SANDE & DARWIN - [2020] FamCA 1087

FAMILY COURT OF AUSTRALIA

SANDE & DARWIN

[2020] FamCA 1087

FAMILY LAW – REVIEW OF DECISION OF SENIOR REGISTRAR – review dismissed – applicant for review relying on 12 grounds – none made out – respondent seeking six orders – all granted.

Family Law Act 1975 (Cth) ss 67Z, 68B, 68L, 114, 121
Family Law Rules 2004 (Cth) rr 18.08, 18.10

Howell v Carter (No 2) (2017) 317 FLR 151
In the Marriage of Pagliarella (1993) 16 Fam LR 688

APPLICANT:

Mr Sande

RESPONDENT:

Ms Darwin

INDEPENDENT CHILDREN’S LAWYER:

White Cleland Lawyers

FILE NUMBER:

MLC

7888

2019

DATE DELIVERED:

17 December 2020

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Wilson J

HEARING DATE:

13 November 2020 & 2 December 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Not applicable

SOLICITOR FOR THE APPLICANT:

Not applicable

COUNSEL FOR THE RESPONDENT:

Mr G. Thistleton

SOLICITOR FOR THE RESPONDENT:

Marcou and Associates Pty Ltd

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms S. Mansfield

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

White Cleland Lawyers

Orders

I dismiss the father’s application in a case filed on 17 September 2020 for a review of the orders made by Senior Registrar Hoult on 10 September 2020.
I dismiss all applications of the father in his 9 July 2020 application in a case.
The father is restrained from filing any further applications in a case without first being granted leave by a registrar or justice of this court.
The father forthwith comply with paragraphs 4 to 6 (inclusive) of the interim orders made by her Honour Judge Carter on 18 October 2019 for psychiatric assessment.
Paragraph 2 of the orders of her Honour Judge Carter made on 18 October 2020 for supervised time is suspended until further order following the outcome of the psychiatric assessment.
The independent children’s lawyer has liberty to inspect the documents produced under subpoena by Dr D and until further order the independent children’s lawyer is restrained from disclosing its contents to the father or his legal representatives.
Pursuant to s 68B(1) of the Family Law Act 1975 the father is restrained from –
(a) sending abusing, insulting, belittling, rebuking, intimidating, threatening or otherwise denigrating correspondence to the mother, and/or the independent children’s lawyer and/or the mother’s solicitor; and
(b) publishing and/or distributing a report of a case or part of a case, including information contained in a judgment, which identifies parties, related or associated persons, witnesses or others involved in the case.
I refer this proceeding to the docketed registrar for ongoing case management.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law…

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.

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Details

Case: [2020] FamCA 1087
Decision Date: 17 December 2020

CaseChat Overview and Summary

In the Family Court of Australia, Justice Wilson considered an application by the father for a review of orders made by Senior Registrar Hoult. The father had advanced twelve grounds in support of his review application, while the mother sought six specific orders.

The primary legal issues before the court were whether the Senior Registrar’s decision should be set aside and whether the mother’s requested orders should be granted. The court was required to determine if any of the father's grounds of review were made out and to consider the merits of the applications made by the mother.

Justice Wilson dismissed the father's application for review, finding that none of the twelve grounds advanced were established. The court reasoned that the father had failed to demonstrate any error in the Senior Registrar's decision. Consequently, all six orders sought by the mother were granted. These included orders restraining the father from filing further applications without leave, requiring compliance with previous orders for psychiatric assessment, suspending supervised time until further order, and placing restrictions on the independent children's lawyer's disclosure of documents. The father was also restrained from sending abusive correspondence and from publishing case reports, with the proceeding referred for ongoing case management.

Orders

Orders of the court

I dismiss the father’s application in a case filed on 17 September 2020 for a review of the orders made by Senior Registrar Hoult on 10 September 2020.

I dismiss all applications of the father in his 9 July 2020 application in a case.

The father is restrained from filing any further applications in a case without first being granted leave by a registrar or justice of this court.

The father forthwith comply with paragraphs 4 to 6 (inclusive) of the interim orders made by her Honour Judge Carter on 18 October 2019 for psychiatric assessment.

Paragraph 2 of the orders of her Honour Judge Carter made on 18 October 2020 for supervised time is suspended until further order following the outcome of the psychiatric assessment.

The independent children’s lawyer has liberty to inspect the documents produced under subpoena by Dr D and until further order the independent children’s lawyer is restrained from disclosing its contents to the father or his legal representatives.

Pursuant to s 68B(1) of the Family Law Act 1975 the father is restrained from –

(a) sending abusing, insulting, belittling, rebuking, intimidating, threatening or otherwise denigrating correspondence to the mother, and/or the independent children’s lawyer and/or the mother’s solicitor; and

(b) publishing and/or distributing a report of a case or part of a case, including information contained in a judgment, which identifies parties, related or associated persons, witnesses or others involved in the case.

I refer this proceeding to the docketed registrar for ongoing case management.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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