of the Family Law Act, to sign all necessary documents and do all necessary things on behalf of the parties, upon the Registrar being provided with verification of such refusal or failure by way of affidavit. In the event that the appropriate court officer is required to sign documents or do things under this order, the defaulting party on whose behalf the documents are signed or the things done shall bear the legal costs and other expenses of the default, payable to the other party on a solicitor and client basis.

10.

That neither party physically discipline the children.

11.

That neither party shall denigrate the other party or permit any third party to denigrate the other parent in the presence or hearing of the children or either of them.

12.

That pursuant to s.62B of the Family Law Act, information about the family counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.

13.

That pursuant to s.65DA(2) of the Family Law Act, 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 the Fact Sheet, attached hereto 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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