Moore and Evers (Summary Appeal) - [2014] FamCA 947

FAMILY COURT OF AUSTRALIA

MOORE & EVERS (SUMMARY APPEAL)

[2014] FamCA 947

FAMILY LAW – APPEAL FROM COURT OF SUMMARY JURISDICTION UNDER S 96 – PRACTICE AND PROCEDURE ON EX PARTE APPLICATIONS – The mother appealed from a decree made by a State Magistrates Court being ex-parte recovery and interim change of residence orders relating to children aged 11 and 16 which changed their long term primary residence where there had been no written application for residency change and the circumstances were not such as would normally base such a change without providing procedural fairness to the mother – Hearing de novo – appeal successful and orders made by Magistrate reversed

Family Law Act 1975 (Cth) s 96

Sieling and Sieling (1979) FLC 90-627
Tzenessidis and Tzenessidis & Tenessidis and Skouzis [2004] FamCA 545

Goode & Goode (2006) FLC 93-286
Dundas & Blake [2013] FamCAFC
Doherty & Doherty [2014] FamCAFC 20
SCVG & KLD [2014] FamCAFC 42

APPELLANT:

Ms Moore

RESPONDENT:

Mr Evers

FILE NUMBER:

MLC

5079

2008

DATE DELIVERED:

4 November 2014

PLACE DELIVERED:

Launceston

PLACE HEARD:

Melbourne

JUDGMENT OF:

Benjamin J

HEARING DATE:

2 October 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Skerlj

SOLICITOR FOR THE APPLICANT:

Peter Baker & Associates

COUNSEL FOR THE RESPONDENT:

Ms Theoharopoulou

SOLICITOR FOR THE RESPONDENT:

Stuthridge Legal

Orders

UNTIL FURTHER ORDER

Pursuant to s 96(4) of the Family Law Act 1975 (Cth) orders 4 and 5 made by the Magistrates Court on … August 2014 are reversed.
Pursuant to s 96(4)(b) of the Family Law Act 1975 (Cth) the interests, in these proceedings, of the child S born … 2003 be independently represented by a lawyer and it is requested that Legal Aid Commission Victoria arrange an Independent Children’s Lawyer, and that the Independent Children’s Lawyer be at liberty to peruse and/or take copies of all documents filed in these proceedings upon the making of an appointment to do so with the Registry Manager of the Family Court of Australia at Melbourne.
Forthwith upon appointment by the said Legal Aid Commission of Victoria or otherwise the Independent Children’s Lawyer file a Notice of Address for Service.
Within forty eight (48) hours of notification of such appointment the parties, and if represented the solicitors for the respective parties, provide to the Independent Children’s Lawyer copies of all relevant documents relied upon.
The parties or either of them be restrained from abusing, demeaning or belittling the other party in the presence or hearing of the child or the child C born … 1998.
The parties or either of them be restrained from exposing either of the children to verbal abuse, assault, threats or violence.
Both parties be restrained from discussing or allowing others to discuss these proceedings or any aspect of these proceedings in the presence of or hearing of the children.
The father shall return S to the mother by 5.00pm on Friday 3 October 2014.
The order made 23 November 2011 requiring the child C to spend time and/or communicate…

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 Moore and Evers (Summary Appeal)

Details

AGLC: Moore and Evers (Summary Appeal) [2014] FamCA 947
Case: [2014] FamCA 947
Decision Date: 4 November 2014

CaseChat Overview and Summary

This matter came before Benjamin J of the Family Court of Australia concerning an appeal from orders made by the Magistrates Court. The dispute involved the parties, identified as Moore and Evers, and concerned the welfare and living arrangements of their children.

The primary legal issues before the court were whether the orders made by the Magistrates Court were appropriate, particularly in light of the principles governing the making of urgent and ex parte orders. The court was required to consider the necessity of immediate intervention to protect the interests of the children and the parties, balancing the potential harm to the applicant against the hardship to the respondent of making an order without a full hearing.

Benjamin J applied the established principles from *Sieling and Sieling* and *Tzenessidis and Tzenessidis & Tenessidis and Skouzis*, which emphasize that ex parte orders should only be made with caution and where there is a real and urgent need to protect a person or property. The court must be satisfied that the matter is of such urgency that immediate orders are the only means of protection. The more drastic the order, the graver the risk must be, and the more important it is that the respondent be heard at the earliest opportunity. The court also considered the nature and imminence of any risk, potential hardship to the respondent, and the consequences of delaying an order.

The court made several orders, including reversing certain orders of the Magistrates Court, appointing an Independent Children’s Lawyer, restraining the parties from discussing proceedings in the presence of the children, and ordering the return of a child to the mother. The court also suspended an order for the child C to spend time with the father and requested the intervention of Victorian State Child Protection Authorities. Finally, the proceedings were transferred to the Federal Circuit Court.

Orders

Orders of the court

UNTIL FURTHER ORDER

Pursuant to s 96(4) of the Family Law Act 1975 (Cth) orders 4 and 5 made by the Magistrates Court on … August 2014 are reversed.

Pursuant to s 96(4)(b) of the Family Law Act 1975 (Cth) the interests, in these proceedings, of the child S born … 2003 be independently represented by a lawyer and it is requested that Legal Aid Commission Victoria arrange an Independent Children’s Lawyer, and that the Independent Children’s Lawyer be at liberty to peruse and/or take copies of all documents filed in these proceedings upon the making of an appointment to do so with the Registry Manager of the Family Court of Australia at Melbourne.

Forthwith upon appointment by the said Legal Aid Commission of Victoria or otherwise the Independent Children’s Lawyer file a Notice of Address for Service.

Within forty eight (48) hours of notification of such appointment the parties, and if represented the solicitors for the respective parties, provide to the Independent Children’s Lawyer copies of all relevant documents relied upon.

The parties or either of them be restrained from abusing, demeaning or belittling the other party in the presence or hearing of the child or the child C born … 1998.

The parties or either of them be restrained from exposing either of the children to verbal abuse, assault, threats or violence.

Both parties be restrained from discussing or allowing others to discuss these proceedings or any aspect of these proceedings in the presence of or hearing of the children.

The father shall return S to the mother by 5.00pm on Friday 3 October 2014.

The order made 23 November 2011 requiring the child C to spend time and/or communicate with the father is suspended pending further order.

10.

These proceedings be transferred to the Federal Circuit Court.

IT IS REQUESTED

11.

Pursuant to s 91B of the Family Law Act 1975 (Cth) the Court seeks the intervention of the Victorian State Child Protection Authorities in these proceedings.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The established principles set out in Sieling and Sieling (1979) FLC 90-627 remain good law, in particular where Evatt C.J and Marshall S.J said at [78,254] (and with which Asche J agreed):-The general principles are that the Court must be satisfied that the matter is of such urgency that the applicant's interests (or the interests of the child) can be protected only by an immediate order. It is necessary to balance the likelihood of harm to the applicant against the hardship to the respondent of making an order without hearing him. The more drastic the order the more grave must be the risk to be averted and the more important the requirement that the respondent be heard at the earliest opportunity. An order that a party be excluded from the home or that a child be removed from the custody of a party must be supported by evidence of an imminent risk of such a nature [emphasis added] that the Court cannot wait even the period of time necessary for short service.An order restraining dealings in property may have less drastic consequences for the respondent, or the consequences may be such that the respondent can be protected by an undertaking as to damages. Nevertheless, in such cases the need for urgent action by the Court may also be less apparent and the possibility of postponing the matter and bringing it on at short notice should be considered. The majority went on to say at [78,255]:- While it is not possible to lay down precise or exhaustive guidelines to cover the many different cases which arise, the matters which the Court should consider when asked to act ex parte include the following: ·the nature and imminence of the risk to the applicant, to a child, to property interests or to a third party;·any hardship or prejudice to the respondent and children or to any third party which may arise from proceeding to make the order ex parte;·where the order relates to property, whether there is a need to protect the respondent by requiring the applicant to give an undertaking as to damages;·the possible consequences of delaying the order until the respondent can be heard, and the steps which could be taken to give notice to the respondent;·the need to protect the respondent by ensuring that the order is clear in its terms, that it is served within the shortest possible time, that a return date is fixed and that the respondent be informed of his rights to apply to have the matter brought on before the return day. The approach in Sieling (supra) was approved by the Full Court in Tzenessidis and Tzenessidis & Tenessidis and Skouzis [2004] FamCA 545 where that Full Court said:-35.Although we would not grant leave to appeal the orders made on 20 March 2003 we would make the following observations. In Sieling and Sieling (1979) FLC 90-627 the Full Court held that the making of ex parte orders must be done with caution and made only where the evidence shows that they are necessary. Evatt C.J. and Marshall S.J. stated at 78,254 that:“Whenever a Court acts ex parte it is departing from one of the primary rules of natural justice, that each party should be given an opportunity to present his or her case to the Court. (See The Commissioner of Police v. Tanos (1957-58) 98 C.L.R. 383, 395-396; Lonard (1976) FLC 90-066 at p. 75,336.) For this reason, an ex parte order should be made only where there is a real and urgent need to protect a person or to preserve property and it should remain in force only until both parties can come before the Court.”

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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