FEDERAL MAGISTRATES COURT OF AUSTRALIA
| RASTALL & BALL & ORS | [2010] FMCAfam 1290 |
| FAMILY LAW – Family law and child welfare – The Family Law Act 1975 (Cth) and related legislation – confidentiality of dispute resolution initial intake assessment. |
| Evidence Act1995, s.131 Family Law Act 1975, ss.10F, 10G, 10H, 10J, 13A, 13C, 60I, 69ZN, 69ZQ Family Law (Family Dispute Resolution Practitioners) Regulations 2008, rr.25, 29 Family Law Regulations1984 |
| Rogers v Rogers [1964] HCA 25; (1964) 114 CLR 608 Smirnov & Turova [2009] FMCAfam 1083 |
| Explanatory Memorandum to the Family Law Amendment (Shared Parental Responsibility) Bill 2005 |
| Applicant: | MS RASTALL |
| Respondent: | MR BALL |
| Intervenor: | MR LANDRY |
| Third Party: | CENTACARE |
| File Number: | MLC 9294 of 2009 |
| Judgment of: | Riethmuller FM |
| Hearing dates: | 21 May & 17 August 2010 |
| Date of Last Submission: | 17 August 2010 |
| Delivered at: | Ballarat |
| Delivered on: | 22 November 2010 |
REPRESENTATION
| Counsel for the Applicant: | Ms Gleeson |
| Solicitors for the Applicant: | Heinz and Partners |
| Counsel for the Respondent: | Ms Lia |
| Solicitors for the Respondent: | Sarah Lia |
| Counsel for the Intervenor: | The Intervenor appearing in person. |
| Counsel for the Third Party: | Mr Pavone of Counsel |
| Solicitors for the Third Party: | BJT Legal |
ORDERS
The matter be adjourned for further hearing.
IT IS NOTED that publication of this judgment under the pseudonym Rastall & Ball & Ors is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BALLARAT |
MLC 9294 of 2009
| MS RASTALL |
Applicant
And
| MR BALL |
Respondent
| MR LANDRY |
Intervenor
| CENTACARE |
Third Party
REASONS FOR JUDGMENT
This is an application concerning the care arrangements for two children of the applicant born in 2002 and 2007. The respondent and intervenor are the respective fathers of the children.
In February 2010 consent interim orders were negotiated by the parties. In an effort to best manage the dispute for the ultimate benefit of the children, the parties were ordered to complete a post separation parenting programme in order to increase their insight and understanding into the issues and tensions that arise in parenting cases, and to assist them in developing skills that would assist in reaching a parenting arrangement that would best meet the needs of the children. As it was clear that a parenting course alone would be unlikely to result in the resolution of the matter orders were also made for the parties to attend family dispute resolution pursuant to s.13C of the Family Law Act 1975. It was hoped that with the assistance of a family dispute resolution practitioner, and the benefits of a recently completed post separation parenting course, the parties may be able to resolve all, or at least some of their issues, rather than pursuing the difficult path of litigation. If they were unable to resolve issues, it was nonetheless hoped that the process would improve their insight into the issues and their negotiation skills.
The orders were made upon the basis of the court’s findings that family dispute resolution would…
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- AGLC
- Rastall and Ball and Ors [2010] FMCAfam 1290
- Case
- [2010] FMCAfam 1290
- Decision Date
CaseChat Overview and Summary
The court held that the definition of 'family dispute resolution' in the Family Law Act clearly differentiates it from a judicial process and requires an assessment before commencing. Furthermore, the court emphasized that the purpose of the Act's additional privilege and inadmissibility provisions is to facilitate the effectiveness of the process, not to protect professionals carrying out family dispute resolution work. The court concluded that 'family dispute resolution' had not commenced in this case, as outlined in the certificate issued by the family dispute resolution practitioner. Consequently, evidence of the assessment is neither confidential under s.10H nor inadmissible under s.10J. However, the parties are entitled to review the evidence of the practitioner to determine if any objections will be made based on other statutory provisions or the common law.
The court further emphasized the importance of family dispute resolution in promoting cooperative and child-focused parenting by the parties and the need for an active role of the court in managing the litigation. The court found that the family dispute resolution practitioner's decision to not proceed with the family dispute resolution process usurped the authority of the court and could amount to a contempt. The court concluded that the Family Law Act's provisions for compulsory attendance at family dispute resolution processes should be taken seriously, and genuine effort by the parties is required to comply with such orders.
In light of these findings, the court ordered the matter to be adjourned for further hearing, allowing the parties to review the evidence of the family dispute resolution practitioner and determine if any objections will be made based on other statutory provisions or the common law. The court will then make orders accordingly and provide further directions for the proper management of the proceeding.
Orders
Orders of the court
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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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