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 | of | 2010 |
| APPEAL NUMBER: | EA | 143 | of | 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…
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- Case
- [2014] FamCAFC 241
- Decision Date
CaseChat Overview and Summary
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
1.
The appellant’s application for an expedited hearing of the appeal be granted.
2.
The appellant’s application to adduce further evidence be dismissed.
3.
The appeal be dismissed.
4.
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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