Magee and Pearse - [2016] FCCA 2482

FEDERAL CIRCUIT COURT OF AUSTRALIA

MAGEE & PEARSE

[2016] FCCA 2482

Catchwords:
FAMILY LAW – Parenting – deep animus between the parents – effect on young child – whether the Father’s time should be supervised.

Legislation:

Family Law Act 1975, ss.60C(3), 60CA, 60C(2)A

Tait & Densmore [2007] FamCA 1383

Applicant:

MR MAGEE

Respondent:

MS PEARSE

File Number:

DGC 3377 of 2014

Judgment of:

Judge Small

Hearing date:

22 June 2016

Date of Last Submission:

22 June 2016

Delivered at:

Morwell

Delivered on:

24 June 2016

REPRESENTATION

Counsel for the Applicant:

Mr Magee in person

Counsel for the Respondent:

Ms Stavrakakis

Solicitors for the Respondent:

Victoria Legal Aid

Counsel for the Independent Children's Lawyer:

Ms Taylor

Solicitors for the Independent Children's Lawyer:

Julie Taylor

ORDERS

The matter be adjourned to the Duty List of Federal Circuit Court of Australia in the Gippsland sittings at Morwell in the week commencing 21 November 2016 at 10:00am for Directions.
The matter be adjourned to Federal Circuit Court of Australia in the Gippsland sittings at Morwell in February 2017 for Final Hearing, with an estimated hearing time of 2 days (“the Final Hearing”).
In the event of any applicable filing, setting down, mediation or enforcement fee or fees (“the Fees”) not having been waived, the party responsible for the payment of the Fees or any of them do pay or cause to be paid such of the Fees as shall be payable by that party in accordance with, and within the time specified in the Family Law (Fees) Regulation 2012.
Both the Applicant and the Respondent make, file and serve on each party by no later than 4.00 pm, fourteen (14) days prior to the Final Hearing:
(a)one affidavit setting out any further evidence in chief; and
(b)one affidavit of each witness intended to be relied upon at the Final Hearing.
The Independent Children’s Lawyer make, file and serve on each other party by no later than 4.00 pm, seven (7) days prior to the Final Hearing:
(a)one affidavit setting out any further evidence in chief; and
(b)one affidavit of each witness intended to be relied upon at the Final Hearing.
Each party and the Independent Children’s Lawyer must make, file and serve an Outline of Case document by no later than 4.00 pm, two (2) days prior to the Final Hearing, including the following:
(a)a list of the documents to be relied upon;
(b)a brief chronology;
(c)an outline of contentions with respect to:
(i)whether the presumption of equal shared parental responsibility applies (s.61DA),
(ii)the considerations relevant to equal time and substantial and significant time (s.65DAA);
(iii)each of the considerations relevant to determining the best interests of the child(ren) (s.60CC factors);
(iv)other relevant considerations (including, ss.60CG, 61F, 65DAB, 65DAC, etc); and
(v)any other matters relevant to the decision; and
(vi)a statement of the precise orders sought.
No party shall be entitled to rely on any affidavit material filed after the above deadlines without leave of the Court.
If either party is to have…

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 Magee and Pearse

Details

AGLC: Magee and Pearse [2016] FCCA 2482
Case: [2016] FCCA 2482
Decision Date: 24 June 2016

CaseChat Overview and Summary

This matter came before Judge Small of the Federal Circuit Court of Australia concerning parenting arrangements for a child. The proceedings involved an applicant and a respondent, with an Independent Children's Lawyer also appointed to represent the child's interests. The core of the dispute revolved around determining the best interests of the child, necessitating detailed consideration of various statutory provisions under the *Family Law Act 1975*.

The court was required to determine a range of procedural and substantive issues to progress the case towards a final hearing. These included the filing and service of evidence, the preparation and content of outlines of case, and the specific matters to be addressed in a Family Report. The court also needed to make orders regarding the attendance of parties and witnesses, the disclosure of documents to a Family Consultant, and the potential for legal aid funding withdrawal. Furthermore, interim orders were made concerning the child's time with the father and the involvement of other family members.

In reaching its decision, the court applied principles derived from the *Family Law Act 1975*, particularly sections relating to parental responsibility, equal time, substantial and significant time, and the best interests of the child (ss.61DA, 65DAA, and 60CC). The court emphasised the importance of timely evidence disclosure and the preparation of comprehensive outlines of case to assist in identifying the key issues for determination. Orders were made for directions and a final hearing, with specific timelines set for the filing of affidavits and outlines of case. A Family Consultant was appointed to prepare a report addressing the child's views, relevant statutory factors, and the potential impact of proposed orders. The court also made specific interim orders regarding the father's time with the child, allowing for the attendance of the paternal grandfather and the father's other children on alternate occasions.

Orders

Orders of the court

The matter be adjourned to the Duty List of Federal Circuit Court of Australia in the Gippsland sittings at Morwell in the week commencing 21 November 2016 at 10:00am for Directions.

The matter be adjourned to Federal Circuit Court of Australia in the Gippsland sittings at Morwell in February 2017 for Final Hearing, with an estimated hearing time of 2 days (“the Final Hearing”).

In the event of any applicable filing, setting down, mediation or enforcement fee or fees (“the Fees”) not having been waived, the party responsible for the payment of the Fees or any of them do pay or cause to be paid such of the Fees as shall be payable by that party in accordance with, and within the time specified in the Family Law (Fees) Regulation 2012.

Both the Applicant and the Respondent make, file and serve on each party by no later than 4.00 pm, fourteen (14) days prior to the Final Hearing:

(a) one affidavit setting out any further evidence in chief; and

(b) one affidavit of each witness intended to be relied upon at the Final Hearing.

The Independent Children’s Lawyer make, file and serve on each other party by no later than 4.00 pm, seven (7) days prior to the Final Hearing:

(a) one affidavit setting out any further evidence in chief; and

(b) one affidavit of each witness intended to be relied upon at the Final Hearing.

Each party and the Independent Children’s Lawyer must make, file and serve an Outline of Case document by no later than 4.00 pm, two (2) days prior to the Final Hearing, including the following:

(a) a list of the documents to be relied upon;

(b) a brief chronology;

(i) whether the presumption of equal shared parental responsibility applies (s.61DA),

(ii) the considerations relevant to equal time and substantial and significant time (s.65DAA);

(iii) each of the considerations relevant to determining the best interests of the child(ren) (s.60CC factors);

(iv) other relevant considerations (including, ss.60CG, 61F, 65DAB, 65DAC, etc); and

(v) any other matters relevant to the decision; and

(vi) a statement of the precise orders sought.

No party shall be entitled to rely on any affidavit material filed after the above deadlines without leave of the Court.

If either party is to have legal aid funding withdrawn for the Final Hearing:

(a) The solicitors shall confer no later than 7 days before trial as to which witnesses are required for cross examination at the Final Hearing; and

(b) The solicitors are to ensure all witnesses to be relied upon are on Affidavit and are available to give evidence at Final Hearing, including the Family Consultant if any, and any other expert witness.

No later than 7 days before the Final Hearing each party advise the Court of the affidavit material he/she seeks to rely on at Trial.

10.

No later than 2 days prior to the Final Hearing the parties shall provide to the Court an agreed list of factual issues in dispute.

11.

Pursuant to s.62G(2) of the Family Law Act 1975 the parties and the child X born (omitted) 2013 (“the child”) attend upon a Family Consultant nominated by the Regional Coordinator, Child Dispute Services in the Melbourne Registry on a date and at time/s to be advised for the purposes of the preparation of a Family Report, with such Family Report to be released by 31 January 2017.

12.

The Family Report to deal with the following matters:

(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that would affect the weight that the Court should place on those wishes;

(b) the matters set out in ss.60CC, 61DA and 65DAA of the Family Law Act 1975; and

(d) any other matters that the Family Consultant considers important to the welfare or best interests of the child.

13.

The parties send copies of all of their Court documents to the Family Consultant within seven (7) days of being requested to do so by the Family Consultant.

14.

If a party is not represented by a lawyer, then within seven (7) days of being notified of the Family Consultant that party deliver or cause to be delivered to the Family Consultant copies of the following documents:

(a) all relevant applications and responses filed by him/her, or filed on his/her behalf, in the current proceedings;

(b) all relevant affidavits filed by him/her, or filed on his/her behalf, in the current proceedings; and

15.

For the purpose of completing the Family Report the Family Consultant has permission to inspect the Court file and all documents produced on subpoena once permission to inspect has been granted to a party or the Independent Children’s Lawyer.

16.

The parties comply with all reasonable directions as to attendance upon the Family Consultant as and when required by the Family Consultant.

17.

If either party proposes to have the relevant Family Consultant available for cross examination purposes at the Final Hearing then such party will (if applicable authorise their lawyers to) notify the relevant Family Consultant of his or her need to attend Court no less than seven (7) days prior to the Final Hearing.

18.

Upon the Report being provided to the Court, the Court will provide a copy to each party (or if represented the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.

19.

Unless a party objects, in writing, within 14 days of the date of releasing the Report, copies of the Report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the child/ren to whom these proceedings relate:

(a) a Children’s Court;

(b) a child protection authority;

(d) a convener of any legal dispute resolution conference.

20.

Unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.

AND THE COURT ORDERS UNTIL FURTHER ORDER THAT:

21.

When the Father spends time with the child X born (omitted) 2013 (“the child”) at the Anglicare Children’s Contact Centre at (omitted) pursuant to Order 5(g) of the Orders of 15 June 2015, the Father shall be at liberty, on each alternate occasion, to bring with him the paternal grandfather, Mr K, and/or the Father’s children, A and B or either of them.

22.

The Family consultant shall be at liberty to inspect all released subpoenaed material.

23.

The Independent Children’s Lawyer shall provide to the Family Consultant copies of all reports provided by the Department of Health and Human Services and the report of Dr S.

24.

The Independent Children’s Lawyer shall be at liberty to provide a copy of all Orders made in these Proceedings and the report of Dr S to the Department of Health and Human Services.

AND THE COURT NOTES THAT:

A. At the date on which a copy of the Report is to be provided to any of those identified above, it may not have been admitted into evidence and may be untested or if admitted would only form one part of the evidence in the proceedings.

B. Section121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court.

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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