Thayer and Caville and Ors - [2015] FCCA 1039

FEDERAL CIRCUIT COURT OF AUSTRALIA

THAYER & CAVILLE & ORS

[2015] FCCA 1039

Catchwords:
FAMILY LAW – Parenting case – many complex issues – adjourned due to parentage and kinship issues – whether to transfer to Family Court of Australia.

Legislation:

Federal Circuit Court Act 1999, s.39

Thayer & Caville & Ors [2014] FCCA 3157

Applicant:

MR THAYER

First Respondent:

MS CAVILLE

Second Respondent:

MS P CAVILLE

Third Respondent:

MS J CAVILLE

File Number:

WOC 602 of 2013

Judgment of:

Judge Altobelli

Hearing date:

20 February 2015

Date of Last Submission:

20 February 2015

Delivered at:

Wollongong

Delivered on:

20 February 2015

REPRESENTATION

Counsel for the Applicant:

Ms Humphreys

Solicitors for the Applicant:

Bailey Mullard Lawyers

Counsel for the First Respondent:

Ms Mahony

Solicitors for the First Respondent:

Women's Legal Service NSW

Counsel for the Second and Third Respondents:

Ms Saw

Solicitors for the Second and Third Respondents:

Shoalcoast Community Legal Centre

Counsel for the Independent Children's Lawyer:

Mr Alexander

Solicitors for the Independent Children's Lawyer:

Verekers Lawyers

ORDERS

BY CONSENT PENDING FURTHER ORDER THE COURT ORDERS THAT:

Pursuant to Rule 13.04 of the Federal Circuit Court Rules 2001, Orders be made in accordance with the document marked “A” dated this day 14 April 2015 and attached hereto.
Pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders

THE COURT FURTHER ORDERS THAT:

The Final Hearing listed for 14 – 16 April 2015 be vacated.
The matter be transferred to the Family Court of Australia, Sydney Registry, to be listed before a Registrar on 15 June 2015 at 10:00am (changed in chambers).

THE COURT NOTES THAT:

A.This is a complex case involving 3 children of Indigenous background who have a non-Indigenous father.
B.There are aspects of the evidence of Dr R and Mr S that conflict.
C.There are serious allegations about family violence, mental health issues, neglect and drug and alcohol abuse that require factual findings.
D.There are significant kinship issues pertaining to the children.
E.The matter has twice been listed for hearing in Wollongong. On the first occasion, the matter as adjourned as a result of rulings on the admissibility of parts of Dr R’s evidence, and the need for expert evidence on Indigenous kinship issues. On the second occasion, the matter could not proceed as all parties agreed that there were real issues about paternity that first needed to be determined.
F.The current estimated hearing time is conservatively 6 days.
G.This Court recommend that, if at all possible, a final hearing be expedited once the paternity issues are resolved.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONG

WOC 602 of 2013

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

Case: [2015] FCCA 1039
Decision Date: 20 February 2015

CaseChat Overview and Summary

In the Federal Circuit Court, Judge Altobelli made orders by consent concerning a complex family law matter involving three children of Indigenous background and their non-Indigenous father. The proceedings were vacated from their scheduled final hearing and transferred to the Family Court of Australia, Sydney Registry, for a listing before a Registrar.

The court was required to address significant issues including conflicting evidence from experts, serious allegations of family violence, mental health concerns, neglect, and substance abuse, all of which necessitated factual findings. Furthermore, the case involved complex kinship issues pertinent to the Indigenous heritage of the children, and a prior determination of paternity was identified as a prerequisite for proceeding.

The court's reasoning, as evidenced by the orders made, reflects the need to manage a case with substantial evidentiary and factual complexities. The vacating of the final hearing and transfer to the Family Court, along with the scheduling of a Registrar's mention, indicates a strategic approach to resolve preliminary issues, such as paternity, before a lengthy final hearing. The court also noted the necessity for expert evidence on Indigenous kinship and recommended expediting the final hearing once paternity is resolved, acknowledging the estimated six-day hearing time.

Orders

Orders of the court

BY CONSENT PENDING FURTHER ORDER THE COURT ORDERS THAT:

Pursuant to Rule 13.04 of the Federal Circuit Court Rules 2001, Orders be made in accordance with the document marked “A” dated this day 14 April 2015 and attached hereto.

Pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders

THE COURT FURTHER ORDERS THAT:

The Final Hearing listed for 14 – 16 April 2015 be vacated.

The matter be transferred to the Family Court of Australia, Sydney Registry, to be listed before a Registrar on 15 June 2015 at 10:00am (changed in chambers).

THE COURT NOTES THAT:

A. This is a complex case involving 3 children of Indigenous background who have a non-Indigenous father.

B. There are aspects of the evidence of Dr R and Mr S that conflict.

C. There are serious allegations about family violence, mental health issues, neglect and drug and alcohol abuse that require factual findings.

D. There are significant kinship issues pertaining to the children.

E. The matter has twice been listed for hearing in Wollongong. On the first occasion, the matter as adjourned as a result of rulings on the admissibility of parts of Dr R’s evidence, and the need for expert evidence on Indigenous kinship issues. On the second occasion, the matter could not proceed as all parties agreed that there were real issues about paternity that first needed to be determined.

F. The current estimated hearing time is conservatively 6 days.

G. This Court recommend that, if at all possible, a final hearing be expedited once the paternity issues are resolved.

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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