Stringer & Nissen - [2023] FedCFamC2F 61

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Stringer & Nissen [2023] FedCFamC2F 61

File number: SYC 1926 of 2019

Judgment of: JUDGE BECKHOUSE

Date of judgment: 30 January 2023

Catchwords:
FAMILY LAW – practice and procedure – discharge of single expert before completion of report – where supervised trainee alleged to have played active role in single expert interview process – whether single expert should be discharged due to involvement of a third party –whether single expert should seek consent of parties in relation to involvement of a third party – whether single expert should be discharged due to apprehended bias – application dismissed

FAMILY LAW – parenting – oral application by the father for parentage testing – application dismissed

Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Pt 7.1

Cases cited:
Bass & Bass (2008) FLC 93-366

Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 123

Kernot & Matson [2008] FamCA 756

Nagel & Clay [2019] FamCA 406

Nepean & Treloar [2010] FamCA 781

Toma & Doyle [2022] FedCFamC1F 215

Division: Division 2 Family Law

Number of paragraphs: 55

Date of hearing: 25 October 2022

Place: Sydney

Counsel for the Applicant: Ms Cotter-Moroz

Solicitor for the Applicant: John Hertz & Associates

Solicitor for the Respondent: The Respondent appearing in person

Solicitor for the Independent Children's Lawyer: Ms Barton of Legal Aid NSW Campbelltown Family Law
ORDERS

SYC 1926 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS STRINGER

Applicant

AND:
MR NISSEN

Respondent

INDEPENDENT CHILDREN’S LAWYER

order made by:

JUDGE BECKHOUSE

DATE OF ORDER:

30 jANUARY 2023

PENDING FURTHER ORDER THE COURT ORDERS THAT:
1.The Mother’s Application in a Proceeding filed 18 October 2022 seeking the discharge of Dr P is dismissed.
2.The Father’s oral application for paternity testing is dismissed.
3.The matter is listed for directions on 14 March 2023 at 9.30am via Microsoft Teams.

THE COURT NOTES THAT:
A.The Father appeared today and advised that he is intending to move to Queensland in the next few months and will most likely seek holiday time with the child in those circumstances.
B.The Independent Children’s Lawyer will discuss with the parties and Dr P the need for further interviews in relation to the change of circumstances.
C.On the next occasion (14 March 2023), the Court intends to make Orders to assist a final determination.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or…

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 Stringer & Nissen

Details

AGLC: Stringer & Nissen [2023] FedCFamC2F 61
Case: [2023] FedCFamC2F 61
Decision Date

CaseChat Overview and Summary

The mother, Ms Stringer, and the father, Mr Nissen, are in dispute about parenting orders for their son, X born in 2014. The mother filed an application seeking the discharge of the Single Expert, Dr P, alleging bias and procedural unfairness due to the involvement of a third party, Ms Q, during the interview process. The father orally applied for paternity testing. Both applications were opposed by the Independent Children’s Lawyer and the mother.

The court considered the legal issues of whether Dr P should be discharged due to the involvement of a third party and whether the father's oral application for paternity testing should be granted. The court examined the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) and relevant case law. The court found that discharging Dr P was premature as the processes provided for in the Rules and cross-examination at trial were the ordinary course of action for challenging an expert report. The court also found that the father's oral application for paternity testing was not supported by evidence and was not in X's best interests.

The court dismissed the mother's application to discharge Dr P and the father's oral application for paternity testing. The matter was listed for directions on 14 March 2023 at 9.30am via Microsoft Teams.

Orders