Ruttledge and Ruttledge and Ors - [2014] FamCA 791

FAMILY COURT OF AUSTRALIA

RUTTLEDGE & RUTTLEDGE AND ORS

[2014] FamCA 791

FAMILY LAW – PRACTICE AND PROCEDURE – Where the paternal grandparents were the interveners – Where the interveners were not seeking any parenting orders to be made in their favour – Where the children’s interests are independently represented in these proceedings by an Independent Children’s Lawyer – Whether there is inherent unfairness to the mother if two parties, separately represented, essentially in the same interest, participate in the trial of the proceedings as parties – No basis for continued intervention

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

Family Law Rules 2004 (Cth)

GPI Leisure Corp Limited v Herdman Investments Pty Ltd (No 3) (1990) 20 NSWLR 15

APPLICANT:

Mr Ruttledge

RESPONDENT:

Ms Ruttledge

INTERVENERS:

Ms Ruttledge Snr and Mr Ruttledge Snr

INDEPENDENT CHILDREN’S LAWYER:

Ms Doris Chan, Solicitor

FILE NUMBER:

BRC

13255

2007

DATE DELIVERED:

15 September 2014

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Kent J

HEARING DATE:

15 September 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Middleton

SOLICITOR FOR THE APPLICANT:

Schultz Toomey O’Brien Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Moore

SOLICITOR FOR THE RESPONDENT:

C Guilfoyle & Associates

SOLICITOR FOR THE INTERVENERS:

Ms Farnell, Solicitor, Family Law Solutions

Orders

It is ordered that:

1. The Interveners Mr and Ms Ruttledge Snr be removed as parties to these proceedings.

It is further ordered that:

Leave is given to the Mother’s witness Ms W to appear by electronic communication at the trial of these proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ruttledge & Ruttledge and Ors has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 13255 of 2007

Mr Ruttledge

Applicant

And

Ms Ruttledge

Respondent

And

Ms Ruttledge Snr and Mr Ruttledge Snr

Interveners

EX TEMPORE REASONS FOR JUDGMENT

Section 92 of the Family Law Act 1975 (Cth) (“the Act”) provides for persons to intervene in proceedings before the Court. Specifically, subsection (1) provides that the Court may make an order entitling a person to intervene in the proceedings.
On 5 November 2012, Mr and Ms Ruttledge Snr, the paternal grandparents of the children, the subject of these parenting proceedings, filed an Application in a Case seeking leave to intervene.
Federal Magistrate Coates (as his Honour then was) made an order on 19 November 2012 that the grandparents, that is the present interveners, have leave to intervene. In delivering reasons for that decision, his Honour said, commencing at paragraph 28:
Although the grandparents have not decided what course of action they intend taking and while, normally, I would want some further particulars, they clearly ask that they be allowed to intervene, a family report be obtained and that they [then] set out, after the release of the family report [what they will seek].
(Emphasis Added)
And at 29:
It is not unknown, unfortunately, that grandparents…

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 Ruttledge and Ruttledge and Ors

Details

AGLC: Ruttledge and Ruttledge and Ors [2014] FamCA 791
Case: [2014] FamCA 791
Decision Date: 15 September 2014

CaseChat Overview and Summary

In the matter of *Ruttledge and Ruttledge and Ors*, heard before Kent J, the primary dispute involved an application to remove Mr and Ms Ruttledge Snr as parties to the proceedings. Additionally, a separate application was made for leave to allow a witness, Ms W, to appear by electronic communication at the trial.

The court was required to determine two principal legal issues. Firstly, whether Mr and Ms Ruttledge Snr should be removed as parties to the proceedings. Secondly, whether leave should be granted for Ms W, a witness for the Mother, to participate in the trial via electronic communication.

The court ordered the removal of Mr and Ms Ruttledge Snr as parties to the proceedings. Furthermore, leave was granted to the Mother’s witness, Ms W, to appear by electronic communication at the trial.

Orders

Orders of the court

It is ordered that:

1. The Interveners Mr and Ms Ruttledge Snr be removed as parties to these proceedings.

It is further ordered that:

Leave is given to the Mother’s witness Ms W to appear by electronic communication at the trial of these proceedings.

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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