Rader and Rader & Ors (No. 2) - [2019] FamCAFC 227

FAMILY COURT OF AUSTRALIA

RADER & RADER AND ORS (NO. 2)

[2019] FamCAFC 227

FAMILY LAW – APPEAL – INTERIM PARENTING – Parenting arrangements – Where children were placed in the care of their maternal grandparents – Assessment of risk – Where a recovery order should not have been sought or granted –Where the father was denied procedural fairness by not being afforded the opportunity to meet the ICL’s proposal that the children live with the maternal grandparents – Appeal allowed and orders set aside – Where the best interests of the children are served by them returning to live with the father until the rehearing, subject to the conditions recommended by the single expert – Where the father is to have parental responsibility – Where no orders are made for time with the mother – Costs certificates ordered for the appellant and respondents for the appeal and the rehearing of the matter – No costs certificates ordered for the ICL.

Family Law Act 1975(Cth) ss 62B, 65DA(2) 68L(2)
Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 8, 9

Rader & Rader (No.4) [2019] FCCA 2826
Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54

APPELLANT:

Mr Rader

FIRST RESPONDENT:

Ms Rader

SECOND RESPONDENT:

Mr Haines

THIRD RESPONDENT:

Ms Haines

INDEPENDENT CHILDREN’S LAWYER:

Morton Family Lawyers

FILE NUMBER:

SYC

1641

2019

APPEAL NUMBER:

2019

DATE DELIVERED:

21 November 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ryan, Aldridge & Watts JJ

HEARING DATE:

15 & 21 November 2019

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

13 September 2019

LOWER COURT MNC:

[2019] FCCA 2825
[2019] FCCA 2826

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Ms Gillies SC with Ms Reid

SOLICITOR FOR THE APPELLANT:

Lander & Rogers

COUNSEL FOR THE FIRST RESPONDENT:

Dr Barnett

SOLICITOR FOR THE FIRST RESPONDENT:

Bowral Legal

SECOND RESPONDENT

In person

THIRD RESPONDENT:

In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Dura

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Morton Family Lawyers

Orders

The appeal be allowed.
Orders 1-13 made on 13 September 2019, as amended on 16 September 2019 be set aside.
Orders 1-7 made ex parte on 13 September 2019 be set aside.
The matter be remitted to the Federal Circuit Court of Australia to be reheard by a judge other than the primary judge.
The documents produced by Ms F are not to be inspected.
The documents produced by Psychologists C are not to be further inspected.
Ms Morton is removed as the Independent Children’s Lawyer and is to file a Notice of Ceasing to Act within seven (7) days.
There be no order as to costs.
The Legal Aid Commission of New South Wales is requested to provide a replacement Independent Children’s Lawyer pursuant to s 68L(2) of the Family Law Act 1975 (Cth) as soon as possible.
The Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings…

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.

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Details

Case: [2019] FamCAFC 227
Decision Date: 21 November 2019

CaseChat Overview and Summary

In this appeal, the parties involved are the father, the mother, and their children X and Y. The dispute revolves around interim parenting arrangements following the children's placement with their maternal grandparents. The matter was heard in the Family Court of Australia. The appeal concerns the process and decision-making surrounding the interim parenting arrangements, particularly focusing on whether the father was afforded procedural fairness and whether a recovery order should have been sought or granted.

The court was required to determine whether the father was denied procedural fairness by not being given the opportunity to meet the Independent Children's Lawyer's proposal for the children to live with the maternal grandparents. Additionally, the court needed to assess whether a recovery order should have been sought or granted in the circumstances. The central issue was whether the best interests of the children were served by their return to the father's care, pending a rehearing of the matter.

The court found that the father had been denied procedural fairness and that a recovery order should not have been sought or granted. The appeal was allowed, and the orders made on 13 and 16 September 2019, as well as the ex parte orders made on 13 September 2019, were set aside. The matter was remitted to the Federal Circuit Court of Australia for rehearing by a different judge. The court also ordered that the children return to living with the father, pending the rehearing, subject to the conditions recommended by the single expert. The father was granted sole parental responsibility, and no orders were made for time with the mother. Costs certificates were ordered for the appellant and respondents for both the appeal and the rehearing, but not for the Independent Children's Lawyer.

Orders

Orders of the court

The appeal be allowed.

Orders 1-13 made on 13 September 2019, as amended on 16 September 2019 be set aside.

Orders 1-7 made ex parte on 13 September 2019 be set aside.

The matter be remitted to the Federal Circuit Court of Australia to be reheard by a judge other than the primary judge.

The documents produced by Ms F are not to be inspected.

The documents produced by Psychologists C are not to be further inspected.

Ms Morton is removed as the Independent Children’s Lawyer and is to file a Notice of Ceasing to Act within seven (7) days.

There be no order as to costs.

The Legal Aid Commission of New South Wales is requested to provide a replacement Independent Children’s Lawyer pursuant to s 68L(2) of the Family Law Act 1975 (Cth) as soon as possible.

10.

The Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal.

11.

The Court grants to the first respondent, second respondent and third respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the first respondent, second respondent and third respondent in respect of the costs incurred by the respondents in relation to the appeal.

12.

The Court grants to the appellant, first respondent, second respondent and third respondent a costs certificate pursuant to s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant, first respondent, second respondent and third respondent in respect of the costs incurred by them in relation to the rehearing ordered.

13.

The Independent Children’s Lawyer’s application for a certificate under the Federal Proceedings (Costs) Act 1981 (Cth) be dismissed.

PENDING FURTHER ORDER, IT IS ORDERED:

14.

That the children X born 2005 (“X”) and Y born 2006 (“Y”) (collectively “the children”) live with the father.

15.

That the father have sole parental responsibility for the children.

16.

That the father or his nominee collect X at the conclusion of school today.

17.

That there be no order for time with the mother.

18.

That the children remain enrolled in their current schools, and the father and mother do all actions and things necessary to cause the children to be enrolled in those schools for the 2020 school year.

19.

That the father, mother and the children engage in family therapy with Ms F and for that purpose, the costs of the therapy shall be shared equally between the father and the mother.

20.

That Ms F provide any recommendations for the progress and further conduct of therapy, and in particular any proposed plan for the children to come into contact with the mother, in writing to the Court for consideration by the Court and the parties, prior to any contact between the children and the mother taking place.

21.

That unless otherwise ordered by the Court, the mother, father, second and third respondents be and hereby are restrained by injunction from discussing with the children or in their presence or hearing:

(a) the family law proceedings, including any affidavit or application filed by any party;

(b) the contents of Dr B’s report and/or his recommendations;

(d) any correspondence between the parties to these proceedings.

22.

That the father, mother, second and third respondents be and hereby are restrained by injunction from denigrating the other parties and/or their family in the presence or hearing of the children and shall immediately remove the children from the presence of any third party who does so.

23.

That pursuant to s 62B of the Family Law Act 1975 (Cth), information about the family counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.

24.

That pursuant to s 65DA(2) 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 are set out in the Fact Sheet, attached hereto 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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