Rowe and Helbig (No 2) - [2014] FamCA 942

FAMILY COURT OF AUSTRALIA

ROWE & HELBIG (NO. 2)

[2014] FamCA 942

FAMILY LAW – CHILDREN – Application in a Case – Where the mother seeks a stay of previously made interim parenting orders, which reversed the residence of the two subject children – Discussion of the mother’s Notice of Appeal – Where the mother seeks, in the alternative, fresh orders that the children are returned to either her care or that of the maternal grandparents – Where the mother sought to challenge the previous orders on numerous grounds – Where rupturing the children’s current residence with the father and moving them to live with either the mother or the maternal grandparents would not likely be in their best interests when it is a temporary measure designed to last until only the final hearing in January 2015 – Mother’s application dismissed.

FAMILY LAW – CHILDREN – Application in a Case – Where the Independent Children Lawyer seeks an order compelling a Family Consultant to help the father successfully implement the existing interim orders – Where the Independent Children’s Lawyer’s proposal for orders to ensure satisfactory implementation of the existing interim orders is a superior proposal – An order made pursuant to s 68L of the Family Law Act 1975 (Cth).

FAMILY LAW – COSTS – Where the father sought costs against the mother – Where the existing interim orders were made on an ex-parte basis – Where this hearing was the vehicle by which the mother was afforded procedural fairness through the opportunity to be heard – Application dismissed.

Family Law Act 1975 (Cth) ss 65L, 117
Family Law Rules 2004 (Cth) r 5.10

Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106
Chapa & Chapa [2013] FamCAFC 52
Federal Commissioner of Taxation v Myer Emporium Ltd (No.1) (1986) 160 CLR 220
Goode & Goode (2006) FLC 93-286
Jennings Constructions Ltd v Burgundy Royale Investments Pty Ltd (No.1) (1986) 161 CLR 681
Sheldon & Weir (Stay Application) [2011] FamCAFC 5
Trahn & Long (No.2) [2008] FamCAFC 194

APPLICANT:

Mr Rowe

RESPONDENT:

Ms Helbig

INTERVENOR:

Secretary, NSW Department of Family & Community Services

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

FILE NUMBER:

PAC

5421

2010

DATE DELIVERED:

23 October 2014

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Austin J

HEARING DATE:

23 October 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms P Merkin

SOLICITOR FOR THE APPLICANT:

N/A

COUNSEL FOR THE RESPONDENT:

N/A

SOLICITOR FOR THE RESPONDENT:

Family Law Legal

COUNSEL FOR THE INTERVENER:

N/A

SOLICITOR FOR THE APPLICANT:

Crown Solicitor’s Office

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

N/A

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Legal Aid NSW

Orders

Pursuant to s 65L(1)(b) of the Family Law Act, the Director of the Child Dispute Services within the Newcastle Registry of the Family Court of Australia shall, in her discretion, instruct a Family Consultant to give the father such assistance as the Director deems is reasonably required by him to comply with and carry out the Orders made by Justice Cleary on…

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 Rowe and Helbig (No 2)

Details

AGLC: Rowe and Helbig (No 2) [2014] FamCA 942
Case: [2014] FamCA 942
Decision Date: 23 October 2014

CaseChat Overview and Summary

In *Rowe and Helbig (No 2)*, Austin J of the Family Court of Australia considered applications by the mother and the Independent Children's Lawyer (ICL) concerning interim parenting orders that had reversed the residence of two children. The mother sought a stay of these orders, or alternatively, fresh orders for the children to reside with her or their maternal grandparents. The ICL sought orders compelling a Family Consultant to assist the father in implementing the existing interim orders. The father sought costs against the mother.

The primary legal issues before the court were whether to grant the mother's application to stay or vary the existing interim parenting orders, and whether to make orders sought by the ICL to facilitate the implementation of those orders. The court also considered the father's application for costs.

Austin J dismissed the mother's application, reasoning that rupturing the children's current residence with the father and moving them to live with either the mother or the maternal grandparents would not likely be in their best interests, particularly as such a move would be a temporary measure until the final hearing. The court found the ICL's proposal for orders to ensure satisfactory implementation of the existing interim orders to be superior and made orders pursuant to s 68L of the *Family Law Act 1975* (Cth) to facilitate this. The father's application for costs was dismissed, as the hearing provided the mother with procedural fairness to be heard regarding the previously made ex-parte interim orders.

Orders

Orders of the court

Pursuant to s 65L(1)(b) of the Family Law Act, the Director of the Child Dispute Services within the Newcastle Registry of the Family Court of Australia shall, in her discretion, instruct a Family Consultant to give the father such assistance as the Director deems is reasonably required by him to comply with and carry out the Orders made by Justice Cleary on 9 October 2014.

Leave is granted to the father to provide to the Director of Child Dispute Services and the Family Consultant:

(a) A sealed copy of these Orders;

(b) A sealed copy of the Orders made 9 October 2014;

(d) A copy of the single expert report dated 29 September 2014.

Otherwise:

(a) The Application in a Case filed by the Independent Children’s Lawyer on 21 October 2014 is dismissed;

(b) The Amended Application in a Case filed by the mother on 22 October 2014 is dismissed;

(d) Any and all outstanding applications for interim orders are dismissed.

NOTATIONS

(A) The proceedings remain listed for final hearing before Justice Cleary on 19 January 2015.

(B) The father’s Amended Application-Contravention filed on 16 April 2014 remains outstanding.

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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