SMITH & GARDNER (No.2) - [2015] FCCA 2810

FEDERAL CIRCUIT COURT OF AUSTRALIA

SMITH & GARDNER (No.2)

[2015] FCCA 2810

Catchwords:
FAMILY LAW – Children – parenting orders – interim orders – one child aged 6 months – best interests of the child – parental responsibility – sole parental responsibility – family violence issues considered.

PRACTICE AND PROCEDURE – Representation – where applicant objects to respondent’s representation by Legal Aid Commission – allegations without foundation.

PRACTICE AND PROCEDURE – Subpoena – objection to subpoenas – allegations of fraud – abuse of process – subpoenas set aside – subpoena held defective – applicant restrained from issuing any further subpoena without leave of the Court.

PRACTICE AND PROCEDURE – Transfer to Family Court – length and complexity of matter – interests of the administration of justice – whether the resources of the Federal Circuit Court are sufficient to hear and determine the proceeding.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA

Federal Circuit of Australia Act 1999 (Cth), s.39
Federal Circuit Court Rules 2001, rr.15A.02, 15A.05, 15A.09

Cases cited:
Botany Bay Instrumentation & Control Pty Ltd & Ors v Stewart [1984] 3 NSWLR 98
Cahill & Cahill (No.2) [2013] FamCA 453
Commissioner for Railways v Small (1938) 38 SR (NSW) 564
R v Baines [1909] 1 KB 258
Smith & Gardner [2015] FCCA 2100

Applicant:

MR SMITH

Respondent:

MS GARDNER

Named Person:

SECRETARY DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

File Number:

SYC 3823 of 2015

Judgment of:

Judge Scarlett

Hearing date:

12 October 2015

Date of Last Submission:

12 October 2015

Delivered at:

Sydney

Delivered on:

19 October 2015

REPRESENTATION

Applicant:

In person

Counsel for the Respondent:

Mr Sperling

Solicitors for the Respondent:

Legal Aid NSW

Counsel for the Named Person:

Mr McGorey

Solicitors for the Named Person:

Crown Solicitor's Office (NSW)

ORDERS

The oral application by the Applicant that the Legal Aid Commission of New South Wales should be restrained from representing the Respondent is dismissed.
The subpoena issued on 1 September 2015 to Ms S Manager Casework St George CSC is set aside.
The subpoena issued on 31 August 2015 to The Proper Officer(s) Western Union Worldwide and Western Union Australia and Western Union Fiji and Western Union Bulgaria and Western Union New Zealand is set aside.
The Applicant is restrained from issuing any further subpoena in these proceedings without leave of the Court.
The Application in a Case filed on 7 August 2015 is discontinued.
UNTIL FURTHER ORDER the child [X] born [omitted] 2015 is to live with the Respondent mother who is to have sole parental responsibility for the child.
Subject to any Application for Costs, which must be made within twenty-eight (28) days of the date of this Order, the matter is transferred to the Family Court of Australia at Sydney under the provisions of section 39 of the Federal Circuit of Australia Act 1999.
IT IS NOTED that publication of this judgment under the pseudonym Smith & Gardner (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act

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 SMITH & GARDNER (No.2)

Details

AGLC: SMITH & GARDNER (No.2) [2015] FCCA 2810
Case: [2015] FCCA 2810
Decision Date: 19 October 2015

CaseChat Overview and Summary

This matter concerned parenting orders for a six-month-old child, [X]. The applicant father had initially sought urgent ex parte orders, some of which were granted, including restraining the child's removal from Australia and placing the child on the Family Law Watch List. Several interlocutory applications were before the court, including the applicant's objection to the respondent mother's representation by the Legal Aid Commission, objections to subpoenas issued by the applicant, and the respondent's application for the matter to be transferred to the Family Court of Australia and for sole parental responsibility for the child to be granted to her.

The court was required to determine the validity of the applicant's objection to the Legal Aid Commission's representation of the respondent, whether the subpoenas issued by the applicant were valid and should be set aside, and whether the proceedings should be transferred to the Family Court of Australia. Additionally, the court needed to consider the respondent's application for interim parenting orders, specifically regarding sole parental responsibility and the child's residence.

The court dismissed the applicant's objection to the Legal Aid Commission's representation, finding the allegations to be without foundation. The subpoenas issued by the applicant were set aside, with the court finding them defective and constituting an abuse of process. Consequently, the applicant was restrained from issuing any further subpoenas without leave of the court. The court also noted that the applicant's application to join his mother as an applicant was discontinued.

The court ordered that the child, [X], was to live with the respondent mother and that she was to have sole parental responsibility until further order. The matter was transferred to the Family Court of Australia at Sydney under section 39 of the Federal Circuit Court of Australia Act 1999, considering the length and complexity of the proceedings and the interests of the administration of justice. Applications for costs were to be made within twenty-eight days of the order.

Orders

Orders of the court

The oral application by the Applicant that the Legal Aid Commission of New South Wales should be restrained from representing the Respondent is dismissed.

The subpoena issued on 1 September 2015 to Ms S Manager Casework St George CSC is set aside.

The subpoena issued on 31 August 2015 to The Proper Officer(s) Western Union Worldwide and Western Union Australia and Western Union Fiji and Western Union Bulgaria and Western Union New Zealand is set aside.

The Applicant is restrained from issuing any further subpoena in these proceedings without leave of the Court.

The Application in a Case filed on 7 August 2015 is discontinued.

UNTIL FURTHER ORDER the child [X] born [omitted] 2015 is to live with the Respondent mother who is to have sole parental responsibility for the child.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Subject to any Application for Costs, which must be made within twenty-eight (28) days of the date of this Order, the matter is transferred to the Family Court of Australia at Sydney under the provisions of section 39 of the Federal Circuit of Australia Act 1999.IT IS NOTED that publication of this judgment under the pseudonym Smith & Gardner (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth). The substantive proceedings are for parenting orders in respect of the parties’ child, [X], born on [omitted] 2015, who is currently in the care of the mother. The Applicant brought an urgent Application seeking urgent ex parte orders, not all of which were granted, but I did make Orders that:a)The parties were restrained from removing or attempting to remove the child from the Commonwealth of Australia;b)The Australian Federal Police were requested to give effect to the order by placing the child’s name on the Family Law Watch List;c)The Australian Passport Office was requested to place the child’s name on Child Alert and not to issue any passport for him;d)A Commonwealth Information Order was issued; ande)The Application was adjourned to 24 August 2015 for mention[1].[1] Smith & Gardner [2015] FCCA 2100 As it turned out, I was away due to illness and the Application was administratively adjourned to 12 October. There are several interlocutory applications before the Court. First, the Applicant has forwarded a submission to the Court objecting to the Legal Aid Commission of New South Wales appearing for his wife, the Respondent, and taking issue with the Commission’s decision to brief counsel to appear. Second, the Secretary of the New South Wales Department of Family and Community Services has objected to a subpoena served on one of the Department’s employees, Ms S, requiring her to attend Court and produce documents. Third, the Applicant has issued a subpoena addressed to Western Union Worldwide and Western Union Australia, Fiji, Bulgaria and New Zealand seeking financial records back to 2009. The Respondent has objected to this subpoena. The Respondent has filed a Response seeking orders that:a)The interests of the parties’ infant child, [X], born on [omitted] 2015, should be independently represented by a lawyer under the provisions of s.68L of the Family Law Act 1975 (Cth);b)The substantive matter should be transferred to the Family Court of Australia at Sydney;c)The Respondent mother should have sole parental responsibility for the child [X];d)The child should live with the mother; ande)The child should spend no time and have no communication with the father. Mr Sperling of Counsel, for the Respondent, told the Court that the Order for an Independent Children’s Lawyer was not being pressed at that time. As no mention was made of the Order that the child spend no time or have no communication with the father, I have assumed that this Order was not being pressed at this time also. The father also filed an Application in a Case on 7 August 2015 seeking that his mother should be joined as an Applicant, but he told the Court that he did not intend to proceed with that Application and I have taken this to mean that the Application has been discontinued.

Ratio Decidendi

Legal Principle Established

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