LAINHART & ELLINSON - [2020] FCCA 1877

FEDERAL CIRCUIT COURT OF AUSTRALIA

LAINHART & ELLINSON

[2020] FCCA 1877

Catchwords:
FAMILY LAW – Practice and procedure – change in operational requirements due to COVID-19 – parenting and property adjustment issues – whether hearing can properly and safely proceed by way of remote hearing – adjournment of proceedings – need for due process and procedural justice to be afforded to both parties in circumstances where subject child allegedly exposed to significant levels of family violence – need to balance potential unacceptable risk with unacceptable disadvantage in interruption and limitation of child’s relationship with father.

Legislation:

Federal Circuit Court Rules 2011 (Cth)

Federal Circuit Court Act 1976 (Cth), s.69

Cases cited:

R & Macdonald; R & Edward Obeid; R & Moses Obeid (No 11) [2020 NSWSC 382]

Capic v Ford Motor Company of Australia (Adjournment) [2020 FCA 486]
Re A(Children) (Remote Hearing: Care and Placement Orders) [2020] EWCA Civ 583
Re B(Children) (Remote Hearing: Interim Care Order) [2020] EWCA Civ 584
Gordon & Gordon [2015] FamCA 616
Rakielbakhour v DPP [2020] NSWSC 323
Allesch & Maunz [2000] HCA 40

Other resources:

Federal Circuit Court, Notice to the Profession, 9 April 2020

Federal Circuit Court, Joint Practice Direction 2 of 2020 – Special Measures in Response to COVID-19, 3 August 2020
M. Legg, & A. Song (2020). The courts and the pandemic: the role and limits of technology. Law Society Journal NSW, 66 May, 68–70

Applicant:

MS LAINHART

Respondent:

MR ELLINSON

File Number:

SYC 4512 of 2018

Judgment of:

Judge Harman

Hearing date:

7 May 2020

Date of Last Submission:

7 May 2020

Delivered at:

Parramatta

Delivered on:

7 May 2020

REPRESENTATION

Solicitors for the Applicant:

Broun Abrahams Burreket

Solicitors for the Respondent:

Ogge Law

Solicitors for the Independent Children’s Lawyer

Mark Whelan Lawyer

ORDERS

Vacate the scheduled hearing of these proceedings listed 15 June 2020 – 18 June 2020.
Pursuant to section 13C of the Family Law Act1975 the Independent Children’s Lawyer (if appointed) and the parties and each of them shall forthwith and within seven (7) days contact the intake officer of the Legal Aid Commission Early Intervention Unit for the purpose of arranging and attending the first available and offered intake appointment for the assessment of suitability for Family Dispute Resolution and, subject to the assessment of suitability, each party (and the Independent Children’s Lawyer) shall then attend at such times, dates and places as may be advised to participate in and complete Family Dispute Resolution at a timing determined by the Independent Children’s Lawyer in light of the following Order.
Pursuant to section 13C of the Family Law Act1975 (Cth), the parties and the shall engage in Family Counselling or Family Therapy services (in the latter case at the expense of the parties) as nominated by the Independent Children’s Lawyer and each party shall then:
(a)Attend at such times, dates and places as may be advised; and
(b)Pay such fees as may be charged;
to participate in and complete such sessions of…

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 LAINHART & ELLINSON

Details

AGLC: LAINHART & ELLINSON [2020] FCCA 1877
Case: [2020] FCCA 1877
Decision Date: 7 May 2020

CaseChat Overview and Summary

In the proceedings before Judge Harman, the parties, identified as Lainhart and Ellinson, were involved in a dispute concerning their children. The court was tasked with determining the appropriate course of action to facilitate resolution and ensure the children's best interests were paramount.

The central legal issues before the court involved the mandatory engagement of the parties in Family Dispute Resolution and Family Counselling or Therapy. Specifically, the court needed to determine how these processes should be initiated, attended, and funded, and what steps should be taken if such services were deemed inappropriate or declined. The court also considered the role of the Independent Children's Lawyer in this process, including their authority to nominate services and provide relevant reports.

Judge Harman ordered that the scheduled hearing be vacated and directed the parties, along with any appointed Independent Children's Lawyer, to engage with the Legal Aid Commission's Early Intervention Unit within seven days to arrange and attend an intake appointment for Family Dispute Resolution. Following this assessment, and subject to suitability, the parties were to participate in Family Dispute Resolution as advised. Furthermore, the parties were ordered to engage in Family Counselling or Therapy services nominated by the Independent Children's Lawyer, attending as advised and bearing the associated costs. The court also stipulated that if services were deemed inappropriate or declined, the service provider was requested to advise the court in writing. Leave was granted to the Independent Children's Lawyer to provide a specific report to any engaged counselling or therapy service. The matter was adjourned for further call over.

Orders

Orders of the court

Vacate the scheduled hearing of these proceedings listed 15 June 2020 – 18 June 2020.

Pursuant to section 13C of the Family Law Act 1975 the Independent Children’s Lawyer (if appointed) and the parties and each of them shall forthwith and within seven (7) days contact the intake officer of the Legal Aid Commission Early Intervention Unit for the purpose of arranging and attending the first available and offered intake appointment for the assessment of suitability for Family Dispute Resolution and, subject to the assessment of suitability, each party (and the Independent Children’s Lawyer) shall then attend at such times, dates and places as may be advised to participate in and complete Family Dispute Resolution at a timing determined by the Independent Children’s Lawyer in light of the following Order.

Pursuant to section 13C of the Family Law Act 1975 (Cth), the parties and the shall engage in Family Counselling or Family Therapy services (in the latter case at the expense of the parties) as nominated by the Independent Children’s Lawyer and each party shall then:

(a) Attend at such times, dates and places as may be advised; and

(b) Pay such fees as may be charged;

to participate in and complete such sessions of Family Counselling or Family Therapy as are assessed as suitable and offered.

In the event that the provision of service is determined to be inappropriate or service is withdrawn or declined then the Family Counsellor or agency providing same is requested, pursuant to s.13D, to advise the Court in writing of that fact.

The matter is adjourned for further call over to 7 August 2020 at 10.00am.

Leave is granted to the Independent Children’s Lawyer to provide a copy of report of Dr B to any Family Counselling or Family Therapy Service engaged in the proceedings.

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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