HUMPHREY & HUMPHREY - [2014] FCCA 456

FEDERAL CIRCUIT COURT OF AUSTRALIA

HUMPHREY & HUMPHREY

[2014] FCCA 456

Catchwords:
FAMILY LAW – Children – Parenting Orders – Interim Orders – Application to vary earlier interim parenting orders – where final hearing to take place in September 2014 – where Application misconceived – where evidence insufficient to vary or discharge existing parenting orders.

FAMILY LAW – Children – Independent Children’s Lawyer – where interests of children to be independently represented by a lawyer in accordance with Family Law Act 1975 (Cth) s.68L.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 60CF, 61DA, 62G, 65D, 65DAA, 67ZC, 68B, 68L, 114.

Mental Health (Forensic Provisions) Act 1990 (NSW) s.32

Cases cited:
Goode & Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286
Humphrey & Humphrey [2013] FMCAfam 199
Re K (1994) 17 Fam LR 537; FLC 92-461
L & T [1999] FamCA 1699; (1999) 25 Fam LR 590; FLC 92-875
Mortone & Mortone [2011] FamCA 309

Applicant:

MR HUMPHREY

Respondent:

MS HUMPHREY

File Number:

SYC 6843 of 2012

Judgment of:

Judge Scarlett

Hearing date:

3 March 2014

Date of Last Submission:

3 March 2014

Delivered at:

Sydney

Delivered on:

12 March 2014

REPRESENTATION

Solicitor for the Applicant:

Ms Carter

Solicitors for the Applicant:

GP Legal

The Respondent:

In person

ORDERS

The Application in a Case filed on 10 December 2013 is dismissed.
The Response to an Application in a Case filed on 26 February 2014 is dismissed.
The interests of the children [X] born [in] 1998 and [Y] born [in] 2000 are to be independently represented by a lawyer under the provisions of subsection 68L(2) of the Family Law Act 1975 and to this end Legal Aid New South Wales is requested to arrange this representation.
Within fourteen (14) days of the date of this Order the parties are to forward to Legal Aid New South Wales at 323 Castlereagh Street, Sydney, for the use of the Independent Children’s Lawyer when appointed, copies of:
(a)The Reasons for this Decision;
(b)The Reasons for the decision of this Court on 6 March 2013; and
(c)All Applications, Responses, Replies, affidavits and other relevant documents.
The Independent Children’s Lawyer when appointed is granted leave to issue up to ten (10) subpoenas without charge or further order.
The Independent Children’s Lawyer when appointed is granted liberty to apply to re-list this matter on seven (7) days’ notice.
The Application is otherwise adjourned to 10 September 2014 for Final Hearing.

IT IS NOTED that publication of this judgment under the pseudonym Humphrey & Humphrey is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 6843 of 2012

MR HUMPHREY

Applicant

And

MS HUMPHREY

Respondent

REASONS FOR JUDGMENT

Application

This is an Application by the Father of two children, a girl aged 15 and a boy who is nearly 14, to discharge interim parenting orders that were made after an interim hearing in March last year. He seeks an order that both…

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

AGLC: HUMPHREY & HUMPHREY [2014] FCCA 456
Case: [2014] FCCA 456
Decision Date: 12 March 2014

CaseChat Overview and Summary

In the matter of *Humphrey & Humphrey*, Judge Scarlett of the Family Court of Australia considered an application to vary earlier interim parenting orders. The dispute concerned the parenting arrangements for two children, with a final hearing scheduled for September 2014. The court found the application to vary the existing orders to be misconceived, deeming the evidence presented insufficient to justify any alteration or discharge of the current parenting arrangements.

The central legal issues before the court were whether the existing interim parenting orders should be varied or discharged, and the necessity of appointing an Independent Children’s Lawyer to represent the children's interests. The court was required to assess the evidence in light of the Family Law Act 1975 (Cth) and determine the appropriate course of action for the children's representation.

Judge Scarlett reasoned that the application to vary the interim orders lacked sufficient evidentiary support. The court applied the principle that interim orders should not be lightly discharged or varied without compelling reasons, particularly when a final hearing is imminent. Consequently, the court dismissed the application to vary the orders. Furthermore, in accordance with section 68L of the Family Law Act 1975, the court determined that the interests of the children required independent representation and ordered the appointment of an Independent Children’s Lawyer, requesting Legal Aid New South Wales to arrange this.

The court ordered the dismissal of the Application in a Case and the Response to an Application in a Case. It directed the parties to provide relevant documentation to the appointed Independent Children’s Lawyer and granted the lawyer leave to issue subpoenas without charge. The Independent Children’s Lawyer was also granted liberty to apply to relist the matter, and the application was otherwise adjourned to 10 September 2014 for the final hearing.

Orders

Orders of the court

The Application in a Case filed on 10 December 2013 is dismissed.

The Response to an Application in a Case filed on 26 February 2014 is dismissed.

The interests of the children [X] born [in] 1998 and [Y] born [in] 2000 are to be independently represented by a lawyer under the provisions of subsection 68L(2) of the Family Law Act 1975 and to this end Legal Aid New South Wales is requested to arrange this representation.

Within fourteen (14) days of the date of this Order the parties are to forward to Legal Aid New South Wales at 323 Castlereagh Street, Sydney, for the use of the Independent Children’s Lawyer when appointed, copies of:

(a) The Reasons for this Decision;

(b) The Reasons for the decision of this Court on 6 March 2013; and

The Independent Children’s Lawyer when appointed is granted leave to issue up to ten (10) subpoenas without charge or further order.

The Independent Children’s Lawyer when appointed is granted liberty to apply to re-list this matter on seven (7) days’ notice.

The Application is otherwise adjourned to 10 September 2014 for Final Hearing.

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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