SHEPHERD & STEVENSON - [2013] FCCA 110

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHEPHERD & STEVENSON

[2013] FCCA 110

Catchwords:
FAMILY LAW – Independent Children's Lawyer’s costs – opposed by the father – the father’s application for child inclusive counselling – where opposed by the Independent Children’s lawyer and the mother.

Legislation:

Family Law Act 1975, ss.10F, 13C, 60CC, 117

Cases cited:
Calvert & Calvert [2008] FMCAfam 101

Applicant:

MR SHEPHERD

Respondent:

MS STEVENSON

File Number:

SYC 6311 of 2011

Judgment of:

Judge Kemp

Hearing dates:

13 and 14 March 2013

Date of Last Submission:

9 April 2013

Delivered at:

Sydney

Delivered on:

24 April 2013

REPRESENTATION

Counsel for the Applicant:

Mr O'Connor

Solicitors for the Applicant:

Self represented

Counsel for the Respondent:

Mr Blackah

Solicitors for the Respondent:

Miller Goddard Solicitors

Counsel for the Independent Children’s Layer:

Mr Guterres

Solicitors for the Independent Children's Lawyer:

Hamish Cumming Family Lawyers

ORDERS

That subject to the orders made on 14 March 2013, there be no further orders for any ongoing counselling for the children, X, born (omitted) 1997 (currently aged 15 years), Y, born (omitted) 1999 (currently aged 13 years), and Z, born (omitted) 2002 (currently aged 11 years), save that the parties do all things reasonably required to encourage the engagement of any of the children with Unifam pursuant to order 10 made on 14 March 2013, if so directed by Unifam in writing.
A copy of these orders and reasons to be made available to Unifam.
That there be no order as to costs between the father and the Independent Children's Lawyer.
That the matter be removed from the active pending cases list.

IT IS NOTED that publication of this judgment under the pseudonym Shepherd & Stevenson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYC 6311 of 2011

MR SHEPHERD

Applicant

And

MS STEVENSON

Respondent

REASONS FOR JUDGMENT

These are parenting proceedings commenced by the applicant father on 17 October 2011 seeking final parenting orders with respect to the children, X, born (omitted) 1997 (currently aged 15 years)(“X”), Y, born (omitted) 1999 (currently aged 13 years)(“Y”), and Z, born (omitted) 2002 (currently aged 11 years) (“Z”), (“the children”).
The mother filed an amended response on 4 March 2013, which sought orders that the father’s application be dismissed together with an order for costs.
Following the commencement of the proceedings and on 6 February 2012, being the first return date of the father’s application, the Court made various procedural orders and directed that the parties attend a Child Dispute Conference with a family consultant nominated by the Child Dispute Section in this registry on 7 March 2012 and for the purposes of the Family Law Act 1975 (“the Act”), that conference was to be reportable.
Ms B was the family consultant who saw the parties in the Child Dispute Conference. The Court noted the agreement of the parties recorded in the memorandum from Ms B that they had agreed to commence family counselling primarily to…

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 SHEPHERD & STEVENSON

Details

AGLC: Shepherd and Stevenson [2013] FCCA 110
Case: [2013] FCCA 110
Decision Date: 24 April 2013

CaseChat Overview and Summary

In the matter of Shepherd & Stevenson, heard by Judge Kemp, the dispute concerned ongoing counselling for three children, X, Y, and Z. The court was asked to determine whether further orders for ongoing counselling for the children were necessary, beyond those previously made on 14 March 2013.

The central legal issue before the court was the extent to which it should continue to order counselling services for the children, given their ages and the existing court orders. The court was required to consider the best interests of the children in making this determination.

Judge Kemp reasoned that, subject to the existing orders of 14 March 2013, no further orders for ongoing counselling would be made. However, the parties were directed to encourage the children's engagement with Unifam if Unifam advised in writing that such engagement was required. The court also ordered that a copy of its orders and reasons be provided to Unifam, and that there be no order as to costs between the father and the Independent Children's Lawyer. The matter was subsequently removed from the active pending cases list.

Orders

Orders of the court

That subject to the orders made on 14 March 2013, there be no further orders for any ongoing counselling for the children, X, born (omitted) 1997 (currently aged 15 years), Y, born (omitted) 1999 (currently aged 13 years), and Z, born (omitted) 2002 (currently aged 11 years), save that the parties do all things reasonably required to encourage the engagement of any of the children with Unifam pursuant to order 10 made on 14 March 2013, if so directed by Unifam in writing.

A copy of these orders and reasons to be made available to Unifam.

That there be no order as to costs between the father and the Independent Children's Lawyer.

That the matter be removed from the active pending cases list.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.