Milton and Penfold and Anor (No.2)

[2018] FCCA 2397

FEDERAL CIRCUIT COURT OF AUSTRALIA

MILTON & PENFOLD & ANOR (No.2) [2018] FCCA 2397

Catchwords:
FAMILY LAW – Parenting – final parenting Orders made in December 2016 – the Mother took no active part in the final hearing due to previous and on-going head injury – children to different Fathers live with the Mother and maternal Grandmother – Mother seeks to re-open proceedings on the basis of later neurological report – considerations arising out of utility of new evidence which only came to light after final submissions had been submitted by Father and Independent Children’s Lawyer and Mother “realised” that more evidence should be filed – considerations also of application of principles from Rice & Asplund – Application dismissed.

Cases cited:
Carriel v Lendrum (2015) 53 Fam LR 157
Marsden v Winch (2010) 42 Fam LR 1
Miller v Harrington (2008) 220 FLR 300; (2009) 39 Fam LR 654
O’Brien & O’Brien [2017] FamCAFC 219
Poisat & Poisat (2014) FLC ¶93-597

Rice & Asplund (1979) FLC ¶90-725

SPS & PLS (2008) 217 FLR 164; (2008) FLC ¶93–363; (2009) 39 Fam LR 295
Walter & Walter [2016] FamCAFC 56

Applicant: MS MILTON

First Respondent: MR PENFOLD

Second Respondent: MS OWEN

File Number: AYC 108 of 2015

Judgment of: Judge Neville

Hearing date: By Written Submissions

Date of Last Submissions: 15 June 2018

Delivered at: Canberra

Delivered on: 30 August 2018

REPRESENTATION

Solicitors for the Applicant:	Orman Solicitors, Wagga Wagga
Solicitors for the First Respondent:	Denniston & Day, Wagga Wagga
Solicitors for the Second Respondent:	Self-Represented
Solicitors for the Independent Children’s Lawyer	Evans Family Lawyers, Canberra

ORDERS

1. The Applicant be granted leave to admit the medico-legal Report of Dr J dated 19 March 2018.

2. The Mother’s [implied] Application to re-open be dismissed.

3. All other outstanding Applications be dismissed.

4. The Court Orders dated 21 December 2016 remain in force.

5. The parties are to attend mediation to formalise the Mother’s regular time with [X] and, if no agreement can be reached, the Orders of 21 December 2016 remain in force.

6. There be no Order as to costs.

IT IS NOTED that publication of this judgment under the pseudonym Milton & Penfold & Anor (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CANBERRA

AYC 108 of 2015

MS MILTON

Applicant

And

MR PENFOLD

First Respondent

And

MS OWEN

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. On 21^st December 2016, final parenting Orders were made in relation to now 5 year old [X].  Due to a very serious brain injury, the Mother took no active part in the final hearing.  The Mother continues to live with her children (to different Fathers) with the maternal Grandmother (who might be described as the “primary” Respondent at trial).  This doubtlessly busy household runs, from the Mother’s perspective, with varying degrees of assistance from her Mother, although now, to a significant degree, with the aid of various “systems”, which allow the Mother to live a relatively independent…