FEDERAL CIRCUIT COURT OF AUSTRALIA
| STONE & CLIFFORD (No.2) | [2016] FCCA 3311 |
| Catchwords: EVIDENCE – Mother an unreliable witness – her evidence requiring very careful scrutiny. TRIAL – “Final orders” – whether orders made in running in fact and in law orders that were properly characterised in law as “final orders” – they were interim orders. PRACTICE AND PROCEDURE – Revisiting of orders pronounced in running – extensive review of authorities. RE-OPENING OF CASE – Necessary because of deterioration in welfare of children – children now at risk whereas they were not when so-called “final orders” were pronounced. |
| Legislation: Evidence Act 1999 (Cth), s.140 Family Law Act 1975 (Cth), ss.4AB, 60B, 60CC |
| Cases cited: Bienstein v Bienstein (2003) 195 ALR 225 Alastair MacAdam and John Pyke, Judicial Reasoning and the Doctrine of Precedent in Australia (1998) Butterworths |
| Applicant: | MR STONE |
| Respondent: | MS CLIFFORD |
| File Number: | MLC 10819 of 2013 |
| Judgment of: | Judge Wilson |
| Hearing dates: | 15 – 17 March 2016 & 21 September 2016 |
| Date of Last Submission: | 21 September 2016 |
| Delivered at: | Melbourne |
Continue reading STONE & CLIFFORD (No.2)
Sign in free to access the full text
- AGLC
- STONE & CLIFFORD (No.2) [2016] FCCA 3311
- Case
- [2016] FCCA 3311
- Decision Date
CaseChat Overview and Summary
The central legal issues before the court were the characterisation of the prior orders as either final or interim, and the necessity of re-opening the case. This re-opening was prompted by evidence indicating the children were now at risk, a situation that had not existed when the earlier orders were pronounced. The court also had to consider the reliability of the mother's evidence, deeming it to require very careful scrutiny.
Judge Wilson reasoned that the prior orders, despite being pronounced in running, were in fact interim orders. The court extensively reviewed authorities on the re-opening of cases, concluding that re-opening was necessary due to the significant deterioration in the children's welfare, which had placed them at risk. The court applied principles relating to the best interests of the children and the court's power to vary or re-open orders when circumstances change and the welfare of the children is compromised.
The court made orders providing for equal shared parental responsibility for the children. These orders detailed communication protocols between the parents, including provisions for the father to communicate with the children via letter and send gifts, and for both parents to liaise with the children's school and other professionals. The mother was directed to keep the father informed of the children's address and any changes to telephone numbers, and to notify him of emergencies. The father was permitted to attend school functions and extra-curricular activities. Specific provisions were made regarding psychological treatment for the children, requiring the father's consent for specialist consultations and mandating participation in recommended psychological treatment. Both parents were ordered to attend a Parenting Orders Program for assessment and family counselling, and to follow its recommendations. The matter was adjourned for mention.
Orders
Orders of the court
1.
The parties have equal shared parental responsibility for the children
X born (omitted) 2003 (“X”) and Y born (omitted) 2007 (“Y”) (collectively “the children”).
2.
The father communicate with the children via letter and is permitted to send them or either of them gifts from time to time and the mother ensure that the children receive same.
3.
Both parties are authorised to liaise with and obtain information relating to the children from their school, including school reports, school photographs, school notices and the like.
4.
The mother at all times keep the father informed of the children’s residential address and each party advise the other of any change of telephone number within 24 hours of such change.
5.
The mother immediately inform the father of any emergencies, significant illness or injury associated with X and/or Y requiring the assistance of an ambulance, being taken to hospital or any hospital admission.
6.
All professionals involved in the care and well-being of the children are authorised to liaise with and disclose information and documents to both parents relating to the children.
7.
The father is permitted to attend all of X and/or Y’s school functions and extra-curricular activities, including but not limited to -
(a) parent/teacher interviews and other parent meetings;
(b) House Sports Days and Carnivals and equivalent sporting events;
(c) school concerts and presentations; and
(d) inter-school competitions or sporting club events.
8.
The mother -
(a) ensure that the children participate in extra-curricular activities including but not limited to swimming; and
(b) authorise and direct the school to inform the father of all non-attendances of the children.
9.
Neither X nor Y attend upon a specialist including a psychologist or counsellor without the father consenting to same and being able to liaise with the referring doctor.
10.
Each parent ensure that the children receive psychological treatment and attend for such appointments as may be recommended from time to time for their psychological issues as per recommendations made or to be made by Dr Z, her nominee, or agreed substitute.
11.
Reports prepared by Mr V, Ms B and Dr C in relation to X and Y be provided to X and/or Y’s school and all medical practitioners treating the children.
12.
Each parent:
(a) attend a Parenting Orders Program at Catholicare ((omitted)) (“the Program”) (ph. (omitted)) for assessment and family counselling;
(b) follow the recommendations of the Program administrator; and
(c) complete all aspects of the Program required by the Program administrator.
13.
On the day that the father first attends the Program for assessment, the father provide to the Program administrator a copy of any family report/s relating to the parents and the children, or any of them.
14.
Within 14 days of receipt, each party file and serve an affidavit exhibiting that parent’s Certificate of Engagement with the Program.
15.
The mother ensure that the children attend the Program as directed by the Program administrator (if applicable).
16.
The matter is adjourned to this Court on 4 December 2017 at
10.00 a.m. for mention.
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.