FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Whitehill & Talaska [2024] FedCFamC2F 768
File number(s): MLC 3002 of 2024 Judgment of: JUDGE O'SHANNESSY Date of judgment: 5 July 2024 Catchwords: FAMILY LAW – interim hearing – whether rules or practice attached or consequent to rule in Rice & Asplund apply to section 65DAAA – whether Goode and Goode applies to amended section 60CC – whether final orders can be suspended on interim basis without section 65DAAA being satisfied – change of circumstances not required but whether there is must be considered- section 65DAAA “governing” provision of section 65DAAA- attached rules of body of law of Rice & Asplund applied – principles of Goode and Goode with necessary changes applied-Not satisfied section 65DAAA(1)(b) satisfied – one parent’s opinion of mental health of other parent not accepted – parent’s concern not dismissed – final orders not discharged or suspended – single expert psychiatric examination ordered Legislation: Family Law Act 1975 (Cth) ss 60CC and 65DAAA
The Acts Interpretation Act (1901) (Cth)
Cases cited: Eaby & Speelman (2015) FLC 93-654
Goode & Goode (2006) FLC 93-286
Rice & Asplund (1978) 6 FamLR 570, (1979) FLC 90-725
SS & AH [2010] FamCAFC 13
Division: Division 2 Family Law Number of paragraphs: 105 Date of last submission/s: 27 May 2024 Date of hearing: 22 May 2024 Place: Melbourne Counsel for the Applicant: Mr Kelly Solicitor for the Applicant: Schembri & Co Lawyers Counsel for the Respondent: Mr Willee Solicitor for the Respondent: M C Lawyers & Associates
Table of Corrections 19 July 2024 In paragraph 105, the word “not” has been inserted between the words “do” and “regard”. ORDERS
MLC 3002 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS WHITEHILL
Applicant
AND: MR TALASKA
Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
27 MAY 2024
THE COURT ORDERS THAT:
1.The parties do all acts and things to cause and ensure that the orders of 11 April 2023 be and are complied with, and for the purpose of:
(a)Order 6(a) such time commence as and from Wednesday, 29 May 2024; and
(b)Order 6(b) such time commence as and from Saturday, 1 June 2024; and
(c)Order 6(c) such time commence as and from Friday, 7 June 2024.
2.The parties do all acts and things to appoint a single expert witness in accordance with the rules of the Court, for the purpose of undertaking a psychiatric assessment of the Father as soon as practical (‘the single expert’), and the parties are to each pay one half of the cost of that assessment at the time and in the manner as requested by the single expert witness.
3.There be liberty to apply as to any difficulty with the appointment of the single expert witness.
4.The reasons for these orders are otherwise reserved.
AND THE COURT NOTES THAT:
A.The matter is listed on 21 August 2023 in regard to the Father’s application that the Mother’s application be dismissed because of the provisions…
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CaseChat Overview and Summary
The court examined whether the rules and practices outlined in Rice & Asplund applied to section 65DAAA and if the principles in Goode and Goode should be applied to section 60CC with necessary modifications. The court determined that while section 65DAAA could be considered a "governing" provision, the attached rules of Rice & Asplund should be applied with necessary changes, particularly in relation to the principles of Goode and Goode. The court concluded that section 65DAAA(1)(b) was satisfied, as the applicant's opinion regarding the respondent's mental health was not accepted without proper evidence. However, the respondent's concerns were acknowledged and considered. The court decided that the final orders would not be discharged or suspended on an interim basis, but instead ordered a single expert psychiatric examination of the respondent.
In light of the above, the court ordered that the parties comply with the existing orders, with specific start dates for each order. The court also mandated that a single expert witness be appointed to conduct a psychiatric assessment of the respondent. Each party was to bear half the cost of this assessment. The court granted liberty to apply if there were any difficulties in appointing the expert witness. The reasons for these orders were reserved, and the matter was listed for further hearing on 21 August 2023.
Orders
Orders of the court
MLC 3002 of 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS WHITEHILL
Applicant
AND:
MR TALASKA
Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
27 MAY 2024
THE COURT ORDERS THAT:
1. The parties do all acts and things to cause and ensure that the orders of 11 April 2023 be and are complied with, and for the purpose of:
(a) Order 6(a) such time commence as and from Wednesday, 29 May 2024; and
(b) Order 6(b) such time commence as and from Saturday, 1 June 2024; and
(c) Order 6(c) such time commence as and from Friday, 7 June 2024.
2. The parties do all acts and things to appoint a single expert witness in accordance with the rules of the Court, for the purpose of undertaking a psychiatric assessment of the Father as soon as practical (‘the single expert’), and the parties are to each pay one half of the cost of that assessment at the time and in the manner as requested by the single expert witness.
3. There be liberty to apply as to any difficulty with the appointment of the single expert witness.
4. The reasons for these orders are otherwise reserved.
AND THE COURT NOTES THAT:
A. The matter is listed on 21 August 2023 in regard to the Father’s application that the Mother’s application be dismissed because of the provisions of section 65DAAA of the Family Law Act 1975 (Cth).
B. If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
C. Affected unrepresented parties may apply to the court and then to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.
D. Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
E. If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Background
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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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