Tuesday, 16 March 2010

Family Court case: a hollow victory

The recent Family Court case of Allen and Green is an example of being careful what you wish for.  The matter originally came before Federal Magistrate Sexton who, in considering two reports, one being by Richard Chisholm and Jennifer McIntosh on the risks with shared care, decided to cut down the amount of time between the father and children by one night a fortnight.

Justice Boland, sitting as the Full Court, determined that Federal Magistrate Sexton's discretion had miscarried. This was because the Federal Magistrate had only briefly referred to one of the reports in cross-examination of the expert psychiatrist, and did not otherwise mention it to the parties or invite submissions on it, did not mention the other report at all, but it was clear that her Honour's decision was based at least in part on that research.

But the real interest is what the father achieved by succeeding on the appeal. The answer is: not very much. In many ways it was a hollow victory.

The matter originally came on for hearing before Federal Magistrate Sexton in April 2009. It was listed for 2 days. The court was told by the parties' lawyers on day one that it could not finish in that time and would take 4 days. Demonstrating the workload of her docket, her Honour allocated new dates - a year later, in April this year.

The father no doubt then thought that the best course to take was to appeal, given that one day a fortnight had been taken from him.

His appeal was filed in May 2009. The appeal was not heard until October 2009. Due to Justice Boland's workload, with a timeframe that was not particularly unusual, judgment was delivered in February this year, 10 months after the original orders and 2 months before the 4 day trial.

Justice Boland upheld the appeal and stayed the order reducing the time by one day a fortnight. The matter ultimately was sent back to the Federal Magistrates Court for further hearing- no doubt to be heard by Federal Magistrate Sexton!

The answer of the substantive outcome was obvious:

The reality is that it is now approximately ten months since the making of the orders the subject of appeal. I could not appropriately re-determine this matter without the parties having the opportunity to file updating material. In circumstances where final hearing dates have been allocated in April 2010 the practical solution must be that the parties should devote their resources to the final hearing when the Federal Magistrate will have the ability to hear all the evidence and see the parties in the witness box to arrive at a decision which is in the best interests of these children.

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