Maurer and Stilinski - [2017] FCCA 2236

FEDERAL CIRCUIT COURT OF AUSTRALIA

MAURER & STILINSKI

[2017] FCCA 2236

Catchwords:
FAMILY LAW – Interim parenting – family report raises serious issues of risk – unacceptable risk in interim proceedings.

Legislation:

Family Law Act 1975

Cases cited:

Redmond & Redmond [2014] FamCAFC 155

Stott & Holgar & Anor [2017] FamCAFC 152

Applicant:

MS MAURER

Respondent:

MR STILINSKI

File Number:

AYC 146 of 2016

Judgment of:

Judge Harland

Hearing date:

8 & 9 August 2017

Date of Last Submission:

9 August 2017

Delivered at:

Melbourne

Delivered on:

9 August 2017

REPRESENTATION

The Applicant:

Self-represented

Counsel for the Respondent:

Ms Kildea

Solicitors for the Respondent:	Rama Myers Family Lawyers
Counsel for the Independent Children's Lawyer:	Ms Tiernan
Solicitors for the Independent Children's Lawyer:	Legal Aid NSW Albury

ORDERS

Pursuant to s.62G(2) of the Family Law Act 1975, the mother, the father and the children [X] born 2007 and [Y] born 2009 (“the children”) attend upon Ms D in (omitted) for the preparation of an updated family report to be given to the court before 30 September 2017.
The updated family report deal with the following matters:
(a)any views expressed by the children and any matters (such as the children’s maturity or level of understanding) that would affect the weight that the court should place on those views;
(b)the information contained in the subpoena documents received from Victoria Police, the Department of Health and Human Services, and (omitted) Medical Centre;
(c)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 children.
The mother and the father comply with all reasonable directions as to attendance upon the family consultant as and when required by the consultant.
Within seven days of being notified of the identity of the family consultant, the solicitor for each of the parents (or, if unrepresented, then the parent himself or herself) deliver or cause to be delivered to the family consultant copies of the following documents:
(a)all relevant applications, responses and affidavits filed by that parent in these proceedings; and
(b)any intervention or restraining orders currently in force.
The family consultant have leave to inspect any documents produced under subpoena in this matter provided that they have been released for inspection by at least one parent or the independent children’s lawyer.
If either parent or the independent children’s lawyer requires the relevant family consultant to attend for cross examination at the final hearing then that parent or the independent children’s lawyer give the relevant family consultant seven (7) days notice in writing.
Upon the updated family 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.
Unless a party objects, in writing, within 14 days of the date of releasing the updated family report, the court may provide copies of the updated family report…

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 Maurer and Stilinski

Details

AGLC: Maurer and Stilinski [2017] FCCA 2236
Case: [2017] FCCA 2236
Decision Date: 9 August 2017

CaseChat Overview and Summary

In the matter of *Maurer and Stilinski*, heard before Judge Harland, the dispute concerned parenting arrangements for the parties' two children, born in 2007 and 2009. The court was required to determine various aspects of the children's welfare and best interests, including their living arrangements and the mother's time with them.

The central legal issues before the court involved the preparation of an updated family report to inform the court's decision-making. This report was to address the children's views, consider information from various subpoenaed documents, and examine matters stipulated under sections 60CC, 61DA, and 65DAA of the *Family Law Act 1975*. The court also considered the process for the family consultant's involvement, including their access to documents and potential attendance for cross-examination.

Judge Harland ordered that the mother, father, and children attend upon a family consultant for an updated family report. The report was to specifically address the children's views, information from police and health departments, and relevant legislative considerations for the children's best interests. The court also made orders regarding the children living with the father until further order, and for the mother to spend time with the children at a supervised contact centre. Further directions were given concerning the provision of documents to the family consultant and the potential release of the family report to external agencies, subject to objection and statutory limitations on publication.

Orders

Orders of the court

Pursuant to s.62G(2) of the Family Law Act 1975, the mother, the father and the children [X] born 2007 and [Y] born 2009 (“the children”) attend upon Ms D in (omitted) for the preparation of an updated family report to be given to the court before 30 September 2017.

The updated family report deal with the following matters:

(a) any views expressed by the children and any matters (such as the children’s maturity or level of understanding) that would affect the weight that the court should place on those views;

(b) the information contained in the subpoena documents received from Victoria Police, the Department of Health and Human Services, and (omitted) Medical Centre;

(d) any other matters that the family consultant considers important to the welfare or best interests of the children.

The mother and the father comply with all reasonable directions as to attendance upon the family consultant as and when required by the consultant.

Within seven days of being notified of the identity of the family consultant, the solicitor for each of the parents (or, if unrepresented, then the parent himself or herself) deliver or cause to be delivered to the family consultant copies of the following documents:

(a) all relevant applications, responses and affidavits filed by that parent in these proceedings; and

(b) any intervention or restraining orders currently in force.

The family consultant have leave to inspect any documents produced under subpoena in this matter provided that they have been released for inspection by at least one parent or the independent children’s lawyer.

If either parent or the independent children’s lawyer requires the relevant family consultant to attend for cross examination at the final hearing then that parent or the independent children’s lawyer give the relevant family consultant seven (7) days notice in writing.

Upon the updated family 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.

Unless a party objects, in writing, within 14 days of the date of releasing the updated family report, the court may provide copies of the updated family report to the following, if the court is requested to do so for a purpose related to the care, welfare or development of the children to whom these proceedings relate:

(a) a children’s court;

(b) a child protection authority;

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

Unless otherwise ordered, no person release the updated family report, or provide access to the updated family report, to any other person.

10.

The Independent Children’s Lawyer provide copies of the subpoena documents to the Family Consultant.

11.

Until further order, the children live with the father.

12.

Until further order, order 2 of the orders made 21 April 2016 be suspended.

13.

Within 72 hours, the parties do all acts and things to register themselves (omitted) Contact Centre for the purposes of facilitating supervised time between the mother and the children at dates and times that can be accommodated by the Centre.

14.

The mother spend time with the children as can be accommodated by the Contact Centre.

15.

The costs of today be reserved.

16.

Liberty to apply at short notice be granted to all parties.

DIRECTING

17.

The family consultant read the subpoena documents.

NOTING

18.

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

19.

Section 121 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.

20.

In the event a party to these proceedings objects to the release of the updated family report pursuant to order 1 herein, he or she shall write to the chambers of Judge Harland seeking that the matter be listed on short notice for his or her objection to be heard.

21.

It would be preferable for Ms D to prepare the updated family report in this matter.

22.

Any application that comes before the Court at short notice will be heard by Her Honour Judge Harland, or if she is not available, by Her Honour Judge Hartnett.

23.

The father’s agent, Ms S, will collect the children from school at the conclusion of school this day.

24.

The mother’s agent, Ms J, will deliver a bag containing the children’s school uniforms, night teddy, and any other necessary items to the paternal grandmother’s home between 10.00am and 3.00pm on 10 August 2017.

25.

Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in Attachment A and these particulars are included in these 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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