Hefferon and Maltby - [2010] FamCA 555

FAMILY COURT OF AUSTRALIA

HEFFERON & MALTBY

[2010] FamCA 555

FAMILY LAW – PROCEDURE – Application for permission to commence new proceedings concerning child – Application dismissed

Family Law Act 1975 (Cth) s 118(2)
Family Law Rules 2004 (Cth) Rule 11.05

Attorney- General (Cth); Ex parte Skyring (1996) 135 ALR 29
McNamara & Rose (2007) FamCA 529
Zabaneh & Zabaneh (1986) FLC 91-766

APPLICANT:

Ms Hefferon

RESPONDENT:

Mr Maltby

FILE NUMBER:

ROC

625

2009

DATE DELIVERED:

21 June 2010

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

O’Reilly J

HEARING DATE:

18 June 2010

REPRESENTATION

THE APPLICANT:

In person

COUNSEL FOR THE RESPONDENT:

Ms Nikou SC

SOLICITOR FOR THE RESPONDENT:

Ms Rogerson

Orders

IT IS ORDERED

The mother’s application filed 26 May 2009 seeking that order 9 made by Mushin J on 4 May 2005 be discharged that the mother be granted permission to bring new proceedings concerning the child A born … March 1995 and other orders is dismissed.
If the father should seek to maintain his claim for costs contained in paragraph 2 of his response filed 11 February 2010:
a.the father file written submissions in relation to costs by email to the Associate and serve them on the mother by posting to PO Box … by 4 pm on Monday 5 July 2010;
b.the mother file written submissions in response by email to the Associate and serve them on the father by posting to his solicitors by 4 pm on Monday 19 July 2010;
c.the parties each state in the written submissions whether listing is required or whether they agree to the father’s application being dealt with on the basis of the written submissions.

IT IS NOTED that publication of this judgment under the pseudonym Hefferon & Maltby is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: ROC 625/ 2009

MS HEFFERON

Applicant

And

MR MALTBY

Respondent

REASONS FOR JUDGMENT

The mother Ms Hefferon applies under s 118(2) of the Family Law Act1975 (Cth) that an order made under section 118(1) by Mushin J on 4 May 2005 be discharged and that she have permission to start a new case concerning A born in March 1995 now 15 years.
Usually such applications, in the first instance, are made and heard ex parte. The mother’s application was expressed to be so made, however, the child’s father Mr Maltby either was served with the mother’s application or otherwise became aware of it and appeared.
The mother’s application was filed on 27 October 2009 in the Federal Magistrates Court. It was transferred to this Court only on 23 March 2010.
If granted permission, the final orders the mother seeks are that certain orders, 4, 5 and 9, of the orders made on 4 May 2005 be discharged and the child spend time with and communicate with the mother as is ordered by the Court. The interim orders the mother seeks are that the child…

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 Hefferon and Maltby

Details

AGLC: Hefferon and Maltby [2010] FamCA 555
Case: [2010] FamCA 555
Decision Date: 21 June 2010

CaseChat Overview and Summary

The mother applied to discharge an order made by Mushin J on 4 May 2005, which concerned the child A, and sought permission to bring new proceedings relating to A. The father opposed this application. The matter came before O’Reilly J.

The primary legal issue before the court was whether the mother should be granted permission to bring new proceedings concerning the child A, and consequently, whether the existing order of 4 May 2005 should be discharged.

O’Reilly J dismissed the mother's application. The judgment indicates that the court considered the existing orders and the mother's request for new proceedings, ultimately finding against the mother's application. The court also made provision for the father to pursue his claim for costs, outlining a process for written submissions from both parties regarding this aspect of the case.

Orders

Orders of the court

IT IS ORDERED

The mother’s application filed 26 May 2009 seeking that order 9 made by Mushin J on 4 May 2005 be discharged that the mother be granted permission to bring new proceedings concerning the child A born … March 1995 and other orders is dismissed.

If the father should seek to maintain his claim for costs contained in paragraph 2 of his response filed 11 February 2010:

a. the father file written submissions in relation to costs by email to the Associate and serve them on the mother by posting to PO Box … by 4 pm on Monday 5 July 2010;

b. the mother file written submissions in response by email to the Associate and serve them on the father by posting to his solicitors by 4 pm on Monday 19 July 2010;

c. the parties each state in the written submissions whether listing is required or whether they agree to the father’s application being dealt with on the basis of the written submissions.

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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