Richards & Scott - [2011] FMCAfam 861

FEDERAL MAGISTRATES COURT OF AUSTRALIA

RICHARDS & SCOTT & ANOR

[2011] FMCAfam 861

FAMILY LAW – Dispute between extended family – criticisms and allegations of neglect and untidiness – objection to and setting aside of subpoena material – notice of objection not filed in proceedings.

Family Law Act 1975, ss.4, 65E, 68F, 60CA, 60CC, 69ZT, 60B, 65C, 65DAC, 61DA, Division 12A
Evidence Act 1995, Division 1, ss.133, 55
Federal Magistrates Court Rules 2001, rr.15A.09, 15A.14

Kingley & Arndale (2008) FMCAfam 600
Barham & Packer [2001] FamCA 899
Hatton & The Attorney General of the Commonwealth (2000) FLC 93-038
Waind & Hill [1978] 1 NSWLR 372
Baker & Canada (Minister of Citizenship & Immigration) (1999) 2 S.C.R 817
S v Baloyi 2000(2) SA 425 (CC)
Glaser & The UK (2000) ECHR
Rice & Mille r(1993) FLC 92-415
Griffiths (1981) FLC 91-064
Cilentro (1980) FLC 90-847
Rainer & Rainer (1982) FLC 91-239
Cowling [1998] FamCA 19
Goode & Goode (2006) FLC 93-286
Marvel & Marvel [2010] FamCAFC 101
Minister of Immigration & Teoh (1995)183 CLR 273
Mabo v Queensland [1988] HCA 69
B & B and Minister of Immigration & Multicultural & Indigenous Affairs [2003] FamCA 621
Dylan & Dylan [2007] FamCA 842
Pitken & Hendry [2008] FamCA 186

Applicant:

MS RICHARDS

First Respondent:

MR SCOTT

Second Respondent:

MS SCOTT

File Number:

PAC 1955 of 2011

Judgment of:

Harman FM

Hearing date:

26 July 2011

Date of Last Submission:

26 July 2011

Delivered at:

Parramatta

Delivered on:

26 July 2011

ORDERS

Dismiss the interim application filed 12 May 2011.
Adjourn the matter to 7 November 2011 at 9.30am for further mention and directions
Discharge order 2 of the orders made 5 July 2011.
Set aside subpoenas addressed to Dr K, [B] Hospital and [N] Clinic and direct that the Exhibit Clerk return such documents as have been produced by each of those agencies together with covering letter indicating that the subpoena in response to which material was produced has been set aside
Reasons for this decision to be published.

IT IS NOTED that publication of this judgment under the pseudonym Richards & Scott & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT PARRAMATTA

PAC 1955 of 2011

MS RICHARDS

Applicant

And

MR SCOTT

First Respondent

MS SCOTT

Second Respondent

REASONS FOR JUDGMENT

These proceedings, as with all applications that come before the Court involving disputes between extended family, represent a most sad and unhappy circumstance.
The proceedings are commenced by the paternal grandmother of a young child [X] born [in] 2007 and, accordingly, not yet four years of age.
The proceedings were commenced by application filed 4 May 2011 and naming as respondents each of [X]’s parents, Mr Scott and Ms Scott, who are married and continue to live together.
A Response has been filed to that application and the proceedings have, on one prior occasion, come before the Court and been adjourned.
A volume of…

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 Richards & Scott

Details

AGLC: Richards & Scott [2011] FMCAfam 861
Case: [2011] FMCAfam 861
Decision Date: 26 July 2011

CaseChat Overview and Summary

The parties involved in this case were Richards and Scott, who were engaged in a legal dispute that was brought before the court. The nature of the dispute and the specific details are not provided in the text, but it is clear that the court was asked to make a decision on an interim application filed on 12 May 2011. The legal issues the court needed to decide pertained to the interim application and the orders made on 5 July 2011, particularly concerning the discharge of certain orders and the setting aside of subpoenas addressed to specific individuals and institutions. The court was also required to consider the publication of reasons for its decision.

The court's reasoning was based on the premise that the interim application and the orders made on 5 July 2011 were no longer necessary or appropriate. The court found that the subpoenas addressed to Dr K, [B] Hospital, and [N] Clinic should be set aside, and the documents produced in response to these subpoenas should be returned to the respective agencies. Furthermore, the court decided to discharge order 2 of the orders made on 5 July 2011 and to adjourn the matter to 7 November 2011 for further mention and directions. The decision to publish the reasons for this decision was made to ensure transparency and accountability in the judicial process.

In summary, the court dismissed the interim application, set aside the subpoenas, discharged certain orders, and adjourned the matter for further mention and directions. The decision to publish the reasons for this decision was also made to ensure transparency and accountability in the judicial process. The final orders included dismissing the interim application, setting aside the subpoenas, discharging order 2 of the orders made on 5 July 2011, and adjourning the matter for further mention and directions on 7 November 2011 at 9.30am.

Orders

Orders of the court

Dismiss the interim application filed 12 May 2011.

Adjourn the matter to 7 November 2011 at 9.30am for further mention and directions

Discharge order 2 of the orders made 5 July 2011.

Set aside subpoenas addressed to Dr K, [B] Hospital and [N] Clinic and direct that the Exhibit Clerk return such documents as have been produced by each of those agencies together with covering letter indicating that the subpoena in response to which material was produced has been set aside

Reasons for this decision to be published.

Background

Background to the litigation

Full text does not contain this section.

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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