Mahoney & Dieter (No. 3)

Case [2022] FedCFamC1F 151


FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Mahoney & Dieter (No. 3) [2022] FedCFamC1F 151

File number(s): MLC 4348 of 2020
Judgment of: BENNETT J
Date of judgment: 11 March 2022
Catchwords:

FAMILY LAW - PRACTICE AND PROCEDURE - recusal application- application withdrawn by father. 

FAMILY LAW - PARENTING- application to re-open a parenting case – relevant considerations including protecting child from ongoing litigation.

Cases cited:

Freeman & Freeman [1986] FamCA 23

Rice v Asplund (1979) FLC 90-725

Division: Division 1 First Instance
Number of paragraphs: 17
Date of hearing: 11 March 2022
Place: Melbourne (heard via MS Teams)
Counsel for the First  Applicant: Litigant in person
Counsel for the Second  Applicant: Litigant in person (did not participate)
Solicitor for the Respondent: Ms Loach, Melbourne Family Lawyers

ORDERS

MLC 4348 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR MAHONEY

First Applicant

MS MAHONEY
Second Applicant

AND:

MR DIETER

Respondent

ORDER MADE BY:

BENNETT J

DATE OF ORDER:

11 MARCH 2022

THE COURT ORDERS THAT:

1.That there be leave to the step-father Mr Mahoney to unconditionally withdraw his Application in a Proceeding filed 6 March 2022, insofar as he seeks therein that I recuse myself from further hearing this matter.

2.This matter be set down for hearing before me estimated to take 3 days commencing on Thursday 28 July 2022 (“the hearing”).

3.The matter be listed for mention before me on 14 June 2022 or such earlier date within not less than 4 days of the s62G2 report provided for in this Order being released.

4.IT IS DIRECTED that a copy of the transcript of the proceedings of 20 July 2020 be provided to each party to the proceedings.

5.That pursuant to section 68L(2) of the Family Law Act 1975 the interests of the child X born 2011 be independently represented by a lawyer AND IT IS REQUESTED that Victoria Legal Aid arrange such representation NOTING THAT there have been serious allegations of family violence and violence per se which have been reported to authorities.

6.That forthwith upon appointment by the said Victoria Legal Aid or otherwise the independent children’s lawyer file a Notice of Address for Service.

7.That within 48 hours of notification of such appointment the solicitor’s for the respective parties provide to the independent children’s lawyer copies of all relevant documents relied upon.

8.Pursuant to section 62G of the Family Law Act 1975 (Cth), the parties and child X born 2011 (“the child”) are directed to attend with a Court Child Expert (practicing under their appointment as a family consultant) nominated by Court Children’s Service (referred to as the Family Consultant) for the purposes of the preparation of a Specific Issues Report, with such report to be commenced as soon as practicable and to be released by not later than 10 June 2022.

9.The parties and the child attend for interviews at such times, dates and places, and by such means as the Family Consultant may advise

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AGLC
Mahoney & Dieter (No. 3) [2022] FedCFamC1F 151
Case
[2022] FedCFamC1F 151
Decision Date

CaseChat Overview and Summary

In the matter of Mahoney & Dieter, the Federal Circuit and Family Court of Australia heard an application to reopen a parenting case concerning a child born in 2011. The father, Mr Mahoney, sought to withdraw his recusal application and reopen the case, citing concerns about the child's welfare and the impact of ongoing litigation. The court was required to determine whether the circumstances warranted reconsideration of the parenting arrangements and litigation. The judge found that the child's interests were best served by protecting her from the ongoing conflict and litigation between her parents. The court ordered that the matter be set down for a three-day hearing, with the child's interests to be independently represented by a lawyer. The parties and the child were directed to attend assessments with a Court Child Expert, who would prepare a report on the child's views and recommendations for shielding her from the negative impact of high parental conflict.

The court considered the relevant factors, including the child's age, the nature of the allegations, and the potential impact of further litigation on the child. The judge concluded that it was in the child's best interest to limit further litigation and protect her from the ongoing conflict between her parents. The court ordered that the matter be set down for a three-day hearing, with the child's interests to be independently represented by a lawyer. The parties and the child were directed to attend assessments with a Court Child Expert, who would prepare a report on the child's views and recommendations for shielding her from the negative impact of high parental conflict. The court also ordered that the Family Consultant prepare a report on the child's views and recommendations for shielding her from the negative impact of high parental conflict.

The court's orders included setting the matter down for a three-day hearing, appointing an independent children's lawyer to represent the child's interests, and directing the parties and the child to attend assessments with a Court Child Expert. The court also ordered that a report be prepared by the Family Consultant, addressing whether the circumstances warranted reconsideration of the parenting arrangements and litigation, as well as the child's views on the matter. The orders aimed to protect the child from the ongoing conflict and litigation between her parents and to ensure that her best interests were prioritised.

In summary, the Federal Circuit and Family Court of Australia heard an application to reopen a parenting case and protect a child from ongoing litigation. The court considered the relevant factors and concluded that it was in the child's best interest to limit further litigation and protect her from the ongoing conflict between her parents. The court's orders aimed to achieve this outcome, including setting the matter down for a three-day hearing, appointing an independent children's lawyer to represent the child's interests, and directing the parties and the child to attend assessments with a Court Child Expert. The court also ordered that a report be prepared by the Family Consultant, addressing whether the circumstances warranted reconsideration of the parenting arrangements and litigation, as well as the child's views on the matter.

Orders

Orders of the court

MLC 4348 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR MAHONEY

First Applicant

MS MAHONEY

Second Applicant

AND:

MR DIETER

Respondent

ORDER MADE BY:

BENNETT J

DATE OF ORDER:

11 MARCH 2022

THE COURT ORDERS THAT:

1. That there be leave to the step-father Mr Mahoney to unconditionally withdraw his Application in a Proceeding filed 6 March 2022, insofar as he seeks therein that I recuse myself from further hearing this matter.

2. This matter be set down for hearing before me estimated to take 3 days commencing on Thursday 28 July 2022 (“the hearing”).

3. The matter be listed for mention before me on 14 June 2022 or such earlier date within not less than 4 days of the s62G2 report provided for in this Order being released.

4. IT IS DIRECTED that a copy of the transcript of the proceedings of 20 July 2020 be provided to each party to the proceedings.

5. That pursuant to section 68L(2) of the Family Law Act 1975 the interests of the child X born 2011 be independently represented by a lawyer AND IT IS REQUESTED that Victoria Legal Aid arrange such representation NOTING THAT there have been serious allegations of family violence and violence per se which have been reported to authorities.

6. That forthwith upon appointment by the said Victoria Legal Aid or otherwise the independent children’s lawyer file a Notice of Address for Service.

7. That within 48 hours of notification of such appointment the solicitor’s for the respective parties provide to the independent children’s lawyer copies of all relevant documents relied upon.

8. Pursuant to section 62G of the Family Law Act 1975 (Cth), the parties and child X born 2011 (“the child”) are directed to attend with a Court Child Expert (practicing under their appointment as a family consultant) nominated by Court Children’s Service (referred to as the Family Consultant) for the purposes of the preparation of a Specific Issues Report, with such report to be commenced as soon as practicable and to be released by not later than 10 June 2022.

9. The parties and the child attend for interviews at such times, dates and places, and by such means as the Family Consultant may advise NOTING THAT I require that the child be interviewed face to face and any observation session with either parent and or the step-father be face to face. My preference is that the assessment interviews for the adults in the proceedings be face to face. In relation to other adults relevant to the proceedings IT IS REQUESTED that the child court expert include in the interview process:

(a) the paternal grandmother, Ms Q;

(b) Ms E who is the eldest child of Mr and Ms Mahoney who is 25 years old and residing in City R, New Zealand; and

for the avoidance of doubt, Ms S is not an adult who is to be included in the assessment process.

10. Not later than 4.00 pm on 18 March 2022 the parties must provide their contact telephone numbers and email addresses to …

11. The Family Consultant provide a written report to the Court by 10 June 2022 and the report deal with the following matters:

(a) Whether the circumstances of X are such that the Court should reconsider parenting arrangements contained in the Order made in New Zealand in early 2017;

(b) Whether the circumstances of the child are such that the Court should reconsider litigation confined to any isolated aspect of the current parenting arrangements;

(c) The views of the child in relation to:-

(i) Her current parenting arrangements;

(ii) Further litigation between her father and the mother and step father in relation to parenting arrangements;

(iii) What can be done to shield X from the negative impact of high parental conflict; and

(iv) Any other matter which relates to the care welfare or development of the child that the child court expert figures ought to be brought to attention of court.

12. For the avoidance of doubt the Child Court Expert be and is hereby authorized to have reference to:-

(a) all documents filed in these proceedings;

(b) any documents produced on subpoenae and released for inspection by all parties;

(c) any documents provided to him/her by the independent children’s lawyer who will give notice to the other parties to the proceedings of what documents are so provided; and

(d) any documents or things referred to in this Order.

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

14. Any party who wishes to cross-examine the Child Court Expert at the hearing provide notice to the Manager of Court Children’s Services not later than 2 working days following the release of the s62G(2) report.

15. My reasons for decision this day be transcribed and when settled a copy be provided to the parties and a copy placed on the file.

16. The hearing before the Honourable Justice Johns on 18 March 2022 be and is hereby vacated.

17. The Application in a Proceeding filed by Mr Mahoney on 6 March 2022 be and is hereby otherwise dismissed.

18. The Application in a Proceeding filed by Mr Mahoney on 28 November 2021 be and is hereby otherwise dismissed.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law 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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