Heyden & Lester - [2021] FedCFamC2F 447

Federal Circuit and Family Court of Australia
(DIVISION 2)
Heyden & Lester [2021] FedCFamC2F 447

File number(s): MLC 14204 of 2020

Judgment of: JUDGE HARLAND

Date of judgment: 24 November 2021

Catchwords: FAMILY LAW – Parenting – father has made multiple attempts to serve mother personally and by post – mother is on notice of proceedings and has been avoiding service – mother has failed to attend court on 4 occasions – arrest warrant to issue from chambers if mother fails to comply with orders.

Legislation: Family Law Act 1975, ss.11F, 62G
Federal Circuit and Family Court (Family Law) Rules 2021, r.5.09

Division: Division 2 Family Law

Number of paragraphs: 14

Date of hearing: 24 November 2021

Counsel for the Applicant: Mr Kelly

Solicitor for the Applicant: RM Commercial & Family Lawyers

Counsel for the Respondent: No Appearance
ORDERS

MLC 14204 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR HEYDEN

Applicant

AND:
MS LESTER

Respondent

order made by:

JUDGE HARLAND

DATE OF ORDER:

24 NOVEMBER 2021

THE COURT ORDERS THAT:
1.The proceeding is adjourned for Mention on 2 March 2022 at 9:30AM.
2.All parties are to note and comply with Central Practice Direction – Family Law Case Management paragraph 5.1-5.20 at
3.Pursuant to s.62G(2) of the Family Law Act 1975, the parties and the child X born in 2017 are directed to attend with a Court Child Expert (practicing under their appointment as a family consultant) nominated by the Court Children’s Service (the “Court Child Expert”) for the purposes of the preparation of a Child Impact Report at the date and times below, or as otherwise directed by the Court Child Expert.
4.Part 1 of the event will occur by video, using Microsoft Teams, on 22 February 2022, with:
(a)The applicant to attend at 9AM; and
(b)The respondent to attend at 10:30AM.

Microsoft Teams links will be provided to the parties prior by the Court Child Expert prior to the event.
5.Part 2 of the event will occur in person at the Melbourne Registry at the Commonwealth Law Courts, 305 William Street. Specific details regarding the attendance of the parties and the child on this date will be provided to the parties in Part 1 of the event.
6.Each party will do all things necessary to ensure the child attend upon the Court Child Expert pursuant to section 62G(3A), unless otherwise determined by the Court Child Expert that section 62G(3B) applies.
7.The parties and the child shall continue to attend at such times, dates and places as the Court Child Expert may advise.
8.Not later than 4PM on 22 January 2022 the parties must provide their contact telephone numbers and email addresses to VIC.CDS@fcfcoa.gov.au
9.Pursuant to order 3 herein, the Court Child Expert shall provide a written report to the Court and the report shall deal with the following matters:
(a)Any agreement reached between the parties;
(b)Identification of key issues requiring resolution
(c)Any views expressed by the child…

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 Heyden & Lester

Details

AGLC: Heyden & Lester [2021] FedCFamC2F 447
Case: [2021] FedCFamC2F 447
Decision Date

CaseChat Overview and Summary

The case of Heyden v Lester was heard in the Federal Circuit and Family Court of Australia, Division 2. The father, Mr Heyden, sought orders for contact with his son, X, who he had not seen since June 2018. The mother, Ms Lester, had been avoiding service and had failed to appear in court on multiple occasions. The father's attempts to serve the mother personally and by post had been unsuccessful, and an arrest warrant was to be issued if the mother failed to comply with orders. The court was required to decide whether the mother's failure to engage in the proceedings and avoid service was justified, and whether the father was entitled to seek contact with his son. The court found that the mother had been on notice of the proceedings and had been avoiding service. The father had made multiple attempts to serve the mother personally and by post, and the court found that the mother had failed to attend court on four occasions. The court held that the mother was required to engage in the proceedings and that an arrest warrant would issue if she failed to comply with orders. The court made orders for the parties and the child to attend a Child Impact Report preparation session and for the mother to file and serve various documents by a specified date. If the mother failed to comply with these orders, the court would issue an arrest warrant. The court also made orders for the parties to continue to attend at such times, dates and places as the Court Child Expert may advise. The court further ordered that the Child Dispute Conference originally listed to take place on 30 November 2021 be vacated. Finally, the court directed that a copy of the orders and reasons be posted to the respondent at her address. The court held that the mother had been given opportunities to engage in the proceedings, and that this would put her on notice as to what was required of her. The court's decision was a last resort, but the mother would leave the court with no choice if she did not engage in these proceedings. The court's orders were designed to ensure that the child's best interests were considered and that the father's rights as a parent were protected.

Orders