Metford and Faddin - [2018] FCCA 278

FEDERAL CIRCUIT COURT OF AUSTRALIA

METFORD & FADDIN

[2018] FCCA 278

Catchwords:
FAMILY LAW – Change in circumstances demonstrate matter to proceed to hearing.

Legislation:

Family Law Act1975 (Cth)

Cases cited:
Marsden & Winch [2009] FamCAFC 152

Applicant:

MR METFORD

Respondent:

MS FADDIN

File Number:

BRC 9993 of 2017

Judgment of:

Judge Cassidy

Hearing date:

13 November 2017

Date of Last Submission:

4 December 2017

Delivered at:

Brisbane

Delivered on:

9 February 2018

REPRESENTATION

For the Applicant:

Self-represented

Solicitors for the Respondent:

Baker O’Brien & Toll

ORDERS

THE COURT ORDERS UNTIL FURTHER ORDER:

That the oral application for summary dismissal of this matter, heard by the Court on 13 November 2017, be dismissed.
That pursuant to s.62G of the Family Law Act1975 the parties and the children [W] born … 2006, [X] born … 2007, [Y] born … 2009 and [Z] born … 2011(“the children”), attend upon a Family Consultant, as appointed by the Senior Family Consultant of the Federal Circuit Court of Australia, on a date and time to be advised, for the purposes of the preparation of a family report to be made available to the Court.
That in addition to reporting any matters that the Family Consultant considers important to the welfare of the children and the factors contained in s.60CC of the Act the following opinions should be included:
(a)Any views expressed by the children and any factors (such as the children’s maturity or level of understanding) that would affect the weight that the Court should place on those wishes;
(b)That the matters set out in ss60CC, 61DA and 65DAA of the Family Law Act1975; and
(c)Any other matters that the Family Consultant considers important to the welfare or best interests of the children.
That it should be noted a child should not be required to express his or her views in relation to any matter but in the event that a child does express views, the Family Consultant should also canvass and report the views and likely consequences of and for the children if the Court did not reach a conclusion which accorded with the children’s views.
That the Federal Circuit Court of Australia be responsible for payment of the cost of preparation of the Family Report.
That the Family Consultant shall have leave to inspect subpoenaed documents produced to the Court.
That upon the Report being provided to the Court, the Court will release a copy to each party (or if represented, to the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.
That 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 children to whom these proceedings relate:
(a)A Children’s Court;
(b)A child protection authority;
(c)A State or Territory legal aid authority; and
(d)A convener of any legal dispute…

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.

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Details

Case: [2018] FCCA 278
Decision Date: 9 February 2018

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, Judge Cassidy presided over proceedings involving parties whose names are not specified in the provided text. The dispute concerned the welfare of four children, [W], [X], [Y], and [Z], born between 2006 and 2011. An oral application for summary dismissal of the matter was made and heard by the Court on 13 November 2017.

The primary legal issues before the Court were whether to dismiss the application for summary dismissal and, if not, how to best ascertain the children's welfare and best interests. This involved determining the appropriate steps to gather evidence relevant to the children's circumstances, including their views and the factors prescribed by the *Family Law Act 1975*.

Judge Cassidy dismissed the oral application for summary dismissal. The Court then ordered, pursuant to s.62G of the *Family Law Act 1975*, that the parties and the children attend upon a Family Consultant. The Family Consultant was directed to prepare a family report, specifically including the children's views and the factors outlined in ss.60CC, 61DA, and 65DAA of the Act, as well as any other matters relevant to the children's welfare and best interests. The Court also stipulated that children should not be compelled to express their views, but if they did, the Family Consultant should report these views and the potential consequences if the Court's conclusion did not align with them. The Federal Circuit Court of Australia was to bear the costs of the report, and the Family Consultant was granted leave to inspect subpoenaed documents. The Court further detailed the process for releasing the report to the parties, their legal representatives, and potentially other bodies involved in the children's care, welfare, or development, subject to certain conditions and prohibitions on unauthorised dissemination. The matter was adjourned for mention on 14 May 2018.

Orders

Orders of the court

THE COURT ORDERS UNTIL FURTHER ORDER:

That the oral application for summary dismissal of this matter, heard by the Court on 13 November 2017, be dismissed.

That pursuant to s.62G of the Family Law Act 1975 the parties and the children [W] born … 2006, [X] born … 2007, [Y] born … 2009 and [Z] born … 2011(“the children”), attend upon a Family Consultant, as appointed by the Senior Family Consultant of the Federal Circuit Court of Australia, on a date and time to be advised, for the purposes of the preparation of a family report to be made available to the Court.

That in addition to reporting any matters that the Family Consultant considers important to the welfare of the children and the factors contained in s.60CC of the Act the following opinions should be included:

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

(b) That the matters set out in ss60CC, 61DA and 65DAA of the Family Law Act 1975; and

That it should be noted a child should not be required to express his or her views in relation to any matter but in the event that a child does express views, the Family Consultant should also canvass and report the views and likely consequences of and for the children if the Court did not reach a conclusion which accorded with the children’s views.

That the Federal Circuit Court of Australia be responsible for payment of the cost of preparation of the Family Report.

That the Family Consultant shall have leave to inspect subpoenaed documents produced to the Court.

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

That 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 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.

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

10.

That this matter be adjourned for mention at 9:30am on 14 May 2018 in the Federal Circuit Court of Australia at Bundaberg.

NOTATION:

A. At the date on which a copy of the Report is 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. 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.

C. In the event a party to these proceedings objects to the release of the Family Report pursuant to Order (7) herein, they shall write to the Chambers of Judge Cassidy seeking that the matter be listed on short notice for their objection to be heard.

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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