Harvie & Beale - [2023] FedCFamC1F 782

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Harvie & Beale [2023] FedCFamC1F 782

File number(s) MLC 9904 of 2015

Judgment of WILSON J

Date of judgment 12 September 2023

Catchwords FAMILY LAW – PARENTING – mother persistently refusing to participate in proceeding after 25 August 2023 appearance – mother writing a litany of unacceptable emails to my associates – mother threatening to sue me personally unless her adjournment request was granted – mother initially consents to my deadline with the trial of this proceeding then asserts a conflict of interest emerges – mother asserts that the trial is not ready because the father is facing the Magistrates Court in weeks to come – mother fails to prosecute her application to remove the ICL – held, mother’s application for the removal of the ICL dismissed under Rule 10.27(2)(b)

Legislation Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 10.27(2)(b)

Division Division 1 First Instance

Number of paragraphs 8

Date of last submission 12 September 2023

Date of hearing 12 September 2023

Place Melbourne

Counsel for the applicant Ms McCreadie with Ms Dunlop

Solicitor for the applicant Higgins Legal

The respondent Litigant in person (Did not participate)

Counsel for the Independent Children's Lawyer Ms Treyvaud

Solicitor for the Independent Children's Lawyer Macgregor Barristers And Solicitors
ORDERS

MLC 9904 of 2015

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN
MR HARVIE

Applicant

AND
MS BEALE

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY

WILSON J

DATE OF ORDER

12 SEPTEMBER 2023

UPON THIS PROCEEDING coming before me for trial today AND UPON HEARING Ms McCreadie with Ms Dunlop of Counsel for the applicant, there being no appearance by or on behalf of the respondent despite her having been provided with a video link and requested at 10:24am today to appear electronically at 11:30am, she having produced no medical certificate to explain her absence and UPON ALSO HEARING Ms Treyvaud of counsel for the Independent Children’s Lawyer I ORDER as follows -
1.the respondent’s application in a proceeding dated 30 May 2023 for the removal of the Independent Children’s Lawyer is dismissed pursuant to rule 10.27(2)(b) of the Federal Circuit and Family Court of Australia (Family Law) Rules (2021);
2.the case will be listed before the Honourable The Chief Justice on 14 September 2023 at 10:00am;
3.the costs of the applicant and of the Independent Children’s Lawyer this day are reserved.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify…

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 Harvie & Beale

Details

AGLC: Harvie & Beale [2023] FedCFamC1F 782
Case: [2023] FedCFamC1F 782
Decision Date

CaseChat Overview and Summary

The case before the Federal Circuit and Family Court of Australia (Division 1) involves Mr Harvie, the applicant, and Ms Beale, the respondent, in a parenting dispute. The Independent Children’s Lawyer (ICL) is also a party to the proceedings. The matter, which had been scheduled for trial, faced complications due to the respondent's non-appearance and her attempts to remove the ICL. The applicant argued for the dismissal of the respondent's application to remove the ICL and sought an adjournment of the trial. The legal issues before the court were whether the respondent's application to remove the ICL should be dismissed and if the trial should proceed as scheduled.

Justice Wilson considered the respondent's conduct, which included her persistent refusal to participate in the proceedings, sending inappropriate and threatening emails to the court staff, and making last-minute claims of conflict of interest. The court noted that the respondent had ample opportunities to comply with the court's orders and provide necessary evidence but failed to do so. The respondent's attempt to assert a conflict of interest was deemed to be a delaying tactic. The court found that the respondent's application for the removal of the ICL was not supported by any valid grounds and was made in bad faith. Under Rule 10.27(2)(b) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, the court had the discretion to dismiss the respondent's application if she was in default.

The court dismissed the respondent's application to remove the ICL and ordered that the case proceed to trial. The court also made orders concerning the listing of the case before the Chief Justice and reserved the costs of the applicant and the ICL. The respondent's inappropriate conduct and failure to comply with the court's orders led to the dismissal of her application and the continuation of the trial as scheduled.

Orders