Philips & Erling - [2021] FamCA 640

FAMILY COURT OF AUSTRALIA
Philips & Erling [2021] FamCA 640

File number(s): BRC 6640 of 2021

Judgment of: HOGAN J

Date of judgment: 13 August 2021

Catchwords: FAMILY LAW – PARENTING – Interim orders – Expedited trial.

Legislation: Family Law Act 1975 (Cth) s 60CC

Cases cited:
Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36

Donnell & Dovey (2010) FLC 93-428; [2010] FamCAFC 15

Goode and Goode (2006) FLC 93-286; [2006] FamCA 1346

Number of paragraphs: 27

Date of hearing: 13 August 2021

Place: Brisbane

Counsel for the Applicants: Ms Firth

Solicitor for the Applicants: Daykin Family Law

Counsel for the First Respondent: Ms Chesterman

Solicitor for the First Respondent: Lander & Rogers

The Second Respondent: No appearance
ORDERS

BRC 6640 of 2021

BETWEEN:
MS PHILIPS

First Applicant

MR PHILIPS

Second Applicant

AND:
MR ERLING

First Respondent

MS ERLING

Second Respondent

ORDER MADE BY:

HOGAN J

DATE OF ORDER:

13 AUGUST 2021

THE COURT ORDERS THAT:
1.The Child Inclusive Conference Memorandum to Court dated 12 August 2021 be marked as Exhibit 2 and provided to the legal representatives for the parties by email.

AND IT IS FURTHER ORDERED THAT
2.The matter is listed for final hearing for two (2) days before Justice Hogan commencing at 10.00 am on 13 October 2021, at the Family Court of Australia at Brisbane.
3.All parties attend the hearing in person.
4.The matter is listed for a Directions Hearings at 3.45 pm on 20 August 2021 before a Registrar for the making of Trial Directions and the legal representatives have leave to appear by telephone at the Directions Hearing.
5.The parties have leave of the Court to rely upon any affidavit material already filed in the proceedings.

APPOINTMENT OF INDEPENDENT CHILDREN’S LAWYER
6.Pursuant to s 68L(2), the interests of the child, X, born … 2009, be independently represented by a lawyer and it is requested that Legal Aid Queensland make arrangements as a matter of significant priority so as to secure that independent representation of the child’s interests.
7.Forthwith upon appointment, the person arranged by Legal Aid Queensland to be the Independent Children’s Lawyer file a Notice of Address for Service.
8.Within 48 hours of being notified of the details of the Independent Children’s Lawyer, each party provide to the independent children’s lawyer a copy of all documents relied upon by that party in the proceedings at that time.
9.Upon filing a Notice of Address for Service, the Independent Children’s Lawyer has leave to inspect and copy any and all material subpoenaed by the parties and released by the Court up to that date.

PREPARATION OF FAMILY REPORT
10.Pursuant to s11F of the Family Law Act 1975 (Cth) the Applicants attend at Court for an appointment with a Family Consultant as nominated by the Manager, Child Dispute Services, Brisbane Registry on a date and time to be advised for the purposes of the preparation of a family report pursuant to section 62G of the Family Law Act 1975 (Cth).
11.Pursuant to s11F…

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 Philips & Erling

Details

AGLC: Philips & Erling [2021] FamCA 640
Case: [2021] FamCA 640
Decision Date: 13 August 2021

CaseChat Overview and Summary

In the matter of *Philips & Erling*, Hogan J of the Family Court of Australia considered interim parenting orders and the scheduling of an expedited trial. The dispute concerned parenting arrangements for a child, X.

The court was required to determine the procedural steps necessary to advance the matter towards a final hearing, including the appointment of an Independent Children's Lawyer and the exchange of documents.

Hogan J ordered that the Child Inclusive Conference Memorandum be admitted as an exhibit. The final hearing was scheduled for two days commencing on 13 October 2021, with all parties required to attend in person. A directions hearing was also scheduled for 20 August 2021 to make trial directions, with legal representatives permitted to appear by telephone. The parties were granted leave to rely on previously filed affidavit material. Crucially, pursuant to section 68L(2) of the relevant Act, an Independent Children's Lawyer was to be appointed for the child X, with Legal Aid Queensland requested to make arrangements with significant priority. Upon appointment, the Independent Children's Lawyer was to file a Notice of Address for Service and, within 48 hours of notification, receive all documents relied upon by the parties. The Independent Children's Lawyer was also granted leave to inspect and copy any material subpoenaed by the parties and released by the Court.

Orders

Orders of the court

THE COURT ORDERS THAT:

1. The Child Inclusive Conference Memorandum to Court dated 12 August 2021 be marked as Exhibit 2 and provided to the legal representatives for the parties by email.

AND IT IS FURTHER ORDERED THAT

2. The matter is listed for final hearing for two (2) days before Justice Hogan commencing at 10.00 am on 13 October 2021, at the Family Court of Australia at Brisbane.

3. All parties attend the hearing in person.

4. The matter is listed for a Directions Hearings at 3.45 pm on 20 August 2021 before a Registrar for the making of Trial Directions and the legal representatives have leave to appear by telephone at the Directions Hearing.

5. The parties have leave of the Court to rely upon any affidavit material already filed in the proceedings.

APPOINTMENT OF INDEPENDENT CHILDREN’S LAWYER

6. Pursuant to s 68L(2), the interests of the child, X, born … 2009, be independently represented by a lawyer and it is requested that Legal Aid Queensland make arrangements as a matter of significant priority so as to secure that independent representation of the child’s interests.

7. Forthwith upon appointment, the person arranged by Legal Aid Queensland to be the Independent Children’s Lawyer file a Notice of Address for Service.

8. Within 48 hours of being notified of the details of the Independent Children’s Lawyer, each party provide to the independent children’s lawyer a copy of all documents relied upon by that party in the proceedings at that time.

9. Upon filing a Notice of Address for Service, the Independent Children’s Lawyer has leave to inspect and copy any and all material subpoenaed by the parties and released by the Court up to that date.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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File number(s):	BRC 6640 of 2021
Judgment of:	HOGAN J
Date of judgment:	13 August 2021
Catchwords:	FAMILY LAW – PARENTING – Interim orders – Expedited trial.
Legislation:	Family Law Act 1975 (Cth) s 60CC
Cases cited:	Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36 Donnell & Dovey (2010) FLC 93-428; [2010] FamCAFC 15 Goode and Goode (2006) FLC 93-286; [2006] FamCA 1346
Number of paragraphs:	27
Date of hearing:	13 August 2021
Place:	Brisbane
Counsel for the Applicants:	Ms Firth
Solicitor for the Applicants:	Daykin Family Law
Counsel for the First Respondent:	Ms Chesterman
Solicitor for the First Respondent:	Lander & Rogers
The Second Respondent:	No appearance

ORDER MADE BY:	HOGAN J
DATE OF ORDER:	13 AUGUST 2021