PLAYFAIR & HANFORD - [2020] FamCA 759

FAMILY COURT OF AUSTRALIA

PLAYFAIR & HANFORD

[2020] FamCA 759

FAMILY LAW – PRACTICE AND PROCEDURE – Leave to re-open – where the mother filed an application to re-open the proceedings to adduce further evidence – where an order is made granting the mother leave to re-open to adduce further evidence.

FAMILY LAW – CHILDREN – Interim parenting – where the mother seeks to suspend the operation of orders which provide for the father to spend supervised time with the child – where an order is made suspending such time on an interim basis.

Family Law Act 1975 (Cth)

Banks & Banks (2015) FLC 93-637

CDJ & VAJ (1998) 197 CLR 172

Goode & Goode (2006) FLC 93-286
Suell & Suell(Re-opening) [2009] FamCA 55

APPLICANT:

Mr Playfair

RESPONDENT:

Ms Hanford

INDEPENDENT CHILDREN’S LAWYER:

ELR Law

FILE NUMBER:

NCC

2491

2017

DATE DELIVERED:

27 August 2020

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Hogan J

HEARING DATE:

27 August 2020

REPRESENTATION

THE APPLICANT:

In person

SOLICITOR FOR THE RESPONDENT:

Ms Kelly, Legal Aid Queensland

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Rayment, ELR Law

Orders

IT IS ORDERED THAT

The Respondent Mother has leave to re-open the proceedings to adduce further evidence.
The part heard final hearing of this matter is listed to recommence at 9.30 am on 22 October 2020.

AND IT IS ORDERED UNTIL FURTHER ORDER THAT

The operation of Orders, 3, 4, 5 and 6 of the Orders made on 15 January 2019 is suspended.

AND IT IS FURTHER ORDERED THAT

By 4.00 pm on 2 October 2020: the Applicant Father has leave to file and serve electronically, an Amended Application for Final Order and any affidavits intended to be relied upon at the further hearing of the matter listed to recommence on 22 October 2020, if any.
The Independent Children’s Lawyer has leave to issue further subpoenae directed to:
(a)Department of Child Safety, Youth and Women for production of documents; and
(b)Queensland Police Service for the production of documents.
The legal representatives for the Respondent Mother have leave to issue further subpoena directed to Ms B, Child Safety Officer, Department of Child Safety, Youth and Women to attend to give oral evidence.

AND IT IS ORDERED BY CONSENT UNTIL FURTHER ORDER THAT

Unless otherwise agreed between the parents and the Independent Children’s Lawyer in writing, the mother is restrained and an injunction issue restraining her from taking the child, Z, born … 2015, to the program known as F Services for the purpose of counselling or therapy.

AND IT IS FURTHER ORDERED THAT

Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), 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 to adjust to and comply with an Order are set out in the Fact Sheet attached and these particulars are included in these Orders.

Note:…

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 PLAYFAIR & HANFORD

Details

AGLC: PLAYFAIR & HANFORD [2020] FamCA 759
Case: [2020] FamCA 759
Decision Date: 27 August 2020

CaseChat Overview and Summary

In the matter of *Playfair & Hanford*, Hogan J considered applications by the respondent mother for leave to re-open proceedings to adduce further evidence and to suspend the operation of existing interim parenting orders. The dispute concerned interim parenting arrangements, specifically the father's supervised time with the child.

The court was required to determine whether to grant the mother leave to re-open the proceedings to present new evidence. Additionally, the court had to decide whether to suspend, on an interim basis, the orders that provided for the father to spend supervised time with the child.

Hogan J granted the mother leave to re-open the proceedings to adduce further evidence. The court also made orders suspending the operation of specific interim parenting orders concerning the father's supervised time with the child. The part-heard final hearing was adjourned to recommence on 22 October 2020. Further orders were made regarding the filing of amended applications and affidavits, the issuance of subpoenas by the Independent Children's Lawyer and the mother's legal representatives, and an injunction restraining the mother from taking the child to a specific program for counselling or therapy, unless otherwise agreed. The orders also included particulars of obligations and consequences of contravention pursuant to sections 65DA(2) and 62B of the *Family Law Act 1975* (Cth).

Orders

Orders of the court

IT IS ORDERED THAT

The Respondent Mother has leave to re-open the proceedings to adduce further evidence.

The part heard final hearing of this matter is listed to recommence at 9.30 am on 22 October 2020.

AND IT IS ORDERED UNTIL FURTHER ORDER THAT

The operation of Orders, 3, 4, 5 and 6 of the Orders made on 15 January 2019 is suspended.

AND IT IS FURTHER ORDERED THAT

By 4.00 pm on 2 October 2020: the Applicant Father has leave to file and serve electronically, an Amended Application for Final Order and any affidavits intended to be relied upon at the further hearing of the matter listed to recommence on 22 October 2020, if any.

The Independent Children’s Lawyer has leave to issue further subpoenae directed to:

(a) Department of Child Safety, Youth and Women for production of documents; and

(b) Queensland Police Service for the production of documents.

The legal representatives for the Respondent Mother have leave to issue further subpoena directed to Ms B, Child Safety Officer, Department of Child Safety, Youth and Women to attend to give oral evidence.

AND IT IS ORDERED BY CONSENT UNTIL FURTHER ORDER THAT

Unless otherwise agreed between the parents and the Independent Children’s Lawyer in writing, the mother is restrained and an injunction issue restraining her from taking the child, Z, born … 2015, to the program known as F Services for the purpose of counselling or therapy.

AND IT IS FURTHER ORDERED THAT

Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), 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 to adjust to and comply with an Order are set out in the Fact Sheet attached and these particulars are included in these Orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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