RADMER & HAGENS - [2020] FCCA 1974

FEDERAL CIRCUIT COURT OF AUSTRALIA

RADMER & HAGENS

[2020] FCCA 1974

Catchwords:
FAMILY LAW – Parenting – child aged 7 years – where final parenting orders were made in May 2015 - where the mother seeks that the father’s Initiating Application be dismissed for failure to comply with the filing of a certificate pursuant s 60I of the Family Law Act 1975 – where the mother alternatively seeks that the father’s Application be dismissed pursuant to the rule in Rice & Asplund – where material produced from the Department for Child Protection and the South Australian Police raises significant concerns about the safety and wellbeing of the child in the mother’s home – father permitted to proceed with his Application – Minister for the Department for Child Protection invited to intervene in the proceedings.

Legislation:

Family Law Act 1975 (Cth), ss.60CC, 60I, 60I(7), 60I(9), 60I(9)(d)

Cases cited:

Ellwood & Ravenhill [2019] FamCAFC 153

Rice & Asplund (1979) FLC 90-725

SPS & PLS [2008] FamCAFC 16

Valack & Valack [2020] FCCA 1354

Applicant:

MR RADMER

Respondent:

MS HAGENS

File Number:

ADC 4691 of 2012

Judgment of:

Judge Kari

Hearing date:

14 May 2020

Date of Last Submission:

14 May 2020

Delivered at:

Adelaide

Delivered on:

21 July 2020

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondent:

Mr Harley of Dixon Gallasch

ORDERS

That pursuant to section 91B of the Family Law Act 1975 as amended the Minister for the Department for Child Protection be invited to intervene in these proceedings and to send a representative to the Court on the next occasion being 8 September 2020 at 2.30pm.
That pursuant to section 68L of the Family Law Act 1975, an Independent Children’s Lawyer be appointed as a matter of urgency to represent the interests of the child X who was born in 2012 and to facilitate such appointment the parties’ respective solicitors do forward all relevant documents to Mr Graham Russell of the Legal Services Commission of South Australia within seven (7) days of today’s date.
The parties forthwith provide to the Independent Children’s Lawyer the names and addresses of any medical practitioners, counsellors or other professional people or agencies they have attended within the last twelve (12) months together with the names and addresses of all medical practitioners, schools, day care centres and/or agencies whom the child may have seen or attended in the last twelve (12) months and provide to the Independent Children’s Lawyer authorities for the release of information concerning themselves and the child from such person or agency.
The Independent Children’s Lawyer use his or her best endeavours to be in a position to make submissions to the Court on the adjourned date.
That no later than 4pm on 4 August 2020 the Mother do file and serve an Amended Response and any Affidavit in support with respect to the interim orders she proposes regarding the child’s living and time spending arrangements.
That the father be at liberty to file and serve any affidavit…

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 RADMER & HAGENS

Details

AGLC: RADMER & HAGENS [2020] FCCA 1974
Case: [2020] FCCA 1974
Decision Date: 21 July 2020

CaseChat Overview and Summary

In the Family Court of Australia, Judge Kari considered an application by the mother to dismiss the father's Initiating Application concerning their seven-year-old child. The mother sought dismissal on two grounds: firstly, for the father's alleged failure to comply with the filing requirements of a section 60I certificate under the *Family Law Act 1975*, and secondly, alternatively, for dismissal pursuant to the rule in *Rice v Asplund*.

The court was required to determine whether the father's application should be dismissed for non-compliance with procedural requirements, and whether the rule in *Rice v Asplund* applied in these circumstances. Crucially, the court also had to consider significant safety and wellbeing concerns raised by material from the Department for Child Protection and the South Australian Police regarding the child's welfare in the mother's care.

Judge Kari permitted the father to proceed with his application, finding that the serious concerns raised about the child's safety warranted further investigation. The court acknowledged the gravity of the allegations and the need to ensure the child's wellbeing. Consequently, the Minister for the Department for Child Protection was invited to intervene in the proceedings, and an Independent Children's Lawyer was appointed urgently to represent the child's interests. The proceedings were adjourned for an interim hearing.

Orders

Orders of the court

That pursuant to section 91B of the Family Law Act 1975 as amended the Minister for the Department for Child Protection be invited to intervene in these proceedings and to send a representative to the Court on the next occasion being 8 September 2020 at 2.30pm.

That pursuant to section 68L of the Family Law Act 1975, an Independent Children’s Lawyer be appointed as a matter of urgency to represent the interests of the child X who was born in 2012 and to facilitate such appointment the parties’ respective solicitors do forward all relevant documents to Mr Graham Russell of the Legal Services Commission of South Australia within seven (7) days of today’s date.

The parties forthwith provide to the Independent Children’s Lawyer the names and addresses of any medical practitioners, counsellors or other professional people or agencies they have attended within the last twelve (12) months together with the names and addresses of all medical practitioners, schools, day care centres and/or agencies whom the child may have seen or attended in the last twelve (12) months and provide to the Independent Children’s Lawyer authorities for the release of information concerning themselves and the child from such person or agency.

The Independent Children’s Lawyer use his or her best endeavours to be in a position to make submissions to the Court on the adjourned date.

That no later than 4pm on 4 August 2020 the Mother do file and serve an Amended Response and any Affidavit in support with respect to the interim orders she proposes regarding the child’s living and time spending arrangements.

That the father be at liberty to file and serve any affidavit in reply no later than 4pm on 28 August 2020.

That the proceedings be listed for interim hearing at 2.30pm on 8 September 2020.

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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