FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Whitehill & Talaska (No 2) [2024] FedCFamC2F 1756
File number(s): MLC 3002 of 2024 Judgment of: JUDGE O'SHANNESSY Date of judgment: 22 November 2024 Catchwords: FAMILY LAW- Parenting – where this hearing was listed originally as a 65DAAA hearing – where the applicant seeking “minor” variation to order – where the initial application regarding 65DAAA alleged a deterioration of the respondents mental health – where the respondent undertook a psychological assessment – where there was found to be no deterioration in the fathers mental health – where the applicant still seeks a “minor” variation in the orders following the psychological assessment – where the applicant wishes to relocate to another city for a job opportunity – where the applicant is seeking leave to amend her initiating application – where leave was granted – where the 65DAAA hearing is adjourned and consolidated with variation of orders hearing. Legislation: Family Law Act 1975 (Cth) ss 65DAAA
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 2.50
Cases cited: Rice & Asplund (1979) FLC 90-725, [1978] FamCA 84
Whitehill & Talaska [2024] FedCFamC2F 768
Division: Division 2 Family Law Number of paragraphs: 38 Date of hearing: 22 November 2024 Place: Melbourne Counsel for the Applicant: Ms Swann Solicitor for the Applicant: Saunders Family & Estate Lawyers Counsel for the Respondent: Mr Willee Solicitor for the Respondent: MC Lawyers 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:
22 NOVEMBER 2024
THE COURT ORDERS THAT:
1.Leave be and is granted for the applicant mother, MS WHITEHILL (‘the Mother’), to file and rely upon her amended application dated 31 October 2024.
2.All extant applications, including the competing applications as to section 65DAAA of the Family Law Act 1975 (Cth), the Mother’s application to vary the extant final orders, and the response (if any) of the respondent father, MR TALASKA (‘the Father’), be and are adjourned to Friday 20 December 2024 at 10.00am before Judge O’Shannessy for Final Hearing, subject to other applications.
3.By no later than 4.00pm on Friday 29 November 2024, the Mother file and serve any necessary affidavit updating her affidavit filed on 31 October 2024. By no later than 4.00pm on Friday 13 December 2024, the Father, file such affidavit and response he sees fit in regard to:
(a)the section 65DAAA of the Family Law Act 1975 (Cth) application made by the Mother, including whether the extant final orders can be reconsidered; and
(b)his response to the application to vary the extant orders as he sees fit; and
(c)the merits of Mother’s application to vary the extant orders and the matters relevant to his response.
4.On or before 4.00pm on Wednesday 18 December 2024, the Mother and the Father each file skeletal Outlines of Case of no longer than 5 pages in length.
5.The Father’s application for costs…
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- [2024] FedCFamC2F 1756
- Decision Date
CaseChat Overview and Summary
The court was tasked with deciding whether Ms Whitehill should be granted leave to amend her initiating application and, if so, how this amendment should be treated in the context of the ongoing proceedings. The court also needed to determine whether the existing parenting orders should be varied based on Ms Whitehill's relocation and whether the initial 65DAAA application, which was now moot, should still be considered in the context of the variation hearing. The court considered the implications of the psychological assessment, Ms Whitehill's employment opportunity, and the best interests of the child in its deliberations.
Judge O'Shannessy granted leave for Ms Whitehill to file and rely upon her amended application. The court adjourned all extant applications, including the 65DAAA hearing, and consolidated them with the variation of orders hearing, setting a final hearing date for 20 December 2024. The court imposed specific filing deadlines for affidavits and skeletal outlines of the case, and consolidated the respondent's application for costs with the other issues for hearing on the same date. The court also noted the application of section 102NA of the Family Law Act 1975 and provided guidance on the Commonwealth Family Violence and Cross-Examination of Parties Scheme.
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:
22 NOVEMBER 2024
THE COURT ORDERS THAT:
1. Leave be and is granted for the applicant mother, MS WHITEHILL (‘the Mother’), to file and rely upon her amended application dated 31 October 2024.
2. All extant applications, including the competing applications as to section 65DAAA of the Family Law Act 1975 (Cth), the Mother’s application to vary the extant final orders, and the response (if any) of the respondent father, MR TALASKA (‘the Father’), be and are adjourned to Friday 20 December 2024 at 10.00am before Judge O’Shannessy for Final Hearing, subject to other applications.
3. By no later than 4.00pm on Friday 29 November 2024, the Mother file and serve any necessary affidavit updating her affidavit filed on 31 October 2024. By no later than 4.00pm on Friday 13 December 2024, the Father, file such affidavit and response he sees fit in regard to:
(a) the section 65DAAA of the Family Law Act 1975 (Cth) application made by the Mother, including whether the extant final orders can be reconsidered; and
(b) his response to the application to vary the extant orders as he sees fit; and
(c) the merits of Mother’s application to vary the extant orders and the matters relevant to his response.
4. On or before 4.00pm on Wednesday 18 December 2024, the Mother and the Father each file skeletal Outlines of Case of no longer than 5 pages in length.
5. The Father’s application for costs of these proceedings (that commenced on 15 March 2024) be and is consolidated with all other extant issues for hearing on 20 December 2024.
AND THE COURT NOTES:
A. 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.
B. 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.
C. Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
D. 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
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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