MORA & WORLEY - [2019] FCCA 2467

FEDERAL CIRCUIT COURT OF AUSTRALIA

MORA & WORLEY

[2019] FCCA 2467

Catchwords:
FAMILY LAW – Parenting – best interests of child – therapeutic engagement – coercive power.

Legislation:

Family Law Act 1975 (Cth)
Federal Circuit Court of Australia Act 1999 (Cth), s.42
Federal Circuit Court Rules 2001 (Cth), r.7.01

Cases cited:

Wardman & Ors v Macquarie Bank Limited [2019] FCCA 939

Applicant:

MR MORA

Respondent:

MS WORLEY

File Number:

CAC 420 of 2015

Judgment of:

Judge Harman

Hearing date:

16 May 2019

Date of Last Submission:

16 May 2019

Delivered at:

Canberra

Delivered on:

16 May 2019

REPRESENTATION

Solicitors for the Applicant:

Mr Stevens of Alliance Legal Services

Solicitors for the Respondent:

Mr Vozella of Bevan & Co Lawyers

Solicitors for the Independent Children's Lawyer:

Ms Orczykowski of Boland Legal Family lawyers

ORDERS

Confirm the hearing dates of 29 & 30 July 2019.
In addition to any Terms of Reference previously advised to Child Dispute Services the Family Report writer is requested to specifically address what therapeutic intervention (if any) might be considered useful, desirable or necessary to assist in the reintroduction of the mother’s relationship with X (assuming that reintroduction is assessed as being in the child’s best interests as to which the Family Report writer will offer comment in accordance with the existing Terms of Reference) and, if so, what therapeutic goals might be set to be achieved as part of that intervention.
The Respondent Mother shall by close of business on 6 June 2019 file and serve a Response and notice of Risk.
Each party shall by close of business on 14 June 2019 file and serve such trial Affidavit material as they propose to rely upon.
By close of business on 14 June 2019 each of the parties and the Independent Children’s Lawyer shall confer for the purpose of identifying the material that they propose to tender at trial and an agreed list of such tenders (the agreement being as to that which is to be tendered rather than any suggestion that the tender is joint or agreed) shall be filed and served by close of business on 14 June 2019.
The Family Report writer is requested to read and consider from that which is produced to the Court on subpoena only that identified in the tender list as filed.
Pursuant to s.69ZW(1) I order and direct the NSW Department of Family and Community Services (“FACS”), ACT Child and Youth Protective Services (“CYPS”), the Australian Federal Police (“AFP”) and NSW Police Service (“NSW Police”) (as a State Agency prescribed by Regulation 12CD/schedule 9 of the Family Law Act Regulations) to provide to this Court within 14 days with all documents and information held by them for the period 6 August 2018 to date about one or more of the following:
(a)Any notification to the agency of suspected abuse of or by the following:
(i)X (born … 2011)
(ii)MR MORA (born … 1981)
(iii)MR WORLEY (born … 1982)
or any of them.
(b)Any notification of suspected family…

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.

Keep reading for free

Create a free CaseChat account to read MORA & WORLEY and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2019] FCCA 2467
Decision Date: 16 May 2019

CaseChat Overview and Summary

This matter concerned parenting orders before Judge Harman. The dispute involved the best interests of a child, X, and the potential for therapeutic intervention to facilitate the reintroduction of the mother's relationship with X.

The court was required to determine the specific terms of reference for a Family Report writer, particularly concerning the assessment of therapeutic intervention. This included identifying whether such intervention would be useful, desirable, or necessary for the reintroduction of the mother's relationship with X, and if so, what therapeutic goals should be set. The court also needed to address the filing and service of various affidavits and trial materials by the parties and the Independent Children's Lawyer.

In its reasoning, the court directed the Family Report writer to specifically address the potential for therapeutic intervention and its goals, contingent on the reintroduction of the mother's relationship being assessed as being in X's best interests. The court also issued broad orders pursuant to s.69ZW(1) of the *Family Law Act 1975* (Cth), directing various government agencies, including FACS, CYPS, the AFP, and NSW Police, to provide all documents and information held concerning notifications of suspected abuse, family violence, and any related assessments or investigations pertaining to the child and the parents. These orders were made with the proviso that the identity of any notifier must be protected by blanking out or removing such information prior to production.

The court confirmed hearing dates for 29 and 30 July 2019 and set deadlines for the filing and service of responses, notices of risk, and trial affidavit material. It also ordered that no party issue subpoenas to the specified government agencies without leave of the court.

Orders

Orders of the court

Confirm the hearing dates of 29 & 30 July 2019.

In addition to any Terms of Reference previously advised to Child Dispute Services the Family Report writer is requested to specifically address what therapeutic intervention (if any) might be considered useful, desirable or necessary to assist in the reintroduction of the mother’s relationship with X (assuming that reintroduction is assessed as being in the child’s best interests as to which the Family Report writer will offer comment in accordance with the existing Terms of Reference) and, if so, what therapeutic goals might be set to be achieved as part of that intervention.

The Respondent Mother shall by close of business on 6 June 2019 file and serve a Response and notice of Risk.

Each party shall by close of business on 14 June 2019 file and serve such trial Affidavit material as they propose to rely upon.

By close of business on 14 June 2019 each of the parties and the Independent Children’s Lawyer shall confer for the purpose of identifying the material that they propose to tender at trial and an agreed list of such tenders (the agreement being as to that which is to be tendered rather than any suggestion that the tender is joint or agreed) shall be filed and served by close of business on 14 June 2019.

The Family Report writer is requested to read and consider from that which is produced to the Court on subpoena only that identified in the tender list as filed.

Pursuant to s.69ZW(1) I order and direct the NSW Department of Family and Community Services (“FACS”), ACT Child and Youth Protective Services (“CYPS”), the Australian Federal Police (“AFP”) and NSW Police Service (“NSW Police”) (as a State Agency prescribed by Regulation 12CD/schedule 9 of the Family Law Act Regulations) to provide to this Court within 14 days with all documents and information held by them for the period 6 August 2018 to date about one or more of the following:

(a) Any notification to the agency of suspected abuse of or by the following:

(i) X (born … 2011)

(ii) MR MORA (born … 1981)

(iii) MR WORLEY (born … 1982)

or any of them.

(b) Any notification of suspected family violence affecting the above persons or any of them;

(c) Any assessment by the agency of investigations into a notification of suspected abuse or family violence and/or the findings and outcomes of those investigations;

(d) Any reports commissioned by the agency in the course of investigating a notification;

FACS and provided that no document is to be provided which identifies directly, indirectly or by reference the identity of any notifier and to achieve compliance with this order and with s.69ZW(3) the entirety of documents in the possession or control of the agency are to be produced to the Court and prior to production any names of notifiers or any material that would infer, suggest or disclose the identity of a notifier is to be blanked out or otherwise removed or obliterated from the document/s so produced.

CYPS and provided that no document is to be provided which identifies directly, indirectly or by reference the identity of any notifier and to achieve compliance with this order and with s.69ZW(3) the entirety of documents in the possession or control of the agency are to be produced to the Court and prior to production any names of notifiers or any material that would infer, suggest or disclose the identity of a notifier is to be blanked out or otherwise removed or obliterated from the document/s so produced.

AFP and provided that no document is to be provided which identifies directly, indirectly or by reference the identity of any notifier and to achieve compliance with this order and with s.69ZW(3) the entirety of documents in the possession or control of the agency are to be produced to the Court and prior to production any names of notifiers or any material that would infer, suggest or disclose the identity of a notifier is to be blanked out or otherwise removed or obliterated from the document/s so produced.

NSW Police and provided that no document is to be provided which identifies directly, indirectly or by reference the identity of any notifier and to achieve compliance with this order and with s.69ZW(3) the entirety of documents in the possession or control of the agency are to be produced to the Court and prior to production any names of notifiers or any material that would infer, suggest or disclose the identity of a notifier is to be blanked out or otherwise removed or obliterated from the document/s so produced.

The parties and/or their solicitors shall not issue any subpoena directed to CYPS, FACS, AFP or NSW Police without leave of the Court.

THE COURT NOTES THAT:

A. The parties have been advised of Family Report interviews to occur 17 June 2019.

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.