Thompsett and Keen and Ors - [2019] FamCA 673

FAMILY COURT OF AUSTRALIA

THOMPSETT & KEEN AND ORS

[2019] FamCA 673

FAMILY LAW – PRACTICE AND PROCEDURE – Application of s 102NA of the Family Law Act 1975 (Cth) – where there are significant allegations of family violence made by the 1^st Respondent against the 2^nd Respondent – where the family violence has not been proven – where the allegations of family violence are of such a nature that they justify a ban on personal cross-examination.

Family Law Act 1975 (Cth) s 102NA.

APPLICANT:

Mr Thompsett

1^st RESPONDENT:

Ms Keen

2^nd RESPONDENT:

Mr Pemberton

3^rd RESPONDENT:

Ms J

INTERVENOR:

Department of Communities and Justice

INDEPENDENT CHILDREN’S LAWYER:

Mills Oakley

FILE NUMBER:

CAC

678

2016

DATE DELIVERED:

16 September 2019

PLACE DELIVERED:

Canberra

PLACE HEARD:

Canberra

JUDGMENT OF:

Gill J

HEARING DATE:

16 September 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Elringtons

SOLICITOR FOR THE 1^ST RESPONDENT:

Dillon-Smith Lawyers

SOLICITOR FOR THE 2^ND RESPONDENT:

Self-representing

SOLICITOR FOR THE 3^RD RESPONDENT:

Sam Mason Legal Pty Ltd

SOLICITOR FOR THE INTERVENOR:

Crown Solicitors Office

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mrs Evans

Orders

The provisions of s 102NA(2) apply to the hearing of this matter in respect of Mr Pemberton and Ms Keen.
The proceedings are adjourned for further directions on 16 October 2019 at 3pm and the parties are granted liberty to appear by telephone on that occasion, provided they make arrangements with the Canberra Registry of the Family Court of Australia seven days in advance of their intention to do so too.
It is anticipated that on that occasion the parties will advise the Court as to whether they have been successful in securing the funding for Dr G to prepare a further report.
It is requested that 14 days in advance of that date the Independent Children's Lawyer circulate to the other parties a proposed minute setting out the terms of reference for Dr G's report.
The Independent Children's Lawyer is at liberty to issue such subpoenas as are necessary for the preparation of the matter and following production is at liberty to exercise photocopy access provided there is no objection to access and to provide any photocopy material to Dr G.

IT IS NOTED THAT

The position of the Secretary is that an order for B to live with Ms J is inconsistent with an order for sole parental responsibility directed to the Secretary.

IT IS FURTHER ORDERED THAT

The parties are at liberty to seek an urgent relisting of this matter on short notice via the Registrar of the Family Court of Australia Canberra Registry.
Mr Pemberton is to file and serve within 14 days of today a response setting out the orders that he seeks at the final hearing.

IT IS NOTED THAT

There is shortly to take place a family conference in respect of the care arrangements for B.
The Secretary will notify the Independent Children's Lawyer and solicitors for the other parties of the proposed conference…

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: [2019] FamCA 673
Decision Date: 16 September 2019

CaseChat Overview and Summary

In the matter of *Thompsett and Keen and Ors*, heard before Gill J of the Family Court of Australia, the dispute concerned proceedings involving Mr Pemberton and Ms Keen. The specific nature of the dispute is not detailed in the provided text, but the orders indicate a focus on the preparation of expert evidence and the procedural conduct of the case.

The primary legal issue before the Court was the application of section 102NA(2) of the relevant legislation to Mr Pemberton and Ms Keen. This section likely pertains to procedural matters or evidentiary rules within family law proceedings. The Court was also required to determine the future conduct of the proceedings, including the need for further expert reports and the timeline for their preparation and dissemination.

Gill J ordered that section 102NA(2) was applicable to Mr Pemberton and Ms Keen. The proceedings were adjourned for further directions, with parties granted liberty to appear by telephone, subject to advance arrangement with the Court registry. The Court anticipated being advised on the securing of funding for a further report by Dr G. The Independent Children's Lawyer was directed to circulate a proposed minute of terms of reference for Dr G's report 14 days prior to the next directions hearing and was granted liberty to issue necessary subpoenas and provide photocopied material to Dr G, provided there was no objection to access.

Orders

Orders of the court

The provisions of s 102NA(2) apply to the hearing of this matter in respect of Mr Pemberton and Ms Keen.

The proceedings are adjourned for further directions on 16 October 2019 at 3pm and the parties are granted liberty to appear by telephone on that occasion, provided they make arrangements with the Canberra Registry of the Family Court of Australia seven days in advance of their intention to do so too.

It is anticipated that on that occasion the parties will advise the Court as to whether they have been successful in securing the funding for Dr G to prepare a further report.

It is requested that 14 days in advance of that date the Independent Children's Lawyer circulate to the other parties a proposed minute setting out the terms of reference for Dr G's report.

The Independent Children's Lawyer is at liberty to issue such subpoenas as are necessary for the preparation of the matter and following production is at liberty to exercise photocopy access provided there is no objection to access and to provide any photocopy material to Dr G.

Background

Background to the litigation

Full text does not contain this section.

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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