Helbig & Rowe - [2014] FamCAFC 179

FAMILY COURT OF AUSTRALIA

HELBIG & ROWE

[2014] FamCAFC 179

FAMILY LAW – APPEAL – Where further parenting proceedings commenced after final parenting orders were made by consent – Where leave to appeal interlocutory order relating to practice and procedure is necessary – Where a dispute arose as to the documents to be provided to the independent expert – Where the primary judge excluded from the list of documents to be sent to the expert certain counselling notes – Where the single expert can make an application requesting further documents if needed – Leave to appeal refused.

FAMILY LAW – APPEAL – Where interlocutory order for children to spend supervised time – Where allegations of abuse raised against parent to be supervised – Where the primary judge proceeded on the basis the disclosures were serious and required caution – Where the primary judge was entitled to analyse the risks to the children as she did – Where the primary judge is entitled to take objections in relation to admissibility of evidence – Appeal dismissed.

Family Law Act 1975 (Cth): ss 117, 94AA, 69ZT

Family Law Regulations 1984 (Cth): r 15A
Family Law Rules 2004 (Cth): r 15.60

CDJ v VAJ (1998) 197 CLR 172
Child Support Registrar & Crabbe and Anor (2014) FLC 98-062
Gronow v Gronow (1979) 144 CLR 513
Metwally v University of Wollongong (1985) 60 ALR 68
Rutherford & Rutherford (1991) FLC 92-255
Taffa & Taffa [2014] FamCAFC 106

APPELLANT:

Ms Helbig

RESPONDENT:

Mr Rowe

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

FILE NUMBER:

PAC

5421

2010

APPEAL NUMBER:

115

2014

APPEAL NUMBER:

116

2014

ORDERS MADE:

5 September 2014 and 17 September 2014

DATE DELIVERED:

17 September 2014

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ainslie-Wallace, Ryan & Johnston JJ

HEARING DATE:

5 September 2014

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATES:

30 July 2014 and 13 August 2014

LOWER COURT MNCS:

[2014] FamCA 751

REPRESENTATION

FOR THE APPELLANT:

Ms Helbig in Person

COUNSEL FOR THE RESPONDENT:

Mr O’Sullivan

SOLICITOR FOR THE RESPONDENT:

Family Law Legal

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms O’Rourke

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW, Newcastle

THE DEPARTMENT OF FAMILY AND COMMUNITY SERVICES:

Ms C Samuels

Orders made 5 September 2014

Appeal EA 116 of 2014 being the appeal against order 13 of Cleary J made on 30 July 2014 be dismissed.
That the application for leave to appeal order 5.14 of Cleary J made on

13 August 2014 from Appeal EA 115 of 2014 be dismissed.
The Application in an Appeal filed by the appellant mother on 4 September 2014 be dismissed.

Orders made 17 September 2014

The appellant mother pay the respondent father’s costs of and incidental to the appeal, her application for leave to appeal and her Application in an Appeal filed on 4 September 2014, such costs to be agreed, or failing agreement, as assessed.
The appellant mother pay the Independent Children’s Lawyer’s costs…

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 Helbig & Rowe

Details

AGLC: Helbig & Rowe [2014] FamCAFC 179
Case: [2014] FamCAFC 179
Decision Date: 17 September 2014

CaseChat Overview and Summary

In the matter of Helbig & Rowe, the court was called upon to consider the proceedings that arose between the parties following the making of final parenting orders by consent. The appellant, the mother, sought leave to appeal an interlocutory order relating to practice and procedure, and the respondent, the father, objected to the appeal. The court had to determine whether the mother had the right to appeal the interlocutory order and, if so, whether leave to appeal should be granted. Additionally, the court was tasked with examining an interlocutory order that mandated supervised time for the children, in light of allegations of abuse against the mother, and whether the primary judge's analysis of the situation was correct.

The court considered the necessity of leave to appeal an interlocutory order, emphasising the importance of the counselling notes in question. It noted that the primary judge had excluded certain counselling notes from the list of documents to be sent to the expert, but the single expert retained the authority to request further documents if necessary. The court concluded that the primary judge's decision to exclude the counselling notes was within their discretion, and that the mother's appeal against this decision was not justified.

Regarding the interlocutory order for supervised time, the court found that the primary judge was entitled to proceed on the basis that the allegations of abuse were serious and required caution. The court upheld the primary judge's analysis of the risks to the children and their right to consider objections in relation to the admissibility of evidence. Consequently, the court dismissed the appeal, affirming the primary judge's decisions in both instances.

No further orders were made by the court beyond dismissing the appeal. The interlocutory order for supervised time remained in place, and the exclusion of certain counselling notes from the list of documents to be sent to the expert was upheld.

Orders