Jelbart and Ganzer

Case [2018] FCCA 1771


0FEDERAL CIRCUIT COURT OF AUSTRALIA

JELBART & GANZER [2018] FCCA 1771
Catchwords:
FAMILY LAW – Parenting – interim proceedings – procedural issues of lack of available hearing time and matter determined “on the papers” – multiple opportunities given to Mother to provide written submissions to address her “issues” with the recommendations of a Family Consultant who prepared a detailed report (which included putting the child under “stress tests”) and who recommended a regime that provided for the gradual increase in the child’s time with the Father – the only “issue” between the parties relates to the increase in the child’s time with the Father – strained co-parenting relationship between the parties as well as during the relationship – primary independent evidence before the Court is from the Expert family consultant whose Report was prepared in July 2017 – barely any movement in the progress of the child’s time with the Father – usual problems of a Court placed in invidious position of “she said – he said” and little independent evidence – Family Consultant took relevant account of allegations of domestic violence – issues of “weight” of evidence in interim proceedings and procedural fairness in providing for matter to be dealt with “on the papers” in the absence and inability to provide early hearing time.

Legislation:

Family Law Act 1975 (Cth), ss.60CA, 60CC(3),65DAA

Federal Circuit Court of Australia Act 1999 (Cth), ss.3(2)(b), 15, 42, 56
Federal Circuit Court Rules 2001 (Cth), r.1.03

Cases cited:

AMS v AIF (1999) 199 CLR 160

Aon Risk Services Ltd v Australian National University (2009) 239 CLR 175
Banks & Banks (2015) FLC 93-637
Blanding v Blanding (2017) 55 Fam LR 218
Condon v Pompano Pty Ltd (2013) 252 CLR 38

Expense Reduction Analyst Group Pty Limited v Armstrong Strategic
Management and Marketing Pty Limited (2013) 250 CLR 303.
Goode v Goode (2006) 206 FLR 212; (2007) 36 Fam LR 422
House v R (1936) 55 CLR 499

Jopson & Lilwall [2016] FamCAFC 262
Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam (2003) 214 CLR 1

Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475
National Companies and Securities Commission v The News Corporation Ltd (1984) 156 CLR 296

Redmond & Redmond [2014] FamCAFC 155
Russell v Duke of Norfolk [1949] 1 All ER 109
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152

Swain v Waverley Municipal Council (2005) 220 CLR 517

Vanzin & Vanzin [2014] FamCAFC 245
VR v RR [2002] FamCA 230

Applicant: MR JELBART
Respondent: MS GANZER
File Number: CAC 144 of 2015
Judgment of: Judge Neville
Hearing date: By Written Submissions
Date of Last Submission: 10 April 2018
Delivered at: Canberra
Delivered on: 1 June 2018

REPRESENTATION

Solicitors for the Applicant: Yeend & Associates
Solicitors for the Respondent: Dobinson Davey Clifford Simpson

ORDERS

  1. Within 7 days of the date of these Orders, being by close of business on 8 June 2018, the parties…

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Jelbart and Ganzer [2018] FCCA 1771
Case
[2018] FCCA 1771
Decision Date

CaseChat Overview and Summary

In the matter of *Jelbart and Ganzer*, heard by Judge Neville, the dispute concerned interim consent orders relating to the welfare of children. The parties were required to present an agreed Minute of Interim Consent Orders to the Court, or in the alternative, the Court would make orders based on the Father's application, which aligned with the recommendations of a Family Report.

The central legal issue before the Court was to determine the appropriate interim orders for the children, taking into account the recommendations of a Family Consultant and the passage of time since the report was released. The Court needed to decide whether the parties could reach an agreement on these orders, or if it would need to impose its own orders based on the existing report and the Father's proposed terms.

Judge Neville's reasoning focused on facilitating an agreement between the parties that reflected the Family Consultant's recommendations, adjusted for the eight months that had elapsed since the report's release. The Court indicated that if the parties could not agree, it would make orders in Chambers that substantially mirrored the Family Report's recommendations, with necessary temporal adjustments. The Court's approach underscored the importance of child welfare and the court's role in ensuring timely and appropriate arrangements for children in family law proceedings.

Orders

Orders of the court

1.

Within 7 days of the date of these Orders, being by close of business on 8 June 2018, the parties are to provide the Court with an agreed Minute of Interim Consent Orders which (a) implement the recommendations of the Family Consultant, adjusted for the months that have lapsed since its release, and (b) provide for the procedural course this matter should take.

2.

Absent agreement between the parties in relation to the Minute referred to at Order 1 of these Orders, the Orders Sought by the Father (which accord with the recommendations of the Family Report) will be made in Chambers, with adjustments for the 8 month time lapse between the date the Report was released and the date of the Orders.

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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