FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
McManus & Bracken [2021] FedCFamC2F 206
File number: MLC 11271 of 2020 Judgment of: JUDGE O'SHANNESSY Date of judgment: 5 October 2021 Catchwords: FAMILY LAW – interim – whether family report should be provided to the magistrates court for the family violence proceedings – where father seeks family report to be provided to the magistrates court – where mother opposes but then seeks the family report being provided – orders made. Legislation: Family Law Act 1975 (Cth), ss 60CC, 68R, 121 Cases cited: Hearne v Street [2008] HCA 36; (2008) 235 CLR 125 Division: Division 2 Family Law Number of paragraphs: 22 Date of hearing: 5 October 2021 Place: Melbourne The Applicant: Appeared In Person Counsel for the Respondent: Ms E Johnson Solicitor for the Respondent: Fitzroy Legal Service Incorporated ORDERS
MLC 11271 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR MCMANUS
Applicant
AND: MS BRACKEN
Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
5 OCTOBER 2021
THE COURT ORDERS THAT:
1.The Father and the Mother are permitted, subject to any order, ruling or direction of the Magistrates' Court, to make such use of the Family Report prepared by Mr B on 12 May 2021 for the purpose of these proceedings ("the Family Report") in the family violence and/or intervention order proceedings between the parties, as is just.
2.The ex tempore reasons and the order this day, if relevant, may be provided to the Magistrates' Court subject to any order, ruling or direction of that Court as to the admissibility or relevance of those document and the Family Report.
3.Each of the parties be and are restrained from sharing the contents of the Family Report with any observer to, or member of the public present at, the Magistrate Court proceedings and do all acts and things necessary to maintain the confidentiality of the Family Report.
AND THE COURT NOTES THAT:
A.The matter is otherwise listed for Final Hearing on 3 February 2022 (for an estimated 2 days).
B.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 are set out in Annexure A and these particulars are included in these orders.
C.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
D.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme ("the Scheme") for representation but any such application must be made at least 12 weeks prior to the final hearing.
E.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
F.If s102NA applies and a party becomes unrepresented after trial directions…
Continue reading McManus & Bracken
Sign in free to access the full text
- AGLC
- McManus & Bracken [2021] FedCFamC2F 206
- Case
- [2021] FedCFamC2F 206
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was whether the family report could be disclosed to the Magistrates Court for use in the family violence proceedings. This decision required careful consideration of the confidentiality and potential misuse of sensitive information contained in the family report, as well as the implications of such disclosure on the proceedings. The court also needed to address the request made by the mother, who initially opposed but later sought the family report to be provided to the Magistrates Court. The balance between the parties' rights to access information and the need to maintain confidentiality and protect the interests of any children involved was a significant factor in the court's deliberations.
Judge O'Shannessy, in delivering the decision, permitted the use of the family report in the family violence and intervention order proceedings, subject to certain conditions. The court emphasised the importance of maintaining the confidentiality of the report and restrained both parties from sharing its contents with the public or observers in the Magistrates Court. The court also noted that the ex tempore reasons and the order could be provided to the Magistrates Court, subject to any relevant orders or directions regarding admissibility or relevance. The final orders included provisions for the use of the family report, confidentiality measures, and reminders about the obligations and consequences of non-compliance with the court's orders. The matter is scheduled for a final hearing on 3 February 2022.
Orders
Orders of the court
MLC 11271 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR MCMANUS
Applicant
AND:
MS BRACKEN
Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
5 OCTOBER 2021
THE COURT ORDERS THAT:
1. The Father and the Mother are permitted, subject to any order, ruling or direction of the Magistrates' Court, to make such use of the Family Report prepared by Mr B on 12 May 2021 for the purpose of these proceedings ("the Family Report") in the family violence and/or intervention order proceedings between the parties, as is just.
2. The ex tempore reasons and the order this day, if relevant, may be provided to the Magistrates' Court subject to any order, ruling or direction of that Court as to the admissibility or relevance of those document and the Family Report.
3. Each of the parties be and are restrained from sharing the contents of the Family Report with any observer to, or member of the public present at, the Magistrate Court proceedings and do all acts and things necessary to maintain the confidentiality of the Family Report.
AND THE COURT NOTES THAT:
A. The matter is otherwise listed for Final Hearing on 3 February 2022 (for an estimated 2 days).
B. 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 are set out in Annexure A and these particulars are included in these orders.
C. If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
D. Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme ("the Scheme") for representation but any such application must be made at least 12 weeks prior to the final hearing.
E. Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
F. If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
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
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.