Noonan and Noonan - [2014] FCCA 1262

FEDERAL CIRCUIT COURT OF AUSTRALIA

NOONAN & NOONAN

[2014] FCCA 1262

Catchwords:
FAMILY LAW – Rice and Asplund – whether objection to be heard at preliminary stage or after evidence tested – changed circumstances found.

Legislation:

Family Law Act 1975, s.60CC

In the marriage of Rice and Asplund (1979) FLC 90-725
Marsden & Winch [2009] FamCAFC 152

Applicant:

MR NOONAN

Respondent:

MS NOONAN

File Number:

MLC 10727 of 2011

Judgment of:

Judge F. Turner

Hearing date:

29 April 2014

Date of Last Submission:

29 April 2014

Delivered at:

Melbourne

Delivered on:

23 June 2014

REPRESENTATION

Counsel for the Applicant:

Mr Strum

Solicitors for the Applicant:

Clancy & Triado

Counsel for the Respondent:

Mr Williams

Solicitors for the Respondent:

Coote Family Lawyers

ORDERS

The wife’s objection pursuant to Rice and Asplund, made to the Court on 29 April 2014 is dismissed.
Pursuant to s.62G(2) of the Family Law Act 1975, the parties and the children X born (omitted) 2004, Y born (omitted) 2006 attend upon a Family Consultant nominated by the Regional Coordinator, Child Dispute Services in the Melbourne Registry of the Family Court of Australia for the purposes of the preparation of a Family Report to be given to the Court on or before 5 November 2014, and that:
(a)The Family Report to deal with the following matters:
(i)any wishes expressed by the children and any factors (such as the said children’s maturity or level of understanding) that would affect the weight that the court should place on those wishes;
(ii)the matters set out in ss.60CC, 61DA and 65DAA of the Family Law Act 1975;
(iii)any other matters that the Family Consultant considers important to the welfare or best interests of the children.
(b)The parties do comply with all reasonable directions as to attendance upon the Family Consultant as and when required by the Family Consultant.
(c)The Family Consultant have leave to inspect the subpoenaed material produced to the Court.
The matter is fixed for final hearing at 10am on 11 December 2014 with an estimated hearing time of two days.
The applicant file and serve all affidavits and other material to be relied upon not later than 28 days prior to the final hearing.
The respondent file and serve all affidavits and other material to be relied upon not later than 14 days prior to the final hearing.
All parties file and serve a Case Outline not later than two days prior to the final hearing including the following:
(a)a list of the material relied upon;
(b)a brief chronology listing significant events;
(c)a list of contentions with respect to each of the considerations relevant to determining the best interests of the child(ren) (s.60CC factors);
(d)a list of other contentions relevant to the decision;
(e)whether the presumption of equal shared parental responsibility applies (s.61DA), and if not the contentions relied upon;
(f)a list of the considerations relevant to considerations of equal and substantial parenting time (s.65DAA);
(g)a list of other relevant considerations (including the relevant…

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 Noonan and Noonan

Details

AGLC: Noonan and Noonan [2014] FCCA 1262
Case: [2014] FCCA 1262
Decision Date: 23 June 2014

CaseChat Overview and Summary

In *Noonan and Noonan*, heard before Judge F. Turner, the wife had raised an objection pursuant to *Rice and Asplund*. The primary dispute concerned arrangements for the parties' two children, born in 2004 and 2006.

The court was required to determine the wife's objection and, in light of the ongoing dispute regarding the children, to make orders for the preparation of a Family Report. The court also needed to set a timetable for the filing of evidence and submissions, and to fix a date for the final hearing of the matter.

The court dismissed the wife's objection. It then ordered that the parties and their children attend upon a Family Consultant for the preparation of a Family Report, to be provided to the court by a specified date. This report was to address the children's wishes, factors affecting the weight of those wishes, matters under sections 60CC, 61DA, and 65DAA of the *Family Law Act 1975*, and any other matters the consultant deemed important for the children's welfare. The parties were directed to comply with the consultant's directions, and the consultant was granted leave to inspect subpoenaed material. The matter was subsequently fixed for a final hearing, with detailed requirements for the filing of affidavits, other material, and Case Outlines by the parties. The court also noted the particulars of obligations and consequences of non-compliance with its orders, and the potential for procedural sanctions.

Orders

Orders of the court

The wife’s objection pursuant to Rice and Asplund, made to the Court on 29 April 2014 is dismissed.

Pursuant to s.62G(2) of the Family Law Act 1975, the parties and the children X born (omitted) 2004, Y born (omitted) 2006 attend upon a Family Consultant nominated by the Regional Coordinator, Child Dispute Services in the Melbourne Registry of the Family Court of Australia for the purposes of the preparation of a Family Report to be given to the Court on or before 5 November 2014, and that:

(a) The Family Report to deal with the following matters:

(i) any wishes expressed by the children and any factors (such as the said children’s maturity or level of understanding) that would affect the weight that the court should place on those wishes;

(ii) the matters set out in ss.60CC, 61DA and 65DAA of the Family Law Act 1975;

(iii) any other matters that the Family Consultant considers important to the welfare or best interests of the children.

(b) The parties do comply with all reasonable directions as to attendance upon the Family Consultant as and when required by the Family Consultant.

The matter is fixed for final hearing at 10am on 11 December 2014 with an estimated hearing time of two days.

The applicant file and serve all affidavits and other material to be relied upon not later than 28 days prior to the final hearing.

The respondent file and serve all affidavits and other material to be relied upon not later than 14 days prior to the final hearing.

All parties file and serve a Case Outline not later than two days prior to the final hearing including the following:

(a) a list of the material relied upon;

(b) a brief chronology listing significant events;

(c) a list of contentions with respect to each of the considerations relevant to determining the best interests of the child(ren) (s.60CC factors);

(d) a list of other contentions relevant to the decision;

(e) whether the presumption of equal shared parental responsibility applies (s.61DA), and if not the contentions relied upon;

(f) a list of the considerations relevant to considerations of equal and substantial parenting time (s.65DAA);

(g) a list of other relevant considerations (including the relevant section number, eg. ss.60CG, 61F, 65DAB, 65DAC, etc); and

(h) the actual orders sought.

AND THE COURT NOTES THAT:

Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out hereto and these particulars are included in these orders.

The party responsible for the payment of any fee including a setting down or hearing fee do pay or cause to be paid such of the Fees as shall be payable by that party in accordance with, and within the time specified in, the Family Law (Fees) Regulation 2012.

In the event of non-compliance by any party with the orders, directions, Rules or Regulations of this Court relating to:

(a) the filing of documents; or

(b) any other procedural issues.

the application may be struck out, the proceedings may be directed to proceed undefended or the trial date may be vacated and the Court may direct that a further date not be fixed until all parties have complied with the said orders, directions, Rules and Regulations.

10.

To the extent that it is or may be practicable to do so, a compliance check is to be carried out by an Associate or Deputy Associate of the trial Judge, or by another appropriate court officer, shortly prior to the final hearing date.

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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