AMT and ALK - [2003] FMCAfam 420

FEDERAL MAGISTRATES COURT OF AUSTRALIA

AMT & ALK

[2003] FMCAfam 420

FAMILY LAW – CHILDREN – Varying existing orders – contact – allegations of sexual abuse – whether the Court should accept an affidavit sworn by a child under 18 – leave of the Court not sought in relation to the affidavit as is required by section 100B – separate representation of children – obligations placed on party by section 67Z.

Family Law Act 1975, ss.67Z; 67ZA(2); 100B(1)

Re: K (1994) FLC 92-461

Applicant:

MTA

Respondent:

LKA

File No:

PAM 3754 of 2001

Delivered on:

5 September 2003

Delivered at:

Parramatta

Hearing date:

5 September 2003

Judgment of:

Scarlett FM

REPRESENTATION

Solicitor for the Applicant:

Ms Lansley

Solicitors for the Applicant:

Lansley Lawyers

Counsel for the Respondent:

Ms Snelling

Solicitors for the Respondent:

RJ Russell Solicitors

ORDERS

The Terms of Settlement are marked Exhibit 2, and by consent and until further order, I make orders in accordance with paragraphs 1, 2, 3, 4 and 5 inclusive.
That pursuant to section 68L of the Family Law Act 1975 the children OSA born 24 July 1993, BAA bon 22 April 1996 and EJA born 17 July 1998 be separately represented AND I REQUEST that the Legal Aid Commission of New South Wales provide such representation.
That each party make available to the Legal Aid Commission of New South Wales within 48 hours copies of all Applications and Affidavits filed in these proceedings by the party together with all existing Orders and copies of any relevant reports.
The Respondent Mother is to file a Form 66 Notice of Risk of Child Abuse pursuant to section 67Z(2) of the Family Law Act 1975, within fourteen (14) days.
The Application is adjourned Monday 20 October 2003 at 10.00am for further mention.
I require a typescript of the hand written Consent Orders to be filed with the Court within fourteen (14) days.
I require a transcript of the reasons for my decision.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

PAM 3754 of 2001

MTA

Applicant

And

LKA

Respondent

REASONS FOR JUDGMENT

Application

The application before the Court is an application by the father of three children, a boy and two girls, to vary the existing residence orders to provide for the fact that the children should reside with him rather than residing with their mother. For a period of time the eldest child, OSA, has been residing with the father in what was said to be a temporary arrangement. The mother does not wish for that arrangement to continue.
The father has formed a new relationship and the lady with whom he resides has children of her own. One of these children is a teenage boy who was living with his father and stepmother, but since the end of May has taken up residence in the household with his mother and with the father of the children who are the subject of these proceedings.
The current arrangements are that contact takes place in such…

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 AMT and ALK

Details

AGLC: AMT and ALK [2003] FMCAfam 420
Case: [2003] FMCAfam 420
Decision Date: 5 September 2003

CaseChat Overview and Summary

AMT and ALK were involved in a family law matter that came before a judge, who considered the terms of settlement reached by the parties. The dispute centered around the arrangements for the welfare and representation of their three children, OSA, BAA, and EJA. The legal issues the court had to address included the need for separate legal representation for the children, the exchange of documentation between the parties, the filing of a Notice of Risk of Child Abuse by the Respondent Mother, and the scheduling of further court proceedings. The court ordered separate legal representation for the children and requested the Legal Aid Commission of New South Wales to provide such representation. Both parties were required to provide copies of their filed applications, affidavits, orders, and relevant reports to the Legal Aid Commission within 48 hours. The Respondent Mother was also directed to file a Form 66 Notice of Risk of Child Abuse within fourteen days. The court further adjourned the application for further mention and required a typescript of the handwritten consent orders and a transcript of the reasons for the decision to be filed within specified timeframes.

Orders

Orders of the court

The Terms of Settlement are marked Exhibit 2, and by consent and until further order, I make orders in accordance with paragraphs 1, 2, 3, 4 and 5 inclusive.

That pursuant to section 68L of the Family Law Act 1975 the children OSA born 24 July 1993, BAA bon 22 April 1996 and EJA born 17 July 1998 be separately represented AND I REQUEST that the Legal Aid Commission of New South Wales provide such representation.

That each party make available to the Legal Aid Commission of New South Wales within 48 hours copies of all Applications and Affidavits filed in these proceedings by the party together with all existing Orders and copies of any relevant reports.

The Respondent Mother is to file a Form 66 Notice of Risk of Child Abuse pursuant to section 67Z(2) of the Family Law Act 1975, within fourteen (14) days.

The Application is adjourned Monday 20 October 2003 at 10.00am for further mention.

I require a typescript of the hand written Consent Orders to be filed with the Court within fourteen (14) days.

I require a transcript of the reasons for my decision.

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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