HEATH & PASCALL - [2019] FCCA 2896

FEDERAL CIRCUIT COURT OF AUSTRALIA

HEATH & PASCALL

[2019] FCCA 2896

Catchwords:
FAMILY LAW – PRACTICE & PROCEDURE – Mother seeks discharge of current Independent Children’s Lawyer and a new Independent Children’s Lawyer be appointed – four day final hearing less than two months away.

Legislation:

Family Law Act 1975, s.102NA(1)(c)(iv)

Cases cited::

Dickens & Dickens [2016] FamCA 115
Horner & Horner [2018] FamCA 487
Lloyd & Lloyd and Child Representative (2000) FLC 93-045
Knibbs & Knibbs [2009] FamCA 840

Applicant:

MR HEATH

Respondent:

MS PASCALL

File Number:

BRC 8029 of 2018

Judgment of:

Judge Spelleken

Hearing date:

30 September 2019

Date of Last Submission:

30 September 2019

Delivered at:

Brisbane

Delivered on:

10 October 2019

REPRESENTATION

The Applicant appeared on his own behalf

The Respondent appeared on her own behalf

Counsel for the Independent Children’s Lawyer:

Ms Carmody

Solicitors for the Independent Children’s Lawyer:

Ms Chan of Legal Aid Queensland

ORDERS

That within fourteen (14) days of the date of this Order, the father is to provide the mother with copies the emails sent by him to X’s day care centre and to the Independent Children’s Lawyer.
That the application filed by the mother on 14 June 2019 for the Independent Children’s Lawyer to be discharged is dismissed.
That the Independent Children’s Lawyer is to issue a further subpoena to the C Contact Centre with the documents to be produced prior to the final hearing of this matter.

IT IS NOTED that publication of this judgment under the pseudonym Heath & Pascall is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 8029 of 2018

MR HEATH

Applicant

And

MS PASCALL

Respondent

REASONS FOR JUDGMENT

The Court is asked by an application in a case filed on behalf of the mother on 14 June 2019 to, amongst other things, remove the independent children’s lawyer, Ms Chan, and to replace her with another independent children’s lawyer. I will deal with that application later in these reasons, however I note that the mother sought other orders in her application in a case including an order that the father provide her with the birth photos via phone. The father, when the matter was before the Court on 30 September 2019, had a USB stick with the birth photos attached and I directed that the father provide those to the mother, which he did, and she accepted same. She raised an issue about whether all of the photos were on the USB stick however I informed her that after viewing them, if she had a concern that photos had been deleted or not provided, she could raise those concerns at trial.
Another order sought by the mother is that she have sole parental responsibility for X, who is now approximately 18 months old. I explained and the mother, to her credit, accepted that that is an issue for trial.
I pause here to record that the final hearing of this matter is…

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 HEATH & PASCALL

Details

AGLC: HEATH & PASCALL [2019] FCCA 2896
Case: [2019] FCCA 2896
Decision Date: 10 October 2019

CaseChat Overview and Summary

In the matter of *Heath & Pascall*, heard before Judge Spelleken, the dispute concerned parenting arrangements for a child, X. The mother had applied for the discharge of the Independent Children’s Lawyer (ICL), while the father was ordered to provide certain email correspondence.

The court was required to determine whether the ICL should be discharged from their role. Additionally, the court needed to consider the appropriate orders regarding the disclosure of communications between the father and X’s day care centre and the ICL, and the issuance of a further subpoena to a contact centre.

Judge Spelleken dismissed the mother's application to discharge the ICL, indicating that the ICL's continued involvement was deemed necessary. The court ordered the father to provide copies of emails sent to X’s day care centre and to the ICL within fourteen days. Furthermore, the ICL was directed to issue a further subpoena to the C Contact Centre for the production of documents prior to the final hearing.

Orders

Orders of the court

That within fourteen (14) days of the date of this Order, the father is to provide the mother with copies the emails sent by him to X’s day care centre and to the Independent Children’s Lawyer.

That the application filed by the mother on 14 June 2019 for the Independent Children’s Lawyer to be discharged is dismissed.

That the Independent Children’s Lawyer is to issue a further subpoena to the C Contact Centre with the documents to be produced prior to the final hearing of this matter.

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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