FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Moyland & Shearer [2023] FedCFamC2F 1202
File number(s): CAC 1659 of 2021 Judgment of: JUDGE W J NEVILLE Date of judgment: 15 September 2023 Catchwords: FAMILY LAW – Practice and procedure – discharge of expert via oral Application for which no leave was sought – similar Applications regarding the same expert made in the Family Court of Western Australia both of which failed – non-compliance by Mother and her lawyer with Rules regarding filing Affidavits in support of Applications in a Proceeding – further non-compliance by Mother’s lawyer with Court Order to answer questions in the form of interrogatories with those same basic questions previously asked of Counsel at the hearing – in the light of the FCWA judgments, Mother’s identical Application was doomed to fail but continued to be pressed – accusations however made by the Mother that any delay and or expense was somehow the Court’s fault where the Mother alone pressed two separate Applications on the Court – oral Application dismissed – costs reserved pending submissions. Legislation: Evidence Act 1995 (Cth) ss.76, 79, 122(2), 144
Family Law Act 1975 (Cth) ss.121
Federal Circuit and Family Court of Australia Act 2021 (Cth), ss. 140, 176
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), r.1.05, 1.33, 1.34, 2.01(4), 5.04, Part 6.3, Division 7.15
Health Practitioners Regulation National Law 2018 (ACT) ss.148, 149, 213, 214, 243
Cases cited: AON Risk Services Australia Limited v Australian National University (2009) 230 CLR 175
Dasreef v Hawchar (2011) 243 CLR 588
Fagenblat & Feingold Partners Pty Ltd [2001] VSC 454
HG v The Queen (1999) 197 CLR 414
Honeysett v The Queen (2014) 253 CLR 122
Jenkins & Grothe (Discharge of Single Expert Witness) [2023] FCWA 160
Kennedy v Wallace (2004) 142 FCR 185
McElhinney and McElhinney [2021] FCWA 14
Mann v Carnell (1999) 201 CLR 1
Mortimer & Mortimer (Discharge of Single Expert Witness) [2023] FCWA 177
R & R [2003] FamCA 1180
Re W and W (2001) 28 Fam LR 45
I. Freckleton and H. Selby, Expert Evidence: Law, Practice, Procedure and Advocacy Fifth Edition, (Sydney: Thomson Reuters, 2020)
B. White, F. McDonald, L. Willmott, Health Law in Australia, Third Edition, (Sydney: Thomson Reuters, 2018)
Division: Division 2 Family Law Number of paragraphs: 145 Date of hearing: 23 – 24 August 2023 Place: Canberra Counsel for the Applicant Ms R Dart Solicitor for the Applicant Robinson + McGuinness Family Law Counsel for the Respondent Mr I Duane Solicitor for the Respondent Farrar Gesini Dunn Independent Children’s Lawyer Legal Aid ACT ORDERS
CAC 1659 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR MOYLAND
ApplicantAND: MS SHEARER
Respondent
ORDER MADE BY:
JUDGE W J NEVILLE
DATE OF ORDER:
15 SEPTEMBER 2023
UNTIL FURTHER ORDER, THE COURT ORDERS THAT:
1.The oral Application of the Mother…
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