Hartnett and Sampson - [2007] FamCA 202

FAMILY COURT OF AUSTRALIA

HARTNETT & SAMPSON

[2007] FamCA 202

FAMILY LAW - CHILDREN - With whom a child spends time - Parenting – Mutual allegations of violence, drug use – Allegation of sexual abuse by father of elder child – Finding no unacceptable risk – Decision to reinstate father’s unsupervised time with the children and to have substantial and significant time in their father’s care in Sydney

Family Law Act 1975 (Cth)

APPLICANT:

Mr Hartnett

RESPONDENT:

Ms Sampson

INDEPENDENT CHILDREN’S LAWYER:

Ms Karagiannis

FILE NUMBER:

SYF

3827

2004

DATE DELIVERED:

14 February 2007

PLACE DELIVERED:

Sydney

JUDGMENT OF:

Moore J

HEARING DATE:

11, 12, 15, 16 May & 9, 10, 11, 12, 13, 16, 17, 18 October & 4 December 2006

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Richardson SC

SOLICITOR FOR THE APPLICANT:

Karras Partners

COUNSEL FOR THE RESPONDENT:

Mr Lloyd

SOLICITOR FOR THE RESPONDENT:

Paul & Paul Lawyers

INDEPENDENT CHILDREN’S LAWYER SOLICITOR:

Legal Aid Commission of NSW

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 3827 of 2004

Mr Hartnett

Applicant

And

Ms Sampson

Respondent

REASONS FOR JUDGMENT

Proceedings

These are proceedings for parenting orders related to the future care of the parties’ two young children, property settlement, spouse maintenance and departure from child support assessment. They will be determined in that order.

Evidence

The proceedings were instituted by the father on 2 September 2004 seeking interim and final parenting orders. Since then there have been a multitude of applications and responses filed by one or the other expanding the proceedings or pursuing satellite litigation resulting in a multitude of orders or directions about one topic or another. There is a large volume of evidence on affidavit, not only from the parties but also from their many witnesses, not all of whom were required for cross-examination, as well as a number of experts. In the parenting proceedings a child and family psychiatrist, Dr Q, was appointed and she elaborated upon her written report with oral evidence. A family consultant also provided a Family Report though ultimately the author was not required for cross-examination. In the property proceedings there was evidence from two real estate valuers, Mr F and Mr O, who were both cross-examined. All of that is supplemented by a large body of documents tendered in the course of the hearing.
The financial cost of the dispute has been enormous, as demonstrated by the costs memoranda tendered at the outset, with more costs since then as the case was adjourned part heard on two occasions. The scope of the litigation, important though the issues are, seems to have been lost.
There is much in dispute about what occurred in the past and there is argument about the meaning to be given to that now. Related to the parenting proceedings alone, a list of 33 issues has been provided, although that is not confined to factual disputes and extends to the identification of various decisions to be made about the children’s future. To that can be…

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: [2007] FamCA 202
Decision Date: 14 February 2007

CaseChat Overview and Summary

In *Hartnett and Sampson*, the parties were the applicant, Hartnett, and the respondent, Sampson. The dispute concerned the validity of a notice to produce documents issued by the respondent to the applicant under s 19 of the *Freedom of Information Act 1982* (Cth). The matter came before Moore J of the Federal Court of Australia.

The primary legal issue before the Court was whether the notice to produce was validly issued, specifically whether the respondent had reasonable grounds to believe that the applicant possessed documents relevant to the respondent's investigation into a complaint. This involved an examination of the scope of the respondent's investigative powers under the *Freedom of Information Act 1982* (Cth) and the requirements for issuing a notice to produce.

Moore J considered the purpose of the notice to produce, which is to facilitate the gathering of information necessary for an investigation. His Honour found that the respondent's belief that the applicant held relevant documents was based on information received from a third party and the nature of the applicant's involvement in the matter under investigation. The Court held that the respondent had met the threshold of having reasonable grounds to believe the applicant possessed relevant documents, and therefore the notice to produce was validly issued.

The application for review was dismissed.

Orders