Henley and Henley - [2017] FamCA 1133

FAMILY COURT OF AUSTRALIA

HENLEY & HENLEY

[2017] FamCA 1133

FAMILY LAW – EVIDENCE – Family Report – Where the proceedings were remitted after appeal for re-hearing to determine the time the child should spend with the father – Where the father sought the disqualification of the existing Family Consultant due to actual or apprehended bias and the prior Family Report be given no weight – Where there is no proper basis to demonstrate actual or apprehended bias – Ordered a Family Consultant chosen by the Director of the Child Dispute Services within the Adelaide Registry of the Court prepare an update Family Report concerning the child of the parties – Ordered all outstanding applications for interim or procedural relief are dismissed

Family Law Act 1975 (Cth) s 62G

Arndale & Kingley(No. 3) [2011] FamCAFC 128

APPLICANT:

Mr Henley

RESPONDENT:

Ms Henley

FILE NUMBER:

ADC

1876

2014

DATE DELIVERED:

30 November 2017

PLACE DELIVERED:

Newcastle/Adelaide

PLACE HEARD:

Newcastle/Adelaide

JUDGMENT OF:

Austin J

HEARING DATE:

30 November 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Not Applicable

SOLICITOR FOR THE APPLICANT:

Not Applicable

COUNSEL FOR THE RESPONDENT:

Not Applicable

SOLICITOR FOR THE RESPONDENT:

Mr Alevizos

Orders

Pursuant to s 62G of the Family Law Act, a Family Consultant chosen by the Director of the Child Dispute Services within the Adelaide Registry of the Family Court of Australia shall prepare and furnish to the Court a fresh Family Report concerning the child of the parties, touching upon those matters of relevance to the care, welfare, and development of the child.

In order to facilitate preparation of the family report:

a.Each party must attend upon the Family Consultant for such interviews and observation sessions at such times and places nominated by the Family Consultant;
b.Each party must ensure the attendance of the child at such interviews and observation sessions at such times and places nominated by the Family Consultant; and
c.The Family Consultant is granted leave to inspect the Court file and all documents produced on subpoenae.

The proceedings are adjourned until 9:00 am Adelaide time (9:30 am EST) on Tuesday, 13 March 2018, in the Adelaide Registry of the Family Court of Australia (via video link with Justice Austin in the Newcastle Registry of the Family Court of Australia), for further procedural directions.
Save as to costs, otherwise:

a.The Application in a Case filed on 31 October 2017 is dismissed;
b.The Response to an Application in a Case filed on 23 November 2017 is dismissed; and
c.Any and all other outstanding applications for interim or procedural relief are dismissed.

No order as to costs.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Henley & Henley has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to…

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 Henley and Henley

Details

AGLC: Henley and Henley [2017] FamCA 1133
Case: [2017] FamCA 1133
Decision Date: 30 November 2017

CaseChat Overview and Summary

In the matter of *Henley and Henley*, Austin J of the Family Court of Australia considered an application concerning the care and welfare of a child of the parties. The specific nature of the dispute leading to this application is not detailed, but the orders indicate a focus on obtaining expert advice regarding the child.

The primary legal issue before the Court was the need for a comprehensive and up-to-date assessment of the child's care, welfare, and development. To address this, the Court was required to determine the appropriate mechanism for obtaining such an assessment and the directions necessary to facilitate it.

Austin J ordered that a Family Consultant, selected by the Director of Child Dispute Services, prepare a fresh Family Report. This report was to address all matters relevant to the child's care, welfare, and development. To enable the Family Consultant to prepare the report, both parties were directed to attend interviews and observation sessions with the consultant, and to ensure the child's attendance. The Family Consultant was also granted leave to inspect the court file and subpoenaed documents. The proceedings were adjourned for further procedural directions, and the parties' applications for interim or procedural relief were dismissed, with no order as to costs.

Orders

Orders of the court

Pursuant to s 62G of the Family Law Act, a Family Consultant chosen by the Director of the Child Dispute Services within the Adelaide Registry of the Family Court of Australia shall prepare and furnish to the Court a fresh Family Report concerning the child of the parties, touching upon those matters of relevance to the care, welfare, and development of the child.

In order to facilitate preparation of the family report:

a. Each party must attend upon the Family Consultant for such interviews and observation sessions at such times and places nominated by the Family Consultant;

b. Each party must ensure the attendance of the child at such interviews and observation sessions at such times and places nominated by the Family Consultant; and

c. The Family Consultant is granted leave to inspect the Court file and all documents produced on subpoenae.

The proceedings are adjourned until 9:00 am Adelaide time (9:30 am EST) on Tuesday, 13 March 2018, in the Adelaide Registry of the Family Court of Australia (via video link with Justice Austin in the Newcastle Registry of the Family Court of Australia), for further procedural directions.

Save as to costs, otherwise:

a. The Application in a Case filed on 31 October 2017 is dismissed;

b. The Response to an Application in a Case filed on 23 November 2017 is dismissed; and

c. Any and all other outstanding applications for interim or procedural relief are dismissed.

No order as to costs.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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