NEELY & EZEL - [2019] FCCA 1294

FEDERAL CIRCUIT COURT OF AUSTRALIA

NEELY & EZEL

[2019] FCCA 1294

Catchwords:
FAMILY LAW – Parenting – best interest of the child – therapeutic intervention – role of the court – coercive power.

Legislation:

Family Law Act 1975 (Cth), ss.60CA, 64B, 69ZN

Cases cited:

Gordon & Gordon [2015] FamCA 616
Wardman & Ors v Macquarie Bank Limited [2019] FCCA 939

Applicant:

MR NEELY

Respondent:

MS EZEL

File Number:

PAC 5264 of 2015

Judgment of:

Judge Harman

Hearing date:

14 May 2019

Date of Last Submission:

14 May 2019

Delivered at:

Canberra

Delivered on:

14 May 2019

REPRESENTATION

Solicitors for the Applicant:

Capon & Hubert Lawyers

Solicitors for the Respondent:

Elringtons

Solicitors for the Independent Children's Lawyer:

Barker & Barker

ORDERS

The trial directions made on 25 October 2018 are varied as follows:
(a)Both parties shall file and serve an amended application or response so as to particularise the relief that they propose to seek at trial no later than close of business on 14 June 2019;
(b)Both parties shall file and all affidavit material to be relied upon for the final hearing by no later than close of business on 5 July 2019.
The Order for a Court funded Family Report made on 25 October 2018 remains in force. It is requested, if possible, that the Family Report be released no less than 4 weeks prior to the final hearing and that appointments for the preparation of the Family Report occur after 5 July 2019 (being the date the parties are required to file their material).

THE COURT NOTES THAT:

A.The parties have handed up Terms of Reference in Court today, which are marked Exhibit “A”, however the Court has declined to make orders in accordance with the Terms of Reference.

IT IS NOTED that publication of this judgment under the pseudonym Neely & Ezel is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CANBERRA

PAC 5264 of 2015

MR NEELY

Applicant

And

MS EZEL

Respondent

REASONS FOR JUDGMENT

These proceedings come before the Court today for the purpose of agitation for relief described as a therapeutic intervention.
The proceedings relate to future care arrangements for a child, [X] born … 2013. The therapeutic intervention that the parties urge the Court to order is expressed as assisting “in respect contact matters before this Court”.
The parties to the proceedings are the child’s parents – her father the applicant, and her mother, the respondent.
The parties have negotiated and agreed upon orders set out in a document, marked Exhibit “A” signed and dated by me today, headed Terms of Reference.
Whilst it is sought to appoint a therapist for the purpose of assisting “in respect contact matters before this Court”, the document also requires, indeed compels, by Court Order, that the therapist interview the child and that the parties do all things necessary to facilitate “the therapy as requested by the therapist”. It is then envisaged…

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 NEELY & EZEL

Details

AGLC: Neely and Ezel [2019] FCCA 1294
Case: [2019] FCCA 1294
Decision Date: 14 May 2019

CaseChat Overview and Summary

In the matter of *Neely & Ezel*, heard before Judge Harman, the dispute concerned parenting arrangements for the child. The parties presented Terms of Reference to the Court for approval, but the Court declined to make orders in accordance with them.

The central legal issue before the Court was the extent to which it should exercise its coercive power to compel therapeutic intervention for the parties, in the context of determining the best interests of the child. The Court was required to consider its role in mandating such interventions and the appropriate procedural steps to facilitate a just resolution.

Judge Harman reasoned that while the Court has a broad power to make orders in the best interests of the child, including those relating to therapeutic intervention, it must do so with careful consideration of the practicalities and the parties' capacity to comply. The Court noted that the Terms of Reference, as presented, were not in a form that allowed for immediate orders. Consequently, the Court varied existing trial directions, requiring the parties to file amended applications or responses particularising their proposed relief and to file all affidavit material by specific dates. The Court also confirmed an existing order for a court-funded Family Report, requesting its release well in advance of the final hearing and scheduling appointments for its preparation after the parties had filed their material.

Orders

Orders of the court

The trial directions made on 25 October 2018 are varied as follows:

(a) Both parties shall file and serve an amended application or response so as to particularise the relief that they propose to seek at trial no later than close of business on 14 June 2019;

(b) Both parties shall file and all affidavit material to be relied upon for the final hearing by no later than close of business on 5 July 2019.

The Order for a Court funded Family Report made on 25 October 2018 remains in force. It is requested, if possible, that the Family Report be released no less than 4 weeks prior to the final hearing and that appointments for the preparation of the Family Report occur after 5 July 2019 (being the date the parties are required to file their material).

THE COURT NOTES THAT:

A. The parties have handed up Terms of Reference in Court today, which are marked Exhibit “A”, however the Court has declined to make orders in accordance with the Terms of Reference.

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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