Sienna and Sienna and Ors - [2019] FCCA 792

FEDERAL CIRCUIT COURT OF AUSTRALIA

SIENNA & SIENNA & ORS

[2019] FCCA 792

Catchwords:
FAMILY LAW – Parenting and Property – application in a case by paternal grandparents to be joined to parenting and property proceedings – granted.

Legislation:

Family Law Act 1975 (Cth), ss.65C(ba), 60B

Federal Circuit Court Rules 2011 (Cth), r.11.03

Applicant:

MS SIENNA

First Respondent:

MR SIENNA

Second Respondent:

MS A SIENNA

Third Respondent:

MR B SIENNA

File Number:

SYC 5044 of 2018

Judgment of:

Judge Bruce Smith

Hearing date:

5 February 2019

Delivered at:

Sydney

Delivered on:

5 February 2019

REPRESENTATION

Counsel for the Applicant:

Ms Parker

Solicitors for the Applicant:

Parker Law

Counsel for the First Respondent:

Ms Debby

Solicitors for the First Respondent:

McPhee Kelshaw

Counsel for the Second and Third Respondents:

Mr Batey

Solicitors for the Second and Third Respondents:

Jacqueline Kyle Family Law

ORDERS

The matter be listed on 18 July 2019 at 9:30am for mention.
Any Application in a Case or Objection to Subpoena made returnable by the Registry from the date of these orders until the next adjourned date will not be heard on that date without the express leave of Judge B Smith.
Ms A Sienna (“second respondent”) and Mr B Sienna (“third respondent”) be granted leave to intervene in these proceedings pursuant to Rule 11.03 of the Federal Circuit Court Rules.
The obligation to comply with the subpoena filed on 15 October 2018 issued to the third respondent be stayed pending further order of this Court.
Within 28 days, each party comply with their obligations under Part 24 of the Federal Circuit Court Rules 2011 (Cth) for full and frank disclosure.
Within 28 days, the second and third respondents file and serve their material in support of the orders sought by them, upon which they intend to rely.
The second and third respondents are excused from filing a Financial Statement.
Pursuant to section 62G(2) of the Family Law Act1975 (Cth) the parties and the child of the relationship attend upon a Family Consultant nominated by the Manager, Child Dispute Services on a date and at times to be advised for the purposes of the preparation of a Family Report and in particular:
(a)to consider the factors in sections 60CC and 65DAA of the Family Law Act1975 (Cth);
(b)to consider issues raised in the Family Consultant’s Memorandum to Court;
(c)to profile of the parents (and other significant adults);
(d)to assess the parents interactions (and those of other significant adults);
(e)to assess the children’s developmental and emotional state;
(f)to assess the relationship of the children to the parents (and other significant persons);
(g)to ascertain the wishes of the children unless inappropriate by reason of age or other special circumstance;
(h)to assess the proposed and actual home environments; and
(i)to assess the proposals of each party as to the children’s future.
The Family Consultant is granted leave to inspect all documents produced in response to Subpoena.
The report be released as soon as practicable, and unless otherwise arranged with…

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: [2019] FCCA 792
Decision Date: 5 February 2019

CaseChat Overview and Summary

In the Federal Circuit Court, Judge Bruce Smith considered an application by Ms A Sienna (the second respondent) and Mr B Sienna (the third respondent) to be joined to parenting and property proceedings involving the first respondent and the applicant. The paternal grandparents sought to intervene in these proceedings.

The court was required to determine whether to grant the paternal grandparents leave to intervene in the existing family law proceedings. Additionally, the court needed to address the status of a subpoena issued to the third respondent and outline the procedural steps for the ongoing litigation, including disclosure obligations, the preparation of a Family Report, and arrangements for a Financial Conciliation Conference.

The court granted the second and third respondents leave to intervene pursuant to Rule 11.03 of the Federal Circuit Court Rules. The obligation to comply with a subpoena issued to the third respondent was stayed pending further order. The court also ordered that each party comply with their obligations for full and frank disclosure within 28 days, and that the second and third respondents file and serve their supporting material within the same timeframe, while being excused from filing a Financial Statement. Furthermore, the court directed that the parties and the child attend upon a Family Consultant for the preparation of a Family Report, detailing specific factors to be considered under the *Family Law Act 1975* (Cth). The court also made interim orders and scheduled a compliance check and a Financial Conciliation Conference.

Orders

Orders of the court

The matter be listed on 18 July 2019 at 9:30am for mention.

Any Application in a Case or Objection to Subpoena made returnable by the Registry from the date of these orders until the next adjourned date will not be heard on that date without the express leave of Judge B Smith.

Ms A Sienna (“second respondent”) and Mr B Sienna (“third respondent”) be granted leave to intervene in these proceedings pursuant to Rule 11.03 of the Federal Circuit Court Rules.

The obligation to comply with the subpoena filed on 15 October 2018 issued to the third respondent be stayed pending further order of this Court.

Within 28 days, each party comply with their obligations under Part 24 of the Federal Circuit Court Rules 2011 (Cth) for full and frank disclosure.

Within 28 days, the second and third respondents file and serve their material in support of the orders sought by them, upon which they intend to rely.

The second and third respondents are excused from filing a Financial Statement.

Pursuant to section 62G(2) of the Family Law Act 1975 (Cth) the parties and the child of the relationship attend upon a Family Consultant nominated by the Manager, Child Dispute Services on a date and at times to be advised for the purposes of the preparation of a Family Report and in particular:

(a) to consider the factors in sections 60CC and 65DAA of the Family Law Act 1975 (Cth);

(b) to consider issues raised in the Family Consultant’s Memorandum to Court;

(d) to assess the parents interactions (and those of other significant adults);

(e) to assess the children’s developmental and emotional state;

(f) to assess the relationship of the children to the parents (and other significant persons);

(g) to ascertain the wishes of the children unless inappropriate by reason of age or other special circumstance;

(h) to assess the proposed and actual home environments; and

(i) to assess the proposals of each party as to the children’s future.

The Family Consultant is granted leave to inspect all documents produced in response to Subpoena.

10.

The report be released as soon as practicable, and unless otherwise arranged with Chambers.

11.

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.

12.

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 Children to whom these proceedings relate:

(a) a Children’s Court;

(b) a child protection authority;

13.

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

14.

Following release of the Family Report and prior to the adjourned date, the parties file and serve a minute of final order sought by each of them as to parenting.

15.

The parties are to attend a Financial Conciliation Conference in this Registry on 10 May 2019 at 10AM.

16.

The Registrar will undertake a compliance check on 26 April 2019 at 9AM.

17.

Each legal representative and any self-represented party is to attend the compliance check by telephone.

18.

The dial-in details are:

(a) … and guest passcode number …

19.

Each party must within 28 days from this date:

(a) do all things to provide full and frank disclosure to the other party including but not limited to such of the matters set out in Rule 24.03 of the Federal Circuit Court Rules 2011 (Cth) as are relevant to these proceedings;

(b) comply with Rule 24.04 of the Federal Circuit Court Rules 2011 (Cth) by serving on each other copies of the documents provided for therein as

(c) provide confirmation that the Trustee of any fund sought to be the subject of a splitting order has been accorded procedural fairness.

20.

At least 7 days before the Conciliation Conference the parties must deliver to the Registrar conducting the Conciliation Conference a collaboratively prepared single balance sheet setting out all assets, liabilities and financial resources which each party asserts are relevant to the determination of this matter, and the document shall have footnotes which explain the differences between the parties in relation to any disputed item.

21.

Any documents required for the Conciliation conference are to be emailed to Sydneyconciliationconferences@familycourt.gov.au.

22.

At least 7 days before the Conciliation Conference each party must send to the other and to the Registrar copies of:

(a) a completed Conciliation Conference document, being a document setting out that party’s assertions as to:

(i) the percentage share of the nett asset pool to which they are entitled;

(ii) the respective contributions of each party to the nett asset pool (expressed as percentages);

(iii) any adjustment to be made pursuant to section 75(2) of the Family Law Act 1975 (Cth) (expressed as a percentage); and

(iv) the facts alleged by each party in support of each of the foregoing.

(b) a market appraisal or valuation of any asset or financial resource, the value of which is in dispute, and valuations of any superannuation interests;

(c) if there is a significant discrepancy between the market appraisals obtained by the parties, a single expert valuation of all relevant property;

(d) the orders required to give effect to their settlement proposal;

23.

Prior to the Conciliation Conference a lawyer must give to their client written notice setting out:

(a) the costs and disbursements incurred by the party up to and including the event; and

(b) the estimated future costs and disbursements of the party up to and including each future court event.

24.

Pursuant to Rule 13.04 of the Federal Circuit Court Rules 2011 (Cth), Interim Orders be made in accordance with the document marked “SYC5044/2018” dated this day 5 February 2019 and attached hereto.

25.

The Solicitor for the first respondent is to forward an electronic typescript in Word form of the document marked “SYC5044/2018” to the Court within 48 hours.

AND THE COURT NOTES THAT:

A. The Court will consider an ICL at a later date if the matter cannot be resolved.

B. Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 (Cth), 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 those particulars are included in these orders.

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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