Ness & Firmin - [2023] FedCFamC2F 504

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ness & Firmin [2023] FedCFamC2F 504

File number(s): AYC 144 of 2021

Judgment of: JUDGE O'SHANNESSY

Date of judgment: 17 March 2023

Catchwords: FAMILY LAW – part-heard final hearing – where mother’s attendance at final hearing sporadic – where mother refused to attend Melbourne registry for final hearing – where mother appeared via videolink – orders requiring mother to file medical evidence of absence from final hearing – order permitting the mother to obtain legal advice from her legal representatives whilst under cross-examination – final hearing adjourned part-heard.

Legislation: Family Law Act 1975 (Cth), ss 69ZN, 102NA.

Division: Division 2 Family Law

Number of paragraphs: 18

Date of hearing: 17 March 2023

Place: Melbourne

Counsel for the Applicant: Mr J. Gates

Solicitor for the Applicant: Myers Family Lawyers

Counsel for the Respondent: Mr S. Howe

Solicitor for the Respondent: MMH Lawyers

Counsel for the Independent Children's Lawyer: Ms S. Taylor

Solicitor for the Independent Children's Lawyer: Joliman Lawyers
ORDERS

AYC 144 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR NESS

Applicant

AND:
MS FIRMIN

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

JUDGE O'SHANNESSY

DATE OF ORDER:

17 MARCH 2023

THE COURT ORDERS THAT:
1.The matter be adjourned part-heard for Final Hearing in the Federal Circuit and Family Court of Australia Melbourne Registry on 5 & 8 May 2023 at 10am.
2.The Mother, Ms Firmin, and the Father, Mr Ness, are directed to attend the Melbourne Registry of this Court for the further hearing of the matter pursuant to Order 1 herein.
3.In the event the Mother fails to appear on the adjourned date, the Father and Independent Children’s Lawyer have liberty to apply to proceed on an undefended basis.
4.By 4pm on 14 April 2023 the Mother file and serve an Affidavit including medical evidence explaining her absence from the Court on 14 March 2023 and 17 March 2023.
5.Notwithstanding that the cross-examination of the Mother has not concluded, the Mother be and is permitted to obtain legal advice in relation to any aspect of her case or the conduct of it.
6.The subpoenaed material be released to all parties until 29 days after the conclusion to the last day of the Final Hearing.
7.The costs of the Father and Independent Children’s Lawyer be fixed and reserved.

AND THE COURT NOTES THAT:
A.The Father’s fixed costs are $6,200 for this day.
B.The Father opposes Order 5 herein.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in…

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 Ness & Firmin

Details

AGLC: Ness & Firmin [2023] FedCFamC2F 504
Case: [2023] FedCFamC2F 504
Decision Date

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, Division 2, the case of Ness & Firmin involves a complex family law dispute between Mr Ness (the Applicant) and Ms Firmin (the Respondent). The primary issue before the court was whether to grant the Mother's application for an adjournment of the proceedings, which had been listed for a four-day final hearing. The Mother, Ms Firmin, had been sporadically attending the final hearing, appearing via videolink from various locations and citing health reasons for her absences. The court had to balance the principles outlined in section 69ZN of the Family Law Act 1975 (Cth) with the need to safeguard the children involved from undue delay and family violence.

Judge O'Shannessy, in delivering the ex tempore judgment, acknowledged the serious allegations of family violence and the need to protect the children from exposure to such violence. The judge considered the competing applications of the parties, including the Father's application for exclusive parental rights, the Independent Children's Lawyer's application for supervised contact, and the Mother's application for alternate weekend time and family therapy. The judge recognised the difficulties in managing the proceedings without undue delay and the importance of considering the children's best interests. Despite the Father's opposition to the adjournment, the judge decided to adjourn the matter part-heard, taking into account the Mother's health circumstances and the need for her to provide medical evidence. The court ordered that both parents appear in person at the rescheduled hearing dates and set further orders for the filing of medical evidence and the conduct of the proceedings.

The final orders included adjourning the matter part-heard for two days in May 2023, directing both parents to attend in person, permitting the Mother to obtain legal advice during cross-examination, and requiring her to file medical evidence by 14 April 2023. The court also fixed and reserved the costs of the Father and the Independent Children's Lawyer for the current hearing.

Orders