PINFOLD & CRAMMOND - [2020] FCCA 324

FEDERAL CIRCUIT COURT OF AUSTRALIA

PINFOLD & CRAMMOND

[2020] FCCA 324

Catchwords:
FAMILY LAW – Transfer to the Magellan list in the Family Court of Australia.

Legislation:

Family Law Act 1975 (Cth), s.68L

Federal Circuit Court of Australia Act 1999 (Cth), s.39

Federal Circuit Court Rules 2001 (Cth), r.8.02

Cases cited:

Morris & Rosetti [2017] FamCA 249

Applicant:

MS PINFOLD

Respondent:

MR CRAMMOND

File Number:

NCC 453 of 2016

Judgment of:

Judge Morley

Hearing date:

8 January 2020

Date of Last Submission:

8 January 2020

Delivered at:

Sydney

Delivered on:

8 January 2020

REPRESENTATION

Solicitors for the Applicant:

Mr Winder of Winder Lawyers

Solicitors for the Respondent:

Mr McMah of ABF Legal

Solicitors for the Independent Children’s Lawyer:

Mr Whelan of Mark Whelan Lawyer as amicus curiae

ORDERS

Pursuant to s.68L of the Family Law Act 1975 the interests of the children Y, born in 2013, and X, born in 2010, are to be independently represented by an Independent Children’s Lawyer in these proceedings.
The Legal Aid Commission of NSW is requested to make arrangements as soon as practicable to facilitate the above order, and the Court requests that consideration be given to allocating the appointment to Mr Mark Whelan, who has been Independent Children’s Lawyer in this matter previously.
Each of the parties shall, within seven (7) days of any request by the Independent Children’s Lawyer:
(a)Complete and provide to the Independent Children’s Lawyer a parenting questionnaire and/or such other information as may be requested.
(b)Provide to the Independent Children’s lawyer copies of all any documents filed by them in these proceedings together with:
(i)Any medical reports they hold relating to the child/ren;
(ii)Any psychological or school counsellor or pre-school intervention reports they hold relating to the child/ren;
(iii)Any school reports they hold for the child/ren;
(iv)Any other documents they hold and wish the Independents Children’s Lawyer to see and/or that they intend to seek to tender to the Court or rely on in these proceedings.
Each of the parties shall present the child/ren to such places and at such times and dates as are requested and/or advised by the Independents Children’s Lawyer for the purpose of the Independents Children’s Lawyer meeting with the child/ren.
Leave is granted to the Independents Children’s Lawyer to inspect the Court file and any material produced to the Court pursuant to s.69ZW and/or in response to subpoena.
Leave is granted to the Independent Children’s Lawyer to issue such further subpoena as they may consider relevant, appropriate or useful and such leave expressly authorises and allows the issue of more than five subpoenas by the Independent Children’s Lawyer.
The appointment of the Independent Children’s Lawyer is made on the following bases:
(a)There are issues of anti-social tendencies on the part of a parent or parents or other persons with whom the children come regularly into contact;
(b)There is a history of litigation by either or both parents;
(c)There are allegations of abuse amounting to sexual abuse by one party’s partner against the child.
By…

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 PINFOLD & CRAMMOND

Details

AGLC: Pinfold and Crammond [2020] FCCA 324
Case: [2020] FCCA 324
Decision Date: 8 January 2020

CaseChat Overview and Summary

In the Family Court of Australia, Judge Morley considered proceedings between Pinfold & Crammond concerning the welfare of two children, Y (born 2013) and X (born 2010). The primary dispute revolved around arrangements for the children, with specific concerns raised regarding parental conduct and potential abuse.

The court was required to determine the necessity of appointing an Independent Children’s Lawyer (ICL) to represent the interests of the children. Further issues included the scope of the ICL's information-gathering powers, including the ability to request documents and information from the parties, and to meet with the children. The court also had to consider the basis for such an appointment, particularly in light of allegations of anti-social tendencies, a history of litigation, and allegations of sexual abuse. Finally, the court needed to decide whether to transfer the proceedings to the Family Court of Australia and request their listing in the Magellan List.

Judge Morley ordered the appointment of an ICL pursuant to s 68L of the *Family Law Act 1975*, requesting the Legal Aid Commission of NSW to facilitate this, with a preference for Mr Mark Whelan, who had previously acted as ICL. The court stipulated that parties must provide the ICL with requested parenting questionnaires, information, and all relevant documents, including medical, psychological, and school reports. Parties were also directed to present the children for meetings with the ICL as requested. Leave was granted to the ICL to inspect the court file and issue further subpoenas, with no limit on the number. The appointment was based on identified issues including parental anti-social tendencies, a history of litigation, and allegations of sexual abuse by a partner.

By consent, the court made orders in accordance with a 'Draft Consent Orders' document. The proceedings were transferred to the Family Court of Australia, Sydney Registry, pursuant to s 39 of the *Family Law Act 1975*, with a request for prompt attention by the Magellan List Registrar for listing and directions.

Orders

Orders of the court

Pursuant to s.68L of the Family Law Act 1975 the interests of the children Y, born in 2013, and X, born in 2010, are to be independently represented by an Independent Children’s Lawyer in these proceedings.

The Legal Aid Commission of NSW is requested to make arrangements as soon as practicable to facilitate the above order, and the Court requests that consideration be given to allocating the appointment to Mr Mark Whelan, who has been Independent Children’s Lawyer in this matter previously.

Each of the parties shall, within seven (7) days of any request by the Independent Children’s Lawyer:

(a) Complete and provide to the Independent Children’s Lawyer a parenting questionnaire and/or such other information as may be requested.

(b) Provide to the Independent Children’s lawyer copies of all any documents filed by them in these proceedings together with:

(i) Any medical reports they hold relating to the child/ren;

(ii) Any psychological or school counsellor or pre-school intervention reports they hold relating to the child/ren;

(iii) Any school reports they hold for the child/ren;

(iv) Any other documents they hold and wish the Independents Children’s Lawyer to see and/or that they intend to seek to tender to the Court or rely on in these proceedings.

Each of the parties shall present the child/ren to such places and at such times and dates as are requested and/or advised by the Independents Children’s Lawyer for the purpose of the Independents Children’s Lawyer meeting with the child/ren.

Leave is granted to the Independents Children’s Lawyer to inspect the Court file and any material produced to the Court pursuant to s.69ZW and/or in response to subpoena.

Leave is granted to the Independent Children’s Lawyer to issue such further subpoena as they may consider relevant, appropriate or useful and such leave expressly authorises and allows the issue of more than five subpoenas by the Independent Children’s Lawyer.

The appointment of the Independent Children’s Lawyer is made on the following bases:

(a) There are issues of anti-social tendencies on the part of a parent or parents or other persons with whom the children come regularly into contact;

(b) There is a history of litigation by either or both parents;

By consent, pending further order and without admissions, orders are made in accordance with the document entitled ‘Draft Consent Orders’ initialled by me, dated today and placed with the Court file.

Direct the solicitor for the Independent Children’s Lawyer to provide a typescript of the ‘Draft Consent Orders’ made today in Microsoft Word format direct to my Associate by email (associate.judgemorley@federalcircuitcourt.gov.au) within 2 working days of today’s date.

10.

Pursuant to s 39 of the Family Law Act 1975, transfer these proceedings to the Family Court of Australia, Sydney Registry, and request that these proceedings be brought to the attention of the Magellan List Registrar as soon as possible for listing and the making of directions.

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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