Thayer and Caville and Ors - [2014] FCCA 3157

FEDERAL CIRCUIT COURT OF AUSTRALIA

THAYER & CAVILLE & ORS

[2014] FCCA 3157

Catchwords:
FAMILY LAW – Parenting matter involving Indigenous children – whether expert report, or part thereof, should be excluded – whether expert demonstrated relevant expertise in Indigenous and kinship issues – whether the report substantially deals with s.60CC(3)(h) considerations, s.61F, and the instructions given – no weight to be placed on those parts of the report dealing with Indigenous and kinship issues.

Legislation:

Evidence Act 1995, ss.79, 135, 136

Family Law Act 1975, ss.60CC(3)(h), 61F, 69ZT, 69ZX

Stephen Ralph, The Best Interests of the Aboriginal Child in Family Law Proceedings, (1998) 12(2) AJFL 140

Dasreef Pty Ltd v Hawchar [2011] HCA 21
Donnell & Dovey [2010] FamCAFC 15
Thayer & Caville & Ors [2013] FCCA 2265

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:

24 June 2014

Date of Last Submission:

24 June 2014

Delivered at:

Wollongong

Delivered on:

24 June 2014

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

Counsel for the Second and Third Respondents:

Ms Goodchild

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

THE COURT ORDERS THAT:

The hearing dates of 25 - 27 June 2014 be vacated.
The matter be adjourned to 13 April 2015 at 10:00am for Final Hearing (allocating 5 days).
Both parties file and serve any updating evidence upon which they intend to rely by no later than 3 April 2015.
Each party file and serve one consolidated affidavit in support of the orders sought by them together with any other witness’s affidavits by no later than 3 April 2015.
Neither party may rely on any documents filed after that date without leave of the Court and in the event of non compliance with these filing directions the Court will at its discretion either vacate the trial dates or list other matters with priority.
Both parties and the Independent Children’s Lawyer are granted leave to issue such Subpoena as they consider relevant to the issues before the Court.
In the event that either party wishes to cross examine the Family Report writer at the final hearing, that party shall provide written notice to the Family Report writer within 14 days from this date or in the event that the Family Report is not yet released then within 7 days from the date of receipt of the report and in the event that no notice is given to the Family Report writer and the Family Report writer is unavailable the Family Report will be admitted into evidence without cross examination subject only to evidentiary objection.
Each party file and serve an outline of case document…

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: [2014] FCCA 3157
Decision Date: 24 June 2014

CaseChat Overview and Summary

This matter concerned an application before Judge Altobelli in the Federal Circuit Court of Australia. The proceedings involved the parties Thayer and Caville, and other respondents, and dealt with issues pertaining to children. The court was required to make orders regarding the conduct of the proceedings, including the vacation of previously scheduled hearing dates and the adjournment of the matter to a new date for a final hearing.

The court was tasked with determining a range of procedural and substantive issues. These included the management of evidence, the filing of consolidated affidavits, and the conditions under which parties could rely on documents filed after a specified date. The court also had to consider the circumstances under which the Family Report writer could be cross-examined and the weight to be given to a particular report concerning Indigenous and kinship matters. Furthermore, the court was required to make interim orders concerning the first respondent mother's time with the children and the preparation of terms of reference for a further Family Report.

In its reasoning, the court applied principles of case management and procedural fairness to ensure the efficient and just progression of the proceedings. It set strict timelines for the filing of evidence and outlines of argument, with sanctions for non-compliance. The court also made specific directions regarding the Family Report writer and the admission of evidence, balancing the need for thorough investigation with the practicalities of the hearing. Interim orders were made to address the immediate welfare of the children, reflecting the court's paramount consideration of the best interests of the child.

The court ultimately ordered the vacation of the hearing dates of 25-27 June 2014 and adjourned the matter to 13 April 2015 for a five-day final hearing. It issued detailed directions for the filing of evidence, affidavits, and outlines of case, and granted leave for the parties and the Independent Children's Lawyer to issue subpoenas. Interim orders were made concerning the first respondent mother's supervised time with the children and the preparation of a new Family Report, while also directing that no weight be given to a specific report regarding Indigenous and kinship matters.

Orders

Orders of the court

THE COURT ORDERS THAT:

The hearing dates of 25 - 27 June 2014 be vacated.

The matter be adjourned to 13 April 2015 at 10:00am for Final Hearing (allocating 5 days).

Both parties file and serve any updating evidence upon which they intend to rely by no later than 3 April 2015.

Each party file and serve one consolidated affidavit in support of the orders sought by them together with any other witness’s affidavits by no later than 3 April 2015.

Neither party may rely on any documents filed after that date without leave of the Court and in the event of non compliance with these filing directions the Court will at its discretion either vacate the trial dates or list other matters with priority.

Both parties and the Independent Children’s Lawyer are granted leave to issue such Subpoena as they consider relevant to the issues before the Court.

In the event that either party wishes to cross examine the Family Report writer at the final hearing, that party shall provide written notice to the Family Report writer within 14 days from this date or in the event that the Family Report is not yet released then within 7 days from the date of receipt of the report and in the event that no notice is given to the Family Report writer and the Family Report writer is unavailable the Family Report will be admitted into evidence without cross examination subject only to evidentiary objection.

Each party file and serve an outline of case document not less than 7 clear business days prior to the hearing setting out:

(a) a precise Minute of Orders Sought;

(b) a list of documents to be read in their case;

(c) a brief summary of argument touching upon the matters set out s.60CC of the Act with reference to the relevant evidence relied on.

In the event of any applicable setting down and/or hearing fee not having been reduced on the basis of financial hardship, the Applicant and Respondent shall pay any such fee equally at least 14 days prior to the hearing date.

10.

Leave granted to the parties to relist on 7 day’s notice.

11.

In the event that the matter resolves during the adjourned period, the parties are at liberty to file terms in the Registry for the purposes of orders being made in Chambers and subject to compliance with Rule 13.04A orders will be made in Chambers.

PENDING FURTHER ORDER THE COURT ORDERS THAT:

12.

The First Respondent Mother be permitted to spend time with the children when the children are in the care of the Second and/or Third Respondent and such time is to be supervised save for where the Second and/or Third Respondent consider that supervision is not necessary based on their assessment of the First Respondent Mother’s presentation (being both her physical and psychological presentation), with such unsupervised time to allow for incidental activities such as taking the children to the bus stop and collecting them from activities in and around (omitted), such time not to exceed one hour.

13.

The parties will jointly prepare terms of reference for a further Family Report having regard to the decision made today.

14.

No weight be given to the report of Dr R dated 16 June 2014, insofar as it relates to Indigenous or kinship matters.

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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