Pitman & Hynes (No 2) - [2022] FedCFamC1F 373

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Pitman & Hynes (No 2) [2022] FedCFamC1F 373

File number(s): WOC 772 of 2011

Judgment of: HARPER J

Date of judgment: 25 May 2022

Catchwords: FAMILY LAW – CHILDREN – Summary dismissal – Applicant Mother seeks parenting orders – Where contempt allegations and Covid-19 have delayed final determination of parenting proceedings – Where the father has sole parental responsibility and the two children may only initiate contact with the mother if desired – Where children have not had contact with the mother since 2016 – Where children have consistently expressed the view that they wish no contact with the mother – Eldest child has turned 18, younger child will reach 18 in 2022 – Father and ICL apply for summary dismissal pursuant to s 46 of the Federal Circuit and Family Court of Australia Act2021 (Cth) – Where mother has no reasonable prospects of success – Separate discussion of the principles for conducting child related proceedings – Section 69ZN of the Family Law Act1975 (Cth) – Court is to consider the needs of the child and impact of proceedings on the child – Court is to actively direct, control and manage the conduct of proceedings – Mother’s Application for final parenting orders dismissed – Existing interim parenting orders be made as final orders concerning one child – All outstanding interim applications filed by the mother dismissed – Where dismissal of Application does not affect outstanding Application – Contempt – Independent Children's Lawyer discharged twelve months from orders.

Legislation:
Family Law Act 1975 (Cth) ss 68LA, 69ZN(3)–(7), 69ZQ(1)(a)

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 46 and 67

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 1.04

Cases cited:
Pitman & Hynes [2018] FamCA 101

Pitman & Hynes [2021] FamCA 3005

Division: Division 1 First Instance

Number of paragraphs: 33

Date of hearing: 25 May 2022

The Applicant: Litigant in person

The Respondent: Litigant in person

Counsel for the Independent Children’s Lawyer: Ms Rebehy

Solicitor for the Independent Children’s Lawyer: Legal Aid NSW
ORDERS

WOC 772 of 2011

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS PITMAN

Applicant

AND:
MR HYNES

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

HARPER J

DATE OF ORDER:

25 MAY 2022

THE COURT ORDERS THAT:
1.The existing interim parenting orders concerning Y, born in 2004, be made as final orders up to and including 10 December 2022.
2.The Applicant Mother’s (“the mother”) application for parenting orders be dismissed.
3.All outstanding interim applications filed by the mother in these proceedings be dismissed.
4.Order 3 does not affect, and is without prejudice to the outstanding Applications – Contempt filed on 29 April 2022 and 16 May 2022 by the mother.

THE COURT NOTES THAT:
A.The role of the Independent Children’s Lawyer is at an end in these proceedings, subject to the question of whether any matter raised by the mother’s outstanding Applications – Contempt may…

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 Pitman & Hynes (No 2)

Details

AGLC: Pitman & Hynes (No 2) [2022] FedCFamC1F 373
Case: [2022] FedCFamC1F 373
Decision Date

CaseChat Overview and Summary

In this matter, the mother, Ms Pitman, sought parenting orders in relation to her two children, X and Y. The father, Mr Hynes, and the Independent Children’s Lawyer ("ICL") sought the summary dismissal of the mother’s parenting application under s 46 of the Federal Circuit and Family Court of Australia Act 2021 (Cth). The court was required to determine whether the mother had reasonable prospects of success in her application for parenting orders. The court also had to consider whether the existing interim parenting orders should be made final orders for the balance of the younger child’s minority.

The court considered the lengthy and complex history of the case, the ages of the children, and the views of the children as expressed to the ICL and the Senior Family Consultant. The court was satisfied that the children had consistently expressed the view that they did not wish to have contact with their mother, and this was reinforced by the evidence of the Senior Family Consultant. The court also noted that the mother had not engaged in the preparation for a final hearing, and had instead focused on making allegations of contempt against the father. The court concluded that the mother had no reasonable prospects of success in her application for parenting orders. The court also found that the existing interim parenting orders should be made final orders for the balance of the younger child’s minority. The court dismissed the mother’s application for parenting orders and made the existing interim parenting orders final in relation to the younger child. The court also dismissed all outstanding interim applications filed by the mother in these proceedings. The role of the ICL was discharged, subject to any impact of the mother’s outstanding contempt applications on the younger child.

Orders