Ricketts and Crowe - [2017] FCCA 718

FEDERAL CIRCUIT COURT OF AUSTRALIA

RICKETTS & CROWE

[2017] FCCA 718

Catchwords:
FAMILY LAW – Child aged six years – child has Aboriginal background – child placed by mother with non-biologically related carer when an infant – proceedings commenced by carer involving mother and maternal grandmother – matter proceeded to final hearing – final hearing involved family report and the independent representation of child – court placed child in care of maternal grandmother – final order significantly influenced by child’s Aboriginality and desirability of child growing up within family of biological origin notwithstanding difficulty of removing child from long standing carer – orders not subject to appeal – carer seeks further orders on basis maternal grandmother is neglecting child and subjecting him to abuse – allegations of abuse strenuously denied – time spending arrangements completely broken down – grandmother seeks dismissal of former carer’s application on the basis of rule in Rice & Asplund – change of circumstances – matters to be considered – best interests.

Legislation:

Family Law Act 1975, s.60CC(3)(h)

Cases cited:
N & S and the Separate Representative (1996) FLC 92-655
Deiter & Deiter [2011] FamCAFC 82
SS v AH [2010] FamCAFC 13
Eaby & Speelman (2015) FLC 93-654
Rice & Asplund (1979) FLC 90-725
SPS & PLS [2008] FamCAFC 16
CDJ v VAJ (1998) FLC 92-828
In the Marriage of McEnearney (1980) FLC 90-866
Bennett & Bennett (1991) FLC 92-191
King & Finneran (2001) FLC 93-079
Walter & Walter [2016] FamCAFC 56
Marsden & Winch (2009) 42 Fam LR 1

Applicant:

MS RICKETTS

Respondent:

MS CROWE

File Number:

ADC 3042 of 2013

Judgment of:

Judge Brown

Hearing date:

4 April 2017

Date of Last Submission:

4 April 2017

Delivered at:

Adelaide

Delivered on:

13 April 2017

REPRESENTATION

Counsel for the Applicant:

Ms Heeley

Solicitors for the Applicant:

Far West Community Legal Centre

Counsel for the Respondent:

Ms Brown

Solicitors for the Respondent:

Osborne Legal

ORDERS

Pursuant to Section 68L of the Family Law Act 1975 THAT an Independent Children’s Lawyer be re-appointed to represent the interests of the child X born (omitted) 2012 and to facilitate such appointment the Parties’ respective solicitors do forward all relevant documents to Mr Steve O’Connor at the Legal Aid Commission of New South Wales within seven (7) days of today’s date and that 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.
Immediately upon re-appointment by the said Legal Aid Commission of New South Wales or otherwise, the Independent Children’s Lawyer file a Notice of Address for Service.
Ms Ricketts file and serve an application setting out all interim and final orders she is seeking by no later than close of business on 12 May 2017.
Ms Crowe is to file and serve a Response and Affidavit in support to that application by no later than close of business on 26 May 2017.
Further consideration of this matter is adjourned for an interim…

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 Ricketts and Crowe

Details

AGLC: Ricketts and Crowe [2017] FCCA 718
Case: [2017] FCCA 718
Decision Date: 13 April 2017

CaseChat Overview and Summary

In the matter of *Ricketts and Crowe*, heard before Judge Brown, the dispute concerned interim and final orders sought by Ms Ricketts in relation to a child, X, born in 2012. The proceedings involved allegations and time-spending issues that required determination by the Court.

The primary legal issue before the Court was the re-appointment of an Independent Children’s Lawyer (ICL) to represent the interests of the child X. The Court also needed to determine the procedural steps required for the parties to file and serve their respective applications and responses, and to set a date for an interim hearing to address the allegations and time-spending issues.

Judge Brown ordered the re-appointment of an ICL pursuant to section 68L of the *Family Law Act 1975*. The parties' solicitors were directed to forward relevant documents to the Legal Aid Commission of New South Wales within seven days to facilitate this appointment, with the ICL to endeavour to be in a position to make submissions on the adjourned date. Ms Ricketts was ordered to file and serve an application detailing her interim and final orders by 12 May 2017, with Ms Crowe to file and serve a Response and Affidavit in support by 26 May 2017. The matter was adjourned for an interim hearing on 8 June 2017 in Broken Hill.

Orders

Orders of the court

Pursuant to Section 68L of the Family Law Act 1975 THAT an Independent Children’s Lawyer be re-appointed to represent the interests of the child X born (omitted) 2012 and to facilitate such appointment the Parties’ respective solicitors do forward all relevant documents to Mr Steve O’Connor at the Legal Aid Commission of New South Wales within seven (7) days of today’s date and that 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.

Immediately upon re-appointment by the said Legal Aid Commission of New South Wales or otherwise, the Independent Children’s Lawyer file a Notice of Address for Service.

Ms Ricketts file and serve an application setting out all interim and final orders she is seeking by no later than close of business on 12 May 2017.

Ms Crowe is to file and serve a Response and Affidavit in support to that application by no later than close of business on 26 May 2017.

Further consideration of this matter is adjourned for an interim hearing in respect of all allegation and time spending issues in Broken Hill on 8 June 2017 at 10:00am.

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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