FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ness & Firmin (No 3) [2024] FedCFamC2F 1454
File number(s): AYC 144 of 2021 Judgment of: JUDGE O'SHANNESSY Date of judgment: 17 September 2024 Catchwords: FAMILY LAW – Parenting – where final orders were made in February 2024 – where the father was given sole parental responsibility – where the children were to live with the father – where the orders did not allow for the children to spend time with the mother unless otherwise agreed between the parties – where child protection were notified of risk to the children in the fathers care the same day as the final orders and reasons were handed down to the parties – where the court makes no finding on that notification to the department – where the department appeared amicus curae – where the department intervened – where there are orders made in City B children’s court – where the department did not have access to the reasons of the proceedings in this court – where the department did not give consent for orders in this court be made under section 69ZK – children court proceedings in October – parties are directed to advise chambers of future children court proceedings – fixed for a further hearing on a date to be advised. Legislation: Family Law Act 1975 (Cth) ss 69ZK, 102NA Cases cited: Hearne v Street [2008] HCA 36 Division: Division 2 Family Law Number of paragraphs: 33 Date of hearing: 17 September 2024 Place: Melbourne Counsel for the Applicant: Mr Howe Solicitor for the Applicant: Tonkin Legal Group Counsel for the First Respondent: Ms Tunace Solicitor for the First Respondent: Myers Family Law Solicitor for the Second Respondent: Ms Toner of Toner & Associates Appearing Amicus Curae Ms Snibson of the Department of Families, Fairness and Housing ORDERS
AYC 144 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS FIRMIN
Applicant
AND: MR NESS
First Respondent
MS NESS
Second Respondent
THE DEPARTMENT OF FAMILIES, FAIRNESS & HOUSING
Amicus Curae
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
17 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.All extant applications be and are adjourned to a date to be fixed, but after 2 October 2024, with a request that the parties advise this Court of future dates of the Children’s Court Proceeding relating to the Applicant and the Respondent and their children.
2.Ms Firmin (‘the Mother’), Mr Ness (‘the Father’) and Ms Ness (‘the Second Respondent’) be and are released from the obligation (commonly known as the implied obligation) as described in Hearne & Street (2008) 235 CLR 125 96 and Rule 6.04 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 for the purpose of the hearing within the Children’s Court Proceedings and any investigation of the welfare of the children concerned by the Department of Families, Fairness and Housing (‘the Department’).
3.The parties and/or their representatives be at liberty to provide the relevant materials to…
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- AGLC
- Ness & Firmin (No 3) [2024] FedCFamC2F 1454
- Case
- [2024] FedCFamC2F 1454
- Decision Date
CaseChat Overview and Summary
The court faced the task of determining whether the existing orders should be modified in light of the child protection notification and the subsequent intervention by the Department. It was imperative to consider the implications of these developments on the welfare of the children and the obligations of the parents under the Family Law Act. The court also needed to address the Department's lack of access to the court's reasons for the previous proceedings and its failure to consent to the making of orders under section 69ZK. Additionally, the court had to consider the ongoing proceedings in the City B Children's Court and the need for the parties to keep the court informed of any future proceedings.
The court decided to adjourn all pending applications and release the parents from the implied obligation to cooperate for the purpose of the Children's Court proceedings and the Department's welfare investigations. This decision was made to allow the parties to engage in the Children's Court proceedings and the Department's investigations without the constraint of the implied obligation. The court also permitted the parties to provide relevant materials to any court proceedings concerning the children, including affidavits, expert reports, judgments, transcripts, and witness affidavits. Furthermore, the court requested the Department to assess whether its procedures for child protection investigations should be revised to include consideration of the court's orders, reasons, and expert evidence relevant to the children's welfare.
The court's final orders included adjourning all extant applications to a date after 2 October 2024, directing the parties to inform the court of any future Children's Court proceedings, releasing the parents from the implied obligation, allowing the parties to provide relevant materials to any court proceedings regarding the children, and requesting the Department to assess its procedures for child protection investigations.
Orders
Orders of the court
AYC 144 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS FIRMIN
Applicant
AND:
MR NESS
First Respondent
MS NESS
Second Respondent
THE DEPARTMENT OF FAMILIES, FAIRNESS & HOUSING
Amicus Curae
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
17 SEPTEMBER 2024
THE COURT ORDERS THAT:
1. All extant applications be and are adjourned to a date to be fixed, but after 2 October 2024, with a request that the parties advise this Court of future dates of the Children’s Court Proceeding relating to the Applicant and the Respondent and their children.
2. Ms Firmin (‘the Mother’), Mr Ness (‘the Father’) and Ms Ness (‘the Second Respondent’) be and are released from the obligation (commonly known as the implied obligation) as described in Hearne & Street (2008) 235 CLR 125 96 and Rule 6.04 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 for the purpose of the hearing within the Children’s Court Proceedings and any investigation of the welfare of the children concerned by the Department of Families, Fairness and Housing (‘the Department’).
3. The parties and/or their representatives be at liberty to provide the relevant materials to any Court proceeding regarding the children, and that relevant material being:
(a) The affidavits of the Mother and the Father within the proceedings of AYC144/2021;
(b) Any expert reports that were made within the proceedings of AYC144/2021;
(c) The judgment of Ness & Firmin [2021] FCCA 1669;
(d) The judgment of Ness & Firmin [2023] FedCFamC2F 504;
(e) The judgment of Ness & Firmin (No 2) [2024] FedCFamC2F 191;
(f) The Transcripts of proceedings in the matter of AYC144/2021; and
(g) The affidavit of any witness in these proceedings and/or document produced to the Court on subpoena.
4. The Secretary of the Department is requested to assess, as is convenient to the Secretary, whether the procedures (including training) of Child Protection investigations by the Department should be revised to include consideration of the orders, reasons and/or expert evidence of decisions of this Court that may be relevant to the welfare of the children concerned.
AND THE COURT NOTES THAT:
A. Section 69ZK reads
(1) A court having jurisdiction under this Act must not make an order under this Act (other than an order under Division 7) in relation to a child who is under the care (however described) of a person under a child welfare law unless:
(a) the order is expressed to come into effect when the child ceases to be under that care; or
(b) the order is made in proceedings relating to the child in respect of the institution or continuation of which the written consent of a child welfare officer of the relevant State or Territory has been obtained.
(2) Nothing in this Act, and no decree under this Act, affects:
(a) the jurisdiction of a court, or the power of an authority, under a child welfare law to make an order, or to take any other action, by which a child is placed under the care (however described) of a person under a child welfare law; or
(b) any such order made or action taken; or
(c) the operation of a child welfare law in relation to a child.
(3) If it appears to a court having jurisdiction under this Act that another court or an authority proposes to make an order, or to take any other action, of the kind referred to in paragraph (2)(a) in relation to a child, the first - mentioned court may adjourn any proceedings before it that relate to the child.
B. If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
C. Affected unrepresented parties may apply to the court and then to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.
D. Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
E. If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
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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