Nagel & Clay - [2019] FamCA 406

FAMILY COURT OF AUSTRALIA

NAGEL & CLAY

[2019] FamCA 406

FAMILY LAW – CHILDREN – Parenting – Where Family Report previously prepared in matter – where mother seeks alternate single expert be appointed to prepare an updating report – where the father opposes mother’s application – where the Court makes no findings about the mother’s criticisms of the Family Report or the manner in which the Family Report was prepared – where alternate single expert ordered.

Family Law Act 1975 (Cth)

APPLICANT:

Mr Nagel

RESPONDENT:

Ms Clay

FILE NUMBER:

SYC

7861

2015

DATE DELIVERED:

20 June 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Harper J

HEARING DATE:

20 June 2019

REPRESENTATION

SOLICITOR-ADVOCATE FOR THE APPLICANT:

Ms Carter

SOLICITOR FOR THE APPLICANT:

Pearson Emerson Meyer Family Lawyers

COUNSEL FOR THE RESPONDENT:

Mr O’Ryan QC

SOLICITOR FOR THE RESPONDENT:

Michael Conley Lawyers

Orders

By consent, orders be made in accordance with both documents titled “Consent Orders” as signed by the parties and initialled by me, dated today and placed with the papers (and attached hereto and marked Annexure “1”).
I DIRECT that the solicitor for the respondent file a clean certified typescript of the said document, including the variation to Order 1(a) of the orders made by the Honourable Justice Rees on 15 November 2017, within 3 business days of the date of these orders in Microsoft Word format.
Pursuant to s.65DA(2) of the Family Law Act 1975 (Cth)(“the Act”), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are included in these orders.
Within seven (7) days of today’s date the applicant father submit to the respondent mother or her legal representatives a list of four (4) names of suitably qualified experts to be appointed as a single expert pursuant to Part 15.5 of the Family Rules 2004 (Cth) and seven (7) days thereafter, the respondent mother is to select one (1) name from the list and within twenty-one (21) days of today’s date the parties are to do all things necessary to appoint the selected expert to prepare a Family Report, in respect of the children subject of the proceedings, with such report to address the matters in s.60CC of the Act.
Upon the selection of a single expert the parties are to submit Chambers a proposed Minute of Consent Orders appointing such expert, and if appropriate, such orders may be made in Chambers.
The parties collaboratively prepare a joint Balance Sheet (“the Balance Sheet”) setting out all assets, liabilities and financial resources which the parties assert are relevant to the determination of this matter, with such document to have footnotes which explain the differences between the parties in relation to any disputed items.
For the purposes of preparing the Balance Sheet and unless otherwise agreed, no later than twenty-eight (28) days prior to 25 October 2019, the applicant provide to the respondent a draft joint Balance…

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 Nagel & Clay

Details

AGLC: Nagel & Clay [2019] FamCA 406
Case: [2019] FamCA 406
Decision Date: 20 June 2019

CaseChat Overview and Summary

In the matter of *Nagel & Clay*, Harper J made orders by consent between the applicant father and the respondent mother. The proceedings concerned the family law matters of the parties, including the appointment of a single expert to prepare a Family Report regarding the children.

The court was required to determine the terms of the consent orders, including provisions for the appointment of a single expert, the preparation of a joint Balance Sheet detailing the parties' financial positions, and the filing of affidavits for a final hearing. The court also needed to ensure that the orders complied with the requirements of the *Family Law Act 1975* (Cth) regarding contravention.

Harper J's reasoning focused on facilitating the resolution of the dispute by establishing a clear procedural framework. The court applied principles of procedural fairness and efficiency by setting specific timelines for the parties to exchange financial information and evidence. The orders mandated the collaborative preparation of a joint Balance Sheet with footnotes to explain any discrepancies, and required the parties to file consolidated affidavits for the final hearing. The court also directed the filing of a clean certified typescript of the consent orders, including any variations, and explicitly included particulars of obligations and consequences of contravention pursuant to s.65DA(2) of the Act.

The court ordered that all extant applications be adjourned to 5 November 2019 for mention or callover.

Orders

Orders of the court

By consent, orders be made in accordance with both documents titled “Consent Orders” as signed by the parties and initialled by me, dated today and placed with the papers (and attached hereto and marked Annexure “1”).

I DIRECT that the solicitor for the respondent file a clean certified typescript of the said document, including the variation to Order 1(a) of the orders made by the Honourable Justice Rees on 15 November 2017, within 3 business days of the date of these orders in Microsoft Word format.

Pursuant to s.65DA(2) of the Family Law Act 1975 (Cth)(“the Act”), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are included in these orders.

Within seven (7) days of today’s date the applicant father submit to the respondent mother or her legal representatives a list of four (4) names of suitably qualified experts to be appointed as a single expert pursuant to Part 15.5 of the Family Rules 2004 (Cth) and seven (7) days thereafter, the respondent mother is to select one (1) name from the list and within twenty-one (21) days of today’s date the parties are to do all things necessary to appoint the selected expert to prepare a Family Report, in respect of the children subject of the proceedings, with such report to address the matters in s.60CC of the Act.

Upon the selection of a single expert the parties are to submit Chambers a proposed Minute of Consent Orders appointing such expert, and if appropriate, such orders may be made in Chambers.

The parties collaboratively prepare a joint Balance Sheet (“the Balance Sheet”) setting out all assets, liabilities and financial resources which the parties assert are relevant to the determination of this matter, with such document to have footnotes which explain the differences between the parties in relation to any disputed items.

For the purposes of preparing the Balance Sheet and unless otherwise agreed, no later than twenty-eight (28) days prior to 25 October 2019, the applicant provide to the respondent a draft joint Balance Sheet, using the form available on the Family Court of Australia website, setting out the asset pool contended for by the applicant and by no later than fourteen (14) days prior to 25 October 2019 the respondent return the Joint Balance Sheet to the applicant having inserted the respondent’s contentions as to the asset pool, the respondent’s asserted values and footnotes to explain any disputed items. Thereafter, the parties are submit the Joint Balance Sheet to Chambers by no later than close of registry filing on 25 October 2019.

The parties, and any lay witnesses they seek to rely upon, file and serve by no later than close of Registry filing on 30 September 2019, one consolidated Affidavit proposed to be relied upon at Final Hearing.

All extant applications be adjourned to 5 November 2019 at 10:00am for mention or callover.

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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