Rastall and Ball and Ors - [2010] FMCAfam 1290

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…

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 Rastall and Ball and Ors

Details

AGLC: Rastall and Ball and Ors [2010] FMCAfam 1290
Case: [2010] FMCAfam 1290
Decision Date

CaseChat Overview and Summary

This case concerns the care arrangements for two children born in 2002 and 2007, with the applicant, Ms. Rastall, and the respondent, Mr. Ball, being the respective mothers and fathers. The case revolves around the question of whether the confidentiality provisions of the Family Law Act 1975 (Cth) and the Family Law (Family Dispute Resolution Practitioners) Regulations 2008 preclude evidence of the assessment conducted by Centacare, a family dispute resolution service provider, from being placed before the court. The Federal Magistrates Court of Australia, presided over by Riethmuller FM, was tasked with deciding this issue.

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