Ritchie and Hodgkinson - [2017] FCCA 1882

FEDERAL CIRCUIT COURT OF AUSTRALIA

RITCHIE & HODGKINSON

[2017] FCCA 1882

Catchwords:
FAMILY LAW – Parenting – consideration of the principles of Rice & Asplund – application for summary dismissal.

Legislation:
Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA
Family Law Rules2004, r.10.15
Federal Circuit Court Act 1999, s.17A

In The Marriage of Rice and Asplund (1978) 6 Fam LR 570
King & Finneran [2001] Fam CA 344
In the marriage of McEnerney [2001] Fam CA 344
Marsden & Winch [2009] Fam CAFC 152
DL & W [2012] FamCAFC 5
Goode v Goode [2006] FamCA 1346
In the Marriage of Bennett (1990) 14 Fam LR 397
Lindon v Commonwealth (No.2) (1996) 136 ALR 251
Paget & Dubois [2013] FCCA 1746
Saad & Saad (1993) FLC 92-332

Applicant:

MR RITCHIE

Respondent:

MS HODGKINSON

File Number:

MLC 12512 of 2016

Judgment of:

Judge Williams

Hearing date:

23 June 2017

Date of Last Submission:

23 June 2017

Delivered at:

Melbourne

Delivered on:

11 August 2017

REPRESENTATION

Counsel for the Applicant:

Mr Eidelson of Counsel

Solicitors for the Applicant:

Kenna Teasdale Lawyers

Counsel for the Respondent:

Mr Indovino of Counsel

Solicitors for the Respondent:

McKean Park Lawyers

ORDERS

There be orders, in terms of the Minute of Orders dated 14 July 2017 (“the Minute”) and further:
The Minute be placed upon the court file and marked Exhibit “A”.
(a)The solicitors for the Applicant do engross the Minute and deliver a clean, duly certified copy of the same in Microsoft Word Document format (“the Copy”) by email to Chambers of Judge Williams within 7 days.
associate.judgewilliams@federalcircuitcourt.gov.au
(b)Upon delivery of the Copy to the court, the within orders be extracted and the Copy be attached thereto.
The matter be adjourned to Federal Circuit Court of Australia on 14 November 2018 at 10.00am for Final Hearing, with an estimated hearing time of 2 days (“the Final Hearing”).

Trial Directions

The evidence of the parties and their witnesses be by way of affidavit (unless leave has otherwise been granted by the court) AND:
(a)The applicant electronically file and serve any further affidavits to be relied upon by the applicant at the final hearing not later than 21 days prior to the trial; and
(b)The respondent electronically file and serve any further affidavits to be relied upon by the respondent at the final hearing not later than 14 days prior to the trial; and
AND FURTHER that each party be permitted to rely upon only one affidavit by each of the parties and each witness unless:
(c)the second or subsequent affidavits of the witness (or party) do not contain any paragraph numbers or exhibit numbers used in the earlier affidavit or affidavits; or
(d)the party has first obtained leave of the court.
Not later than 4.00pm two business days prior to the trial all parties do electronically file and serve an Outline of Case Document (not exceeding 5 pages) including the following:
(a)a list of the material relied upon;
(b)a brief chronology listing significant…

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 Ritchie and Hodgkinson

Details

AGLC: Ritchie and Hodgkinson [2017] FCCA 1882
Case: [2017] FCCA 1882
Decision Date: 11 August 2017

CaseChat Overview and Summary

This matter concerned orders made by Judge Williams in the Federal Circuit Court of Australia. The proceedings involved the parties, identified as Ritchie and Hodgkinson, and concerned parenting arrangements for their child. The court was required to make orders regarding the conduct of the parties, the future conduct of the proceedings, and the preparation of a Family Report.

The court was required to determine the terms of interim orders concerning the parties' conduct, particularly in relation to drug use and exposure of the child to illicit substances. Further, the court needed to establish directions for the final hearing, including the filing of affidavits, the provision of outlines of case, and the preparation and content of a Family Report. The court also considered the dismissal of outstanding interim applications and the reservation of costs.

In its reasoning, the court adopted a Minute of Orders dated 14 July 2017, which included mutual restraints on the parties from consuming illicit drugs when the child was in their care or for 24 hours prior, and from exposing the child to persons under the influence of illicit drugs. The court also directed that the matter be adjourned for a final hearing on 14 November 2018, with specific trial directions regarding the filing of affidavits and outlines of case. Crucially, pursuant to section 62G(2) of the *Family Law Act 1975*, the court ordered the preparation of a Family Report by a Family Consultant, detailing specific matters relevant to the child's best interests under sections 60CC, 61DA, and 65DAA of the Act. The court also dismissed all outstanding interim applications and reserved costs.

Orders

Orders of the court

There be orders, in terms of the Minute of Orders dated 14 July 2017 (“the Minute”) and further:

The Minute be placed upon the court file and marked Exhibit “A”.

(a) The solicitors for the Applicant do engross the Minute and deliver a clean, duly certified copy of the same in Microsoft Word Document format (“the Copy”) by email to Chambers of Judge Williams within 7 days.

associate.judgewilliams@federalcircuitcourt.gov.au

(b) Upon delivery of the Copy to the court, the within orders be extracted and the Copy be attached thereto.

The matter be adjourned to Federal Circuit Court of Australia on 14 November 2018 at 10.00am for Final Hearing, with an estimated hearing time of 2 days (“the Final Hearing”).

Trial Directions

The evidence of the parties and their witnesses be by way of affidavit (unless leave has otherwise been granted by the court) AND:

(a) The applicant electronically file and serve any further affidavits to be relied upon by the applicant at the final hearing not later than 21 days prior to the trial; and

(b) The respondent electronically file and serve any further affidavits to be relied upon by the respondent at the final hearing not later than 14 days prior to the trial; and

AND FURTHER that each party be permitted to rely upon only one affidavit by each of the parties and each witness unless:

(c) the second or subsequent affidavits of the witness (or party) do not contain any paragraph numbers or exhibit numbers used in the earlier affidavit or affidavits; or

(d) the party has first obtained leave of the court.

Not later than 4.00pm two business days prior to the trial all parties do electronically file and serve an Outline of Case Document (not exceeding 5 pages) including the following:

(a) a list of the material relied upon;

(b) a brief chronology listing significant events;

(d) a list of contentions with respect to each of the considerations relevant to determining the best interests of the child(ren) (s.60cc factors);

(e) a list of contentions relevant to the operation ofs.65DAA;

(f) a list of any other contentions relevant to the decision; and

(g) the actual orders sought.

That no party be permitted to rely upon an affidavit or outline if it is not filed in accordance with these orders (nor any affidavit not listed in their outline filed in accordance with these orders) unless they have first obtained leave of the court.

Family Report

Pursuant to s 62G(2) of the Family Law Act 1975, the parties and the said child/children X born (omitted) 2012 attend upon a Family Consultant nominated by the Regional Coordinator of Child Dispute Services of the Federal Circuit Court of Australia (Melbourne Registry) for the purposes of the preparation of a Family Report to be given to the Court no less than 35 days before the hearing date.

The Family Report to deal with the following matters:

(a) any views expressed by the child/ren and any factors (such as the child/ren’s maturity or level of understanding) that would affect the weight that the Court should place on those wishes;

(b) the matters set out in ss. 60CC, 61DA and 65DAA of the Family Law Act 1975;

(c) the likely effect on the child/ren if the Court were to make Orders in terms of the father’s/mother’s proposed orders;

(d) any other matters that the Family Consultant considers important to the welfare or best interests of the child/ren; and

The parties send copies of all of their Court documents to the Family Consultant within 7 days of being requested to do so by the Family Consultant.

10.

If a party is not represented by a lawyer, then within 7 days of being notified of the Family Consultant that party do deliver or cause to be delivered to the Family Consultant copies of the following documents:

(a) all relevant applications and responses filed by him/her, or filed on his/her behalf, in the current proceedings;

(b) all relevant affidavits filed by him/her, or filed on his/her behalf, in the current proceedings; and

11.

For the purpose of completing the Family Report the Family Consultant has permission to inspect the Court file and all documents produced on subpoena once permission to inspect has been granted to a party or the Independent Children’s Lawyer.

12.

The parties comply with all reasonable directions as to attendance upon the Family Consultant as and when required by the Family Consultant.

13.

If either party proposes to have the relevant Family Consultant available for cross examination purposes at the Final Hearing then such party will (if applicable authorise their lawyer to) notify the relevant Family Consultant of his or her need to attend Court no less than 7 days prior to the Final Hearing.

14.

Upon the Report being provided to the Court, the Court will provide a copy to each party (or if represented the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.

15.

Unless a party objects, in writing, within 14 days of the date of releasing the Report, copies of the Report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the child/ren to whom these proceedings relate:

(a) A Children’s Court;

(b) A child protection authority;

(d) A convener of any legal dispute resolution conference.

16.

Unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.

17.

Pursuant to rule 21.15 of the Federal Circuit Court Rules 2001, the Court certifies that it was reasonable for the parties to employ an advocate.

18.

All outstanding interim applications and applications in a case are dismissed.

19.

The parties’ costs be reserved.

AND THE COURT NOTES THAT:

A. Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

B. At the date on which a copy of the Report is to be provided to any of those identified above, it may not have been admitted into evidence and may be untested or if admitted would only form one part of the evidence in the proceedings.

C. Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court.

EXHIBIT “A”

MINUTE OF ORDERS

UNTIL FURTHER ORDER

That the Father and the Mother be mutually restrained from consuming or being under the influence of any illicit drug during any period when the child of the relationship X born (omitted) 2012 is in their respective care or for a 24 hour period before same.

That the Father and the Mother be mutually restrained from knowingly exposing the said child to any person consuming or under the influence of illicit drugs.

Dismiss all extant interim applications.

Adjourn all extant proceedings to a final hearing on 14 November 2018 for three days.

There be a full Family Report to be released no later than 30 days prior to the final hearing date.

The Mother undergo a hair follicle test every 6 months, and no later than 60 days prior to the final hearing date, with the intention that the outcome of the said test be available to the family consultant preparing the Family Report.

The Father pay for the costs of the said hair follicle tests.

Liberty to apply

Certify

10.

Otherwise the Orders made 3 February 2017 in relation to parenting Orders continue in full force and effect.

AND THE COURT NOTES

A. Paragraph 1 and 2 are agreed to by the Father and Mother without admissions as to the necessity for same.

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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