WALKER & LEE - [2016] FCCA 230

FEDERAL CIRCUIT COURT OF AUSTRALIA

WALKER & LEE

[2016] FCCA 230

Catchwords:
FAMILY LAW – Children – parenting orders – interim orders – Application in a Case – best interests of the child – where children are not spending time with father – family violence order previously made – whether children should move into an equal shared care arrangement – appointment of Independent Children’s Lawyer.

PRACTICE AND PROCEDURE – Application in a Case – application must comply with Federal Circuit Court Rules 2001 Rule 4.02 by stating precisely and briefly the orders sought.

Legislation:

Family Law Act 1975(Cth), ss.60CA, 61DA, 65DAA, 68L

Federal Circuit Rules 2001, r.4.02

Cases cited:
Carriel & Lendrum [2013] FCCA 284
Carriel & Lendrum [2015] FamCAFC 43; (2015) 53 Fam LR 157; FLC 93-640
Re K (1994) 17 Fam LR 537; FLC 92-461
Rice v Asplund (1978) 6 Fam LR 570; (1979) FLC 90-725

Applicant:

MS WALKER

Respondent:

MR LEE

File Number:

SYC 4088 of 2015

Judgment of:

Judge Scarlett

Hearing date:

3 February 2016

Date of Last Submission:

3 February 2016

Delivered at:

Sydney

Delivered on:

3 February 2016

REPRESENTATION

Solicitor for the Applicant:

Ms Saab

Solicitors for the Applicant:

Saab Law Group

Solicitor for the Respondent:

Ms Dabliz

Solicitors for the Respondent:

Platinum Lawyers

ORDERS

UNTIL FURTHER ORDER

The interests of the children X born (omitted) 2013 and Y also born (omitted) 2013 are to be independently represented by a lawyer under the provisions of section 68L of the Family Law Act 1975 and for this purpose Legal Aid New South Wales is requested to arrange such representation.
Within fourteen (14) days from the date of this Order the parties are to forward to Legal Aid New South Wales for the use of the Independent Children’s Lawyer when appointed copies of all Applications, Responses, affidavits and other relevant documents.
The Independent Children’s Lawyer is granted leave to issue up to ten (10) subpoenas without charge.
The Respondent father is to file and serve a Response to an Application in a Case and an affidavit in support not exceeding ten (10) pages of text within fourteen (14) days.
The Application is adjourned to Tuesday 8 March 2016 for further mention at 10:00 am.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 4088 of 2015

MS WALKER

Applicant

And

MR LEE

Respondent

REASONS FOR JUDGMENT

Application in a Case

This case concerns an Application in a Case filed by the mother on 28 January 2016 but only served today. However, the mother’s solicitor emailed a copy to the father’s solicitor earlier.

Orders Sought

The Applicant seeks to vary the Interim Orders made by consent on 6 July 2015 and varied by consent on 4 November 2015.
The mother seeks to change the changeover from the current (omitted) Police Station to “(omitted) McDonalds or alternatively, a location which…

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 WALKER & LEE

Details

AGLC: WALKER & LEE [2016] FCCA 230
Case: [2016] FCCA 230
Decision Date: 3 February 2016

CaseChat Overview and Summary

In the matter of *Walker & Lee*, heard before Judge Scarlett of the Federal Circuit Court of Australia, the dispute concerned interim parenting orders for two children. The application was brought by one parent seeking an equal shared care arrangement, a proposal opposed by the other parent. A previously made family violence order was a relevant factor in the proceedings.

The court was required to determine whether to make interim orders for equal shared care of the children, considering the paramountcy of the children's best interests. A further issue was the appropriate procedural compliance for an Application in a Case, specifically regarding the requirement under Rule 4.02 of the Federal Circuit Court Rules 2001 for orders sought to be stated precisely and briefly. The court also considered the necessity and process for appointing an Independent Children’s Lawyer.

Judge Scarlett ordered that the interests of the children be independently represented by a lawyer appointed under section 68L of the *Family Law Act 1975*, with Legal Aid New South Wales requested to arrange this representation. The parties were directed to provide all relevant documents to the appointed Independent Children’s Lawyer within fourteen days. The Independent Children’s Lawyer was granted leave to issue up to ten subpoenas without charge. The respondent father was ordered to file and serve a response to the application and a supporting affidavit, not exceeding ten pages, within fourteen days. The matter was adjourned for further mention.

Orders

Orders of the court

UNTIL FURTHER ORDER

The interests of the children X born (omitted) 2013 and Y also born (omitted) 2013 are to be independently represented by a lawyer under the provisions of section 68L of the Family Law Act 1975 and for this purpose Legal Aid New South Wales is requested to arrange such representation.

Within fourteen (14) days from the date of this Order the parties are to forward to Legal Aid New South Wales for the use of the Independent Children’s Lawyer when appointed copies of all Applications, Responses, affidavits and other relevant documents.

The Independent Children’s Lawyer is granted leave to issue up to ten (10) subpoenas without charge.

The Respondent father is to file and serve a Response to an Application in a Case and an affidavit in support not exceeding ten (10) pages of text within fourteen (14) days.

The Application is adjourned to Tuesday 8 March 2016 for further mention at 10:00 am.

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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