Newell & Chesterman - [2023] FedCFamC2F 1074

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Newell & Chesterman [2023] FedCFamC2F 1074

File number(s): ADC 5706 of 2021

Judgment of: JUDGE JENKINS

Date of judgment: 16 August 2023

Catchwords: FAMILY LAW – practice and procedure – parenting – Notice of Discontinuance – application to set aside – duress – agreement made at FDR – inadmissible evidence – waiver of legal privilege – flaws in family report – injustice – Notice of Discontinuance set aside

Legislation:
Evidence Act 1995 (Cth) s 140

Family Law Act1975 (Cth) ss10J, 60B, 60H

Cases cited:
Cao & Trong [2019] FamCA 336

Dalal & Dalal (No 2) [2019] FCCA 3332

Eames & Eames [2018] FamCAFC 204

Laramie & Caul [2018] FCCA 1371

Maddison v Qualtime Association Inc [2010] FMCA 25

MZZIO v Minister for Immigration & Anor [2014] FCCA 618

Olofsson & Olofsson [2019] FCCA 3467

Division: Division 2 Family Law

Number of paragraphs: 48

Date of last submission/s: 15 August 2023

Date of hearing: 15-16 August 2023

Place: Melbourne

Counsel for the Applicant: The Applicant appeared in person

Counsel for the Respondent: Ms Pangallo

Solicitor for the Respondent: Legal Services Commission of South Australia

Solicitor for the Independent Children’s Lawyer Ms Olsson from Silkwoods
ORDERS

ADC 5706 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS NEWELL

Applicant

AND:
MS CHESTERMAN

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE JENKINS

DATE OF ORDER:

16 AUGUST 2023

THE COURT ORDERS THAT:
1.The Notice of Discontinuance filed by the Applicant on 6 February 2023 is set aside.
2.Further consideration of the proceedings is adjourned to 22 September 2023 at 9.00am for an interim hearing.
3.Any Applications in a Proceeding with respect to the interim hearing be filed and served within 14 days.
4.Liberty to the parties to file any further material on which they seek to rely at the hearing by no later than 18 September 2023.
5.No later than two (2) business days prior to the interim hearing, each party file and serve a Case Outline document in the approved form which shall not, without leave, exceed five (5) pages in respect of parenting issues and shall include:
(a)A list of the material relied upon;
(b)a brief chronology listing significant events that are relevant to the issues to be determined by the Court;
(c)a summary of contentions as to section 60CC factors relied upon to satisfy the Court that it is in the best interests of the children to make the orders sought.

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…

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 Newell & Chesterman

Details

AGLC: Newell & Chesterman [2023] FedCFamC2F 1074
Case: [2023] FedCFamC2F 1074
Decision Date

CaseChat Overview and Summary

This case concerned a parenting dispute between the applicant, Ms Newell, and the respondent, Ms Chesterman, who are the mothers of a child born in 2021. The case was heard by Judge Jenkins in the Federal Circuit and Family Court of Australia (Division 2). The primary issue before the court was whether to set aside a Notice of Discontinuance filed by the applicant mother, Ms Newell, which she claimed was made under duress. The court was also asked to determine if setting aside the notice was necessary to avoid an injustice under the Family Law Act 1975 (Cth).

In determining whether to set aside the Notice of Discontinuance, the court considered several factors, including whether Ms Newell knowingly and voluntarily filed the notice, whether the notice was filed due to duress, and whether setting aside the notice would prevent an injustice. The court found that while Ms Newell had filed the notice due to advice given before and during a Family Dispute Resolution conference, evidence of anything said or admitted during the conference was inadmissible under s 10J of the Act. However, the court allowed evidence of advice given to Ms Newell by her advocate, Ms B, prior to the conference, as Ms Newell had waived privilege over this advice. The court heard evidence from Ms B, who stated that she had advised Ms Newell that her prospects of success were not good following the release of a Family Report. Ms Newell's evidence was that she felt pressured into filing the notice due to this advice, and the risk of no time with her child and high legal costs. The court found that a failure to set aside the notice would constitute an injustice, particularly to the child, as it would limit the court's ability to determine what is in the child's best interests without the participation of both parents.

Based on its reasoning, the court set aside the Notice of Discontinuance and adjourned further consideration of the proceedings to an interim hearing. The court ordered that any further material on which the parties seek to rely at the hearing must be filed by a specific date, and that each party must file a Case Outline document no later than two business days before the interim hearing. The court's final orders were that the Notice of Discontinuance be set aside, and the matter be adjourned to an interim hearing on a specified date, with liberty to the parties to file any further material and case outline documents as required.

Orders