JACOBS & FAULKNER (No.2) - [2012] FMCAfam 1515

FEDERAL MAGISTRATES COURT OF AUSTRALIA

JACOBS & FAULKNER (No.2)

[2012] FMCAfam 1515

FAMILY LAW – Parenting – interim orders – difficulties of time and distance – disclosures made by young child about Father – further interim parenting orders – conduct of Father’s solicitors – impact of appeal on proceedings – provisional admission of expert report obtained by Father where there is already a report from court-appointed expert – superfluous submissions.

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC(1) & (2), 60CC(3), 60CC (3)(a) – (d), (f), (i)
Federal Circuit Court of Australia Rules 2001, r.15.12

Byrd v Byrd (2012) 46 Fam LR 511
Collu & Rinaldo [2010] FamCAFC 53
Faulkner & Jacobs [2013] FamCAFC 83
G & G (A law firm) & McMurphy (2012) FamCAFC 134
Harris v Villacare Pty Ltd [2012] NSWSC 452
Jacobs & Faulkner [2012] FMCAfam 1015
Lindsay & Baker [2012] FamCAFC 189
McCall & Clark (2009) 41 Fam LR 483
Maluka v Maluka (2012) 45 Fam LR 129
Mazorski v Albright (2007) 37 Fam LR 518
Modra (by his next friend, Modra) v Victoria (Department of Education and Early Childhood Development and Department of Human Services) (2012) 291 ALR 429
Moose & Moose (2008) FLC ¶93-375
Rakete v Rakete (2013) 48 Fam LR 325
Shaeffer v Jacobs (2011) FLC ¶93-468

Sigley v Evor (2011) 44 Fam LR 439

Applicant:

MS JACOBS

Respondent:

MR FAULKNER

File Number:

CAC 130 of 2011

Judgment of:

Neville FM

Hearing date:

Written Submissions

Date of Last Submission:

7 December 2012

Delivered at:

Canberra

Delivered on:

17 December 2012

REPRESENTATION

Counsel for the Applicant:

N/A

Solicitors for the Applicant:

Schetzer Constantinou
Melbourne

Solicitor/Advocate for the Respondent:

Mr Naumann

Solicitors for the Respondent:

Walsh & Blair, Wagga Wagga

Independent Children’s Lawyer:

Ms N

Legal Aid NSW
Wagga Wagga

ORDERS

Parenting Orders

Further interim parenting orders in relation to the children X (born 2 July 2004) & Y (born 4 July 2008) be as per annexure A to these orders.

Dr K's Report

The Report of Dr K, filed in these proceedings on behalf of the Father, shall be provisionally admitted for the sole purpose of forwarding it to Dr L for comment.
For the purposes of order 2 of these orders, the ICL is requested to forward to Dr L a copy of Dr K's report and further, to request Dr L to provide a note to the Court to advise whether any of the recommendations of Dr L set out in his Report dated 1st June 2012 (Exhibit B) are affected by the contents of Dr K's report, and if so, in what way.
For the purposes of order 3 of these orders, the request to the ICL in relation to Dr K's report is to await the determination of the appeal filed by the Father in these proceedings on 19th October 2012.

Updated Family Report

Pursuant to section 62G(2) of the Family Law Act1975 (‘the Act’) the parties and the children of the relationship attend upon a family consultant…

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 JACOBS & FAULKNER (No.2)

Details

AGLC: JACOBS & FAULKNER (No.2) [2012] FMCAfam 1515
Case: [2012] FMCAfam 1515
Decision Date: 17 December 2012

CaseChat Overview and Summary

The case of Jacobs & Faulkner (No.2) involved parties in a dispute over parenting arrangements for their children, X and Y. The matter was heard in the Family Court of Australia. The primary legal issues revolved around the interim parenting orders for the children, the admission of expert reports for assessment, and the conduct of future proceedings. The court was required to decide on the appropriate interim parenting arrangements, the admissibility of a specific expert report for the purpose of forwarding it to another expert for comment, and the preparation of a family report pending the outcome of an appeal.

The court's reasoning began with the interim parenting orders for the children, which were detailed in an annexure to the orders. The court considered it necessary to forward the report of Dr K, filed by the father, to Dr L for comment, given its relevance to the proceedings. The court also noted the need to await the determination of an appeal filed by the father before proceeding with certain actions. Additionally, the court mandated that a family report be prepared, addressing specific issues as required by the Family Law Act, to assist in the resolution of the case. The court also directed that the parties and the Independent Children’s Lawyer provide written confirmation regarding the continuation of trial dates, with a specific deadline set for such submissions.

The final outcome included specific parenting orders for the children, provisional admission of the father’s expert report for comment, and instructions for the preparation of a family report. The court also directed that certain judgments and transcripts be provided to the father and confirmed by his solicitor. The court scheduled further steps and deadlines for the submission of reports and comments, pending the resolution of an ongoing appeal. These orders aimed to ensure that all relevant parties were informed and prepared to proceed with the case effectively.

Orders

Orders of the court

Parenting Orders

Further interim parenting orders in relation to the children X (born 2 July 2004) & Y (born 4 July 2008) be as per annexure A to these orders.

Dr K's Report

The Report of Dr K, filed in these proceedings on behalf of the Father, shall be provisionally admitted for the sole purpose of forwarding it to Dr L for comment.

For the purposes of order 2 of these orders, the ICL is requested to forward to Dr L a copy of Dr K's report and further, to request Dr L to provide a note to the Court to advise whether any of the recommendations of Dr L set out in his Report dated 1st June 2012 (Exhibit B) are affected by the contents of Dr K's report, and if so, in what way.

For the purposes of order 3 of these orders, the request to the ICL in relation to Dr K's report is to await the determination of the appeal filed by the Father in these proceedings on 19th October 2012.

Updated Family Report

Pursuant to section 62G(2) of the Family Law Act 1975 (‘the Act’) the parties and the children of the relationship attend upon a family consultant nominated by the Dispute Resolution Coordinator of this Court on a date and at times to be advised for the purposes of the preparation of a Family Report addressing the issues identified in section 60CC of the Act, pending the determination of the appeal lodged by the Father on 19th October 2012.

Future Conduct of the Proceedings

By 12 noon on 18th December 2012, the parties and the ICL are requested to confirm to the Court in writing, by a note not exceeding one (1) page, whether (and if so why or why not) the currently listed trial dates commencing 8th May 2013, should be vacated. Whether the trial dates should be vacated, as indicated by the Court, shall be determined 'on the papers' in Chambers. In the absence of any submission of the specified length being filed by the date and time specified, the maxim 'silence will be taken to indicate consent' (qui tacet consentire videtur) shall apply.

Notation & Direction (in Chambers)

A. The Court directs that, within 14 days of the date of the Father’s return to Australia (or 20th September 2013 – which-ever is the earlier date), the solicitor for the Father provide the Father with copies of all judgments of this Court delivered in these proceedings, together with the judgment of the Full Court of the Family Court of Australia and the transcript of the hearing before the Full Court.

B. The Court further directs that, by 18th October 2013, the solicitor for the Father confirm to the Court in writing that the judgments and transcript referred to in Notation A have been so provided to the Father.

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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