Helbig & Rowe and Ors (No. 2) - [2014] FamCAFC 241

FAMILY COURT OF AUSTRALIA

HELBIG & ROWE AND ORS (NO. 2)

[2014] FamCAFC 241

FAMILY LAW – APPEAL – AMENDED NOTICE OF APPEAL – PROCEDURAL FAIRNESS – Where the trial judge, on application by the Independent Children’s Lawyer, made ex parte orders in chambers changing the care of the children from the mother to the father – Where the application was based on the opinion of a single expert psychiatrist – Where the mother was denied procedural fairness in the making of the ex parte orders – Where a final hearing is imminent – Where there is no utility in the appeal – Appeal dismissed.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the mother seeks to adduce further evidence on the appeal – Where the evidence is relevant for a re-exercise of the discretion – Application dismissed.

FAMILY LAW – APPEAL – COSTS – Where the respondent father seeks costs of the appeal – Where there is no basis for departure from general rule in s 117(1) of the Family Law Act 1975 (Cth) – No order for costs.

Family Law Act 1975 (Cth) ss 97(1), 97(1A), 117
Family Law Rules (Cth) rr 1.16, 1.17, 5.12, 5.13, 11.16

Harmont v Foster (1881) 8 QBD 82
Re J.R.L.; Ex parte C.J.L. (1986) 161 CLR 342

APPELLANT:

Ms Helbig

RESPONDENT:

Mr Rowe

INTERVENER:

Department of Family and Community Services (NSW)

INDEPENDENT CHILDREN’S LAWYER:

Susannah O’Reilly

FILE NUMBER:

PAC

5421

2010

APPEAL NUMBER:

143

2014

DATE DELIVERED:

16 December 2014

PLACE DELIVERED:

Canberra

PLACE HEARD:

Brisbane

JUDGMENT OF:

Bryant CJ, Finn & Strickland JJ

HEARING DATE:

3 December 2014

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

9 October 2014

LOWER COURT MNC:

[2014] FamCA 859

REPRESENTATION

THE APPELLANT:

In person

SOLICITOR FOR THE RESPONDENT:

Mr O’Sullivan

SOLICITOR FOR THE INTERVENER:

Ms Samuels

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms O'Rourke

Orders

The appellant’s application for an expedited hearing of the appeal be granted.
The appellant’s application to adduce further evidence be dismissed.
The appeal be dismissed.
There be no order for costs in relation to the appeal.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Helbig & Rowe and Ors (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: EA 143 of 2014
File Number: PAC 5421 of 2010

Ms Helbig

Appellant

And

Mr Rowe

Respondent

And

Independent Children’s Lawyer

And

Department of Family and Community Services (NSW)

Intervener

REASONS FOR JUDGMENT

Introduction

This is an appeal by Ms Helbig (“the mother”) against orders made by Cleary J on 9 October 2014 on the application of, and after hearing in Chambers only, the Independent Children’s Lawyer (“the ICL”). The effect of the orders was to immediately remove the two children (aged approximately nine and six years) of the mother’s relationship with Mr…

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: [2014] FamCAFC 241
Decision Date: 16 December 2014

CaseChat Overview and Summary

The appeal in Helbig & Rowe and Ors (No. 2) concerned the care of children, with the primary dispute arising from ex parte orders made by the trial judge altering the care arrangement from the mother to the father. The Independent Children’s Lawyer had applied for these changes based on the opinion of a single expert psychiatrist. The mother argued that she was denied procedural fairness during the making of these orders. The matter was brought before the court for appeal, with the final hearing approaching imminently.

The court had to address two main legal issues. Firstly, whether the mother was denied procedural fairness in the making of the ex parte orders, and secondly, whether there was utility in the appeal given the imminent final hearing. The court also considered an application by the mother to adduce further evidence on the appeal and an application by the father for costs of the appeal.

In dismissing the appeal, the court found that there was no procedural unfairness as the orders were made in the best interests of the children. The court also determined that there was no utility in proceeding with the appeal, given the imminent final hearing. Regarding the mother's application to adduce further evidence, the court dismissed it, stating that such evidence would not influence the re-exercise of the discretion in the final hearing. The father’s application for costs was also dismissed, as there was no basis to depart from the general rule under section 117(1) of the Family Law Act 1975 (Cth).

The orders made by the court were for the expedited hearing of the appeal to be granted, the mother’s application to adduce further evidence to be dismissed, the appeal to be dismissed, and no order for costs in relation to the appeal.

Orders

Orders of the court

The appellant’s application for an expedited hearing of the appeal be granted.

The appellant’s application to adduce further evidence be dismissed.

The appeal be dismissed.

There be no order for costs in relation to the appeal.

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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