Stone & Clifford - [2016] FCCA 2045

FEDERAL CIRCUIT COURT OF AUSTRALIA

STONE & CLIFFORD

[2016] FCCA 2045

Catchwords:
FAMILY LAW – Parenting – application for leave to reopen – alienation – whether final orders were made during the running of the trial.

SUBPOENA – addressed to school of children while decision reserved – documents produced in response to subpoena and inspected by both parties – no leave granted to do so – propriety of that procedure.

PRACTICE AND PROCEDURE – reopening – consideration of applicable authorities – leave granted.

Legislation:

Family Law Act 1975, ss.60CC, 69ZR

Cases cited:

In the Marriage of Rice & Asplund (1978) 6 Fam LR 570

KMB & PRL [2005] FamCA 1202
Naczek v Dowler (No 4) [2008] FamCA 653
Suell & Suell (Re-Opening) [2009] FamCA 55

Applicant:

MR STONE

Respondent:

MS CLIFFORD

File Number:

MLC 10819 of 2013

Judgment of:

Judge Wilson

Hearing date:

1 August 2016

Date of Last Submission:

1 August 2016

Delivered at:

Melbourne

Delivered on:

11 August 2016

REPRESENTATION

Counsel for the Applicant:

Dr R. Ingleby

Solicitors for the Applicant:

Glezer Lanteri & Associates

Counsel for the Respondent:

Ms M. Smallwood

Solicitors for the Respondent:

Pearsons Lawyers Pty Ltd

ORDERS

The applicant is granted leave to reopen the proceeding.
The matter is listed to this Court on a date to be fixed at 10.00 a.m. for further hearing with an estimated hearing time of one (1) day.
By no later than 4.00 p.m. seven days prior to the further hearing,

the applicant file and serve any affidavit material with respect to

Mr D and Mr G.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 10819 of 2013

MR STONE

Applicant

And

MS CLIFFORD

Respondent

REASONS FOR JUDGMENT

Introduction

In March 2016 I heard the trial of this parenting case and reserved my judgment. While the case was reserved, Mr Stone

(“the father”) applied to reopen.[1] He argued that he needed to adduce further evidence on a threshold issue. These are my reasons for decision on the application to reopen.
[1] Application in a Case filed 18 July 2016.

Synopsis

In my view, leave to reopen should be granted and I make such an order.

Background to this application

The trial of this proceeding was conducted over several days.[2]

It commenced as an application by the father for orders that there should be equal shared parental responsibility for the children,

X born (omitted) 2003, now aged 12 and Y born (omitted) 2007, now aged 9 (“the children”). The mother, Ms Clifford (“the mother”) proposed an order for sole parental responsibility. An array of associated orders and relief was sought by each party. However, throughout the life of the trial of this proceeding the mother has maintained a feverish determination for orders conferring upon her sole parental responsibility for the children.
[2] 15 – 17 March 2016.
During the trial, the evidence…

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 Stone & Clifford

Details

AGLC: Stone and Clifford [2016] FCCA 2045
Case: [2016] FCCA 2045
Decision Date: 11 August 2016

CaseChat Overview and Summary

In the matter of *Stone & Clifford*, heard before Judge Wilson, the applicant sought leave to reopen proceedings concerning parenting arrangements for the children. The dispute arose in circumstances where final orders were allegedly made during the course of the trial, and a subpoena was issued to the children's school while judgment was reserved, leading to the production and inspection of documents without express leave.

The court was required to determine whether to grant the applicant leave to reopen the proceeding. A further issue concerned the propriety of the procedure by which documents were produced in response to the subpoena and inspected by the parties while the decision was reserved, without specific leave being granted for this action.

Judge Wilson considered the applicable authorities on reopening proceedings and ultimately granted the applicant leave to do so. The court's reasoning, while not detailed in the provided text, indicates a favourable assessment of the grounds for reopening.

Consequently, the court ordered that the proceeding be reopened and listed for a further hearing on a date to be fixed. The applicant was also directed to file and serve any relevant affidavit material concerning Mr D and Mr G no later than seven days prior to this further hearing.

Orders

Orders of the court

The applicant is granted leave to reopen the proceeding.

The matter is listed to this Court on a date to be fixed at 10.00 a.m. for further hearing with an estimated hearing time of one (1) day.

By no later than 4.00 p.m. seven days prior to the further hearing,

the applicant file and serve any affidavit material with respect to

Mr D and Mr G.

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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