STAPLETON & BRYANT - [2016] FamCA 242

FAMILY COURT OF AUSTRALIA

STAPLETON & BRYANT

[2016] FamCA 242

FAMILY LAW – CHILDREN – various interim applications for parenting orders – 12 year old girl who has been subject of litigation all of her life – Contact not now occurring despite final orders in 2008 – Father brought contravention application in Federal Circuit Court against the mother which was dismissed – Mother denies father contact – Federal Circuit Court orders family report by private practitioner but that has not occurred – Father seeks a different order – Federal Circuit Court appoints Independent Children's Lawyer and father seeks discharge on the basis of pre-judgment and lack of impartiality – Application fails. Review of Senior Registrar's decision on that issue – Father seeks contact by the child and he and/or his parents – All applications not supported by evidence that would justify such orders – Applications dismissed – Case needs final hearing – First day hearing before a judge ordered.

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

Brown & Pedersen [1988] FamCA 14
Dasreef Pty Ltd v Hawchar (2011) HCA 21
Freeman and Freeman (1987) FLC 91-857
Goode and Goode (2006) FLC 93-286
Hatton, VF & Attorney-General of the Commonwealth of Australia [2000] FamCA 892; (2000) FLC 93-038
Nepean & Treloar [2010] FamCA 781
Portal Software International Pty Ltd v Bodsworth, [2005] NSWSC 1115
R and R [2003] FamCA 1180

APPLICANT:

Ms Stapleton

RESPONDENT:

Mr Bryant

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

MLC

553

2007

DATE DELIVERED:

15 April 2016

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

6 April 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Sudholz

SOLICITOR FOR THE APPLICANT:

Harper Buscombe & Madden Lawyers

THE RESPONDENT:

In Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Buchanan

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

McKean Park Lawyers

Orders

The father’s applications in a case filed, 23 December 2015, 8 January 2016, 10 February 2016, 17 March 2016 and 29 March 2016 are all dismissed.
The application of the mother for interim orders is otherwise dismissed.
That the mother and the father provide to the Independent Children’s Lawyer (and to each other) a list of counsellors, psychologists, psychiatrists and general medical practitioners that they and the child S have attended for the period from this date back to 11 April 2011.
That each parent comply with paragraph 3 of these orders by 4 pm on 29 April 2016.
That all extant applications for final orders are listed to a FIRST DAY before the Honourable Justice Thornton at 10.00am on 10 June 2016 for the purposes of listing the matter for final hearing.
That the parties and if represented, their legal practitioners, attend the first day of hearing.
That notwithstanding applications/responses have already been filed:
(a)by 4.00 pm on 13 May 2016, the applicant file and serve on all other parties, an amended application setting out with precision the orders to be sought at trial; and
(b)by 4.00 pm on 27 May…

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

AGLC: STAPLETON & BRYANT [2016] FamCA 242
Case: [2016] FamCA 242
Decision Date: 15 April 2016

CaseChat Overview and Summary

In the Federal Circuit Court, Justice Cronin considered various interim applications concerning a 12-year-old girl who has been involved in litigation throughout her life. The dispute involved the father's contravention application against the mother, which had been dismissed, and the mother's denial of contact between the child and the father. An earlier order for a family report by a private practitioner had not been fulfilled, leading the father to seek a different order. The father also sought the discharge of the Independent Children's Lawyer, alleging pre-judgment and a lack of impartiality, which was unsuccessful.

The court was required to determine the merits of the father's various applications for contact with the child, including contact with his parents, and the mother's interim applications. Additionally, the court needed to address the ongoing role of the Independent Children's Lawyer and the procedural steps necessary to bring the matter to a final hearing, given the history of litigation and the lack of evidence supporting the interim orders sought.

Justice Cronin dismissed the father's applications for contact and the mother's interim applications, finding that they were not supported by sufficient evidence to justify making such orders at this stage. The court emphasised the need for a final hearing to resolve the long-standing issues. To facilitate this, the court ordered that all extant applications for final orders be listed for a first-day hearing before Justice Thornton on 10 June 2016. The parties were directed to provide lists of medical practitioners they and the child had attended since April 2011, and to file amended applications and responses precisely detailing the orders sought at trial. Further directions were given for the filing of a summary of disputed issues, including the Independent Children's Lawyer's views, and for parties to consider negotiation or mediation. The court also mandated that legal practitioners present a statement of costs incurred and expected at the first day of hearing.

Orders

Orders of the court

The father’s applications in a case filed, 23 December 2015, 8 January 2016, 10 February 2016, 17 March 2016 and 29 March 2016 are all dismissed.

The application of the mother for interim orders is otherwise dismissed.

That the mother and the father provide to the Independent Children’s Lawyer (and to each other) a list of counsellors, psychologists, psychiatrists and general medical practitioners that they and the child S have attended for the period from this date back to 11 April 2011.

That each parent comply with paragraph 3 of these orders by 4 pm on 29 April 2016.

That all extant applications for final orders are listed to a FIRST DAY before the Honourable Justice Thornton at 10.00am on 10 June 2016 for the purposes of listing the matter for final hearing.

That the parties and if represented, their legal practitioners, attend the first day of hearing.

That notwithstanding applications/responses have already been filed:

(a) by 4.00 pm on 13 May 2016, the applicant file and serve on all other parties, an amended application setting out with precision the orders to be sought at trial; and

(b) by 4.00 pm on 27 May 2016, the respondent file and serve on all other parties, an amended response setting out with precision the orders to be sought at trial.

All parties, including the Independent Children’s Lawyer, file and serve a brief summary of the issues, both legal and factual, that are in dispute by 4.00 pm on 2 June 2016 and such summary be emailed to: …

To the extent that the Independent Children’s Lawyer has formed a view with respect to the orders sought by the parties, his or her view and any orders proposed form part of the summary to be filed.

10.

To the extent that any party wishes to participate in any form of negotiation or mediation prior to the final hearing, arrangements be made prior to the first day of hearing.

11.

That at the first day of hearing, each party represented by a lawyer have available to them and present to the Court, a statement setting out the costs incurred to that date, what amounts have been paid, from what source payments have been paid and what costs are expected to be incurred until the completion of the final hearing.

AND THE COURT NOTES:

If a party does not comply with paragraph 7 of these orders, the other party who has so complied may make an application to proceed on an undefended basis on the return date.

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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