JEFFS & MARSHALL (No.3) - [2019] FCCA 58

FEDERAL CIRCUIT COURT OF AUSTRALIA

JEFFS & MARSHALL (No.3)

[2019] FCCA 58

Catchwords:
FAMILY LAW – Parenting – application for stay of interim orders pending appeal – stay granted on terms.

Legislation:

Family Law Act 1975, s.91B

Cases cited:

Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106

Pettit & Anor & Fairs & Anor(No.2) [2017] FCCA 98

Applicant:

MS JEFFS

Respondent:

MR MARSHALL

File Number:

MLC 7616 of 2016

Judgment of:

Judge Harland

Hearing date:

10 January 2019

Date of Last Submission:

10 January 2019

Delivered at:

Melbourne

Delivered on:

10 January 2019

REPRESENTATION

Counsel for the Applicant:

Ms Teicher

Solicitors for the Applicant:

Cathleen Corridon

Counsel for the Respondent:

Ms Healey

Solicitors for the Respondent:

Counsel for the Independent Children’s Lawyer:

Solicitors for the Independent Children’s Lawyer:

CBD Family Lawyers

Ms Devine

Altavilla Family Law

ORDERS

The Independent Children’s Lawyer be granted leave to issue a subpoena for Ms A, Town K CSC at short notice.
The Independent Children’s Lawyer be granted leave for the subpoena to be served on Ms A by email.
The Independent Children’s Lawyer to provide a copy of the s.91B response from the New South Wales Family and Community Services department to Ms B.
The Respondent’s solicitor forward to Dr C a copy of the Family Report of Ms B filed 25 September 2018, a copy of the Contact Reports of Contact Centre filed 30 October 2018 and the Reasons for Judgment of Her Honour Judge Harland delivered 13 December 2018.
The Orders 1 to 4 of the Orders made 13 December 2018 be stayed pending further order.
The parties and children attend upon Dr C at Suburb D on 11 January 2019 and the parties follow the directions and recommendations of Dr C for the purposes of therapeutic support and assistance with transitioning the children from the mother’s care to the father.
If the transition referred to in Order 6 is successful, the children spend time with the father, supervised by the paternal aunt, from the time at Dr C’s office until 7:00pm that day with the children to be returned to the mother or her nominee at Dr C’s office or the nearest McDonalds as agreed between the parties or failing agreement, as nominated by the Independent Children’s Lawyer.
The application in a case filed 28 December 2018 be otherwise dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Jeffs & Marshall (No.3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 7616 of 2016

MS JEFFS

Applicant

And

MR MARSHALL

Respondent

REASONS FOR JUDGMENT

These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
This is an application by the mother seeking a stay of the interim orders that I made on 13 December 2018 pending the determination of her…

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 JEFFS & MARSHALL (No.3)

Details

AGLC: JEFFS & MARSHALL (No.3) [2019] FCCA 58
Case: [2019] FCCA 58
Decision Date: 10 January 2019

CaseChat Overview and Summary

In the matter of JEFFS & MARSHALL (No.3), Judge Harland of the Federal Circuit Court of Australia considered an application concerning children's welfare. The dispute involved the parents' arrangements for their children, with the Independent Children's Lawyer playing a significant role in advocating for the children's best interests.

The court was required to determine several procedural and substantive issues. These included whether to grant the Independent Children's Lawyer leave to issue a subpoena to a Ms A at short notice and to permit service of that subpoena by email. The court also had to consider the provision of specific documents to parties and a Dr C, and whether to stay previous orders. Furthermore, the court was tasked with making directions regarding the children's attendance upon Dr C for therapeutic support and assistance with transitioning their care to the father, and the subsequent supervised time with the father if the transition was successful.

Judge Harland's reasoning involved balancing the need for timely information gathering with procedural fairness and the paramount consideration of the children's best interests. The court granted leave for the subpoena to be issued and served by email, acknowledging the urgency. Directions were made for the disclosure of relevant reports and judgments to facilitate the ongoing assessment and therapeutic process. Crucially, the court ordered that the children attend upon Dr C for therapeutic support and to assist with the transition of care to the father, with specific provisions for supervised time with the father should that transition prove successful. The application filed on 28 December 2018 was otherwise dismissed.

Orders

Orders of the court

The Independent Children’s Lawyer be granted leave to issue a subpoena for Ms A, Town K CSC at short notice.

The Independent Children’s Lawyer be granted leave for the subpoena to be served on Ms A by email.

The Independent Children’s Lawyer to provide a copy of the s.91B response from the New South Wales Family and Community Services department to Ms B.

The Respondent’s solicitor forward to Dr C a copy of the Family Report of Ms B filed 25 September 2018, a copy of the Contact Reports of Contact Centre filed 30 October 2018 and the Reasons for Judgment of Her Honour Judge Harland delivered 13 December 2018.

The Orders 1 to 4 of the Orders made 13 December 2018 be stayed pending further order.

The parties and children attend upon Dr C at Suburb D on 11 January 2019 and the parties follow the directions and recommendations of Dr C for the purposes of therapeutic support and assistance with transitioning the children from the mother’s care to the father.

If the transition referred to in Order 6 is successful, the children spend time with the father, supervised by the paternal aunt, from the time at Dr C’s office until 7:00pm that day with the children to be returned to the mother or her nominee at Dr C’s office or the nearest McDonalds as agreed between the parties or failing agreement, as nominated by the Independent Children’s Lawyer.

The application in a case filed 28 December 2018 be otherwise dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.