Bartz and Manthey - [2018] FamCAFC 109

FAMILY COURT OF AUSTRALIA

BARTZ & MANTHEY

[2018] FamCAFC 109

FAMILY LAW – APPLICATION IN AN APPEAL – EXPEDITION – Where the mother seeks to expedite her appeal against interim parenting orders – Where the matter is not one which might ordinarily attract an order for expedition – Unusual circumstances – Where final hearing dates should not be jeopardised – Where there is no obvious nexus between the appeal and the matters to be determined on a final basis – Where it was in the interests of the child and justice that the appeal be determined expeditiously – Application granted.

Family Law Act 1975 (Cth) s 94(2D)(j)
Family Law Rules 2004 (Cth) r 12.10A

APPLICANT:

Ms Bartz

RESPONDENT:

Mr Manthey

FILE NUMBER:

CAC

609

2016

APPEAL NUMBER:

2018

DATE DELIVERED:

13 June 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ryan J

HEARING DATE:

13 June 2018

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

12 April 2018

LOWER COURT MNC:

[2018] FCCA 1305

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Barnett

SOLICITOR FOR THE APPLICANT:

Campbell Paton & Taylor

COUNSEL FOR THE RESPONDENT:

Mr Givney

SOLICITOR FOR THE RESPONDENT:

Walsh & Blair

Orders

The appeal be expedited.
That the documents to be relied on at the appeal shall comprise the following documents arranged in the following order:
1.Notice of Appeal filed 1 May 2018;
2.Orders of Judge Neville dated 12 April 2018;
3.Reasons for Judgment of Judge Neville released 12 June 2018;
4.Initiating Application filed by the respondent father on 18 April 2016;
5.Amended Response to Initiating Application filed by the appellant mother on 14 September 2016;
6.Application in a case filed by the respondent father on 7 September 2017;
7.Response to an Application in a Case filed by the appellant mother on 24 November 2017;
8.Affidavit of Ms Bartz filed 3 July 2017;
9.Affidavit of Mr Manthey filed 11 July 2017;
10.Affidavit of Mr Manthey filed 7 September 2017;
11.Affidavit of Ms Bartz filed 24 November 2017;
12.Affidavit of Ms Brown filed 24 November 2017;
13.Orders of Judge Neville dated 21 December 2016;
14.Orders of Judge Neville dated 14 July 2017;
15.Orders of Judge Neville dated 16 May 2018;
16.Written submissions filed by the respondent father on 22 December 2017;
17.Written submissions filed by the appellant mother on 12 January 2018; and
18.Family Report prepared by Ms Connor dated 5 December 2016.
That on or before 20 June 2018 the appellant obtain the transcript of evidence of the hearing before Judge Neville including the transcript of 12 April 2018 and email copies of such transcript to the respondent and to the Court using the email address ….
That the appellant file and serve a written summary of argument and list of authorities (if any) on or before 10:00am on 18 June 2018.
That the respondent file and serve a list of any further documents that were before Judge Neville, not included in the appellant's list, upon which he seeks to…

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 Bartz and Manthey

Details

AGLC: Bartz and Manthey [2018] FamCAFC 109
Case: [2018] FamCAFC 109
Decision Date: 13 June 2018

CaseChat Overview and Summary

Bartz and Manthey is a case involving a dispute between parents over the care and control of their child. The matter was heard in the Family Court of Australia. The appeal, brought by the mother, concerns the decision made by Judge Neville on 12 April 2018, which was subsequently detailed in his reasons for judgment released on 12 June 2018. The father, who had initially filed an initiating application on 18 April 2016, sought to change the existing parenting orders.

The primary legal issues that the court was required to decide related to the assessment of the evidence presented by both parties, the application of relevant statutory provisions, and the best interests of the child. The mother contested the father's application to amend the parenting orders, arguing that the proposed changes were not in the child's best interests. The court had to determine whether the father had demonstrated a sufficient change in circumstances to warrant a modification of the existing orders and whether the proposed changes would be beneficial to the child.

In delivering the orders, the court outlined a structured approach to the appeal process. The appeal was to be expedited, and the documents to be considered at the appeal were specified, ensuring that all relevant evidence and submissions would be before the court. The court mandated strict timelines for the exchange of documents, written submissions, and the filing of transcripts of evidence. The appeal was scheduled for hearing before Justice Ryan, with contingencies in place should Justice Ryan be unavailable. Additionally, the court set out the process for any applications to adduce further evidence and reserved the costs of the proceedings. The detailed orders reflect the court's intent to ensure a fair and efficient resolution of the appeal.

Orders

Orders of the court

The appeal be expedited.

That the documents to be relied on at the appeal shall comprise the following documents arranged in the following order:

1. Notice of Appeal filed 1 May 2018;

2. Orders of Judge Neville dated 12 April 2018;

3. Reasons for Judgment of Judge Neville released 12 June 2018;

4. Initiating Application filed by the respondent father on 18 April 2016;

5. Amended Response to Initiating Application filed by the appellant mother on 14 September 2016;

6. Application in a case filed by the respondent father on 7 September 2017;

7. Response to an Application in a Case filed by the appellant mother on 24 November 2017;

8. Affidavit of Ms Bartz filed 3 July 2017;

9. Affidavit of Mr Manthey filed 11 July 2017;

10. Affidavit of Mr Manthey filed 7 September 2017;

11. Affidavit of Ms Bartz filed 24 November 2017;

12. Affidavit of Ms Brown filed 24 November 2017;

13. Orders of Judge Neville dated 21 December 2016;

14. Orders of Judge Neville dated 14 July 2017;

15. Orders of Judge Neville dated 16 May 2018;

16. Written submissions filed by the respondent father on 22 December 2017;

17. Written submissions filed by the appellant mother on 12 January 2018; and

18. Family Report prepared by Ms Connor dated 5 December 2016.

That on or before 20 June 2018 the appellant obtain the transcript of evidence of the hearing before Judge Neville including the transcript of 12 April 2018 and email copies of such transcript to the respondent and to the Court using the email address ….

That the appellant file and serve a written summary of argument and list of authorities (if any) on or before 10:00am on 18 June 2018.

That the respondent file and serve a list of any further documents that were before Judge Neville, not included in the appellant's list, upon which he seeks to rely, together with a written summary of argument and a list of authorities (if any) on or before 4:00pm on 20 June 2018.

That each party be at liberty to apply for any further directions to the Honourable Justice Ryan (or if not reasonably available to another member of the Appeal Division) upon seven (7) days notice in writing to the other party and to the Appeals Registrar in the Sydney Registry.

Any application to adduce further evidence in the appeal is to be filed and served by 10:00am on 18 June 2018 and any affidavit in reply is to be filed and served by 4:00pm on 20 June 2018.

That the appeal be listed for hearing before the Honourable Justice Ryan (or if not reasonably available then such other judge as may be nominated by the Honourable Deputy Chief Justice Alstergren) at noon on 25 June 2018.

That the costs of today’s proceedings be reserved.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.