HENRICKSEN & JANZ - [2008] FMCAfam 866

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HENRICKSEN & JANZ

[2008] FMCAfam 866

FAMILY LAW – Parenting orders – application to vary consent final parenting orders – determination of matter as a preliminary issue – application dismissed.

FAMILY LAW – Property settlement orders – application under s.79A Family Law Act.

Family Law Act 1975, s.79A
Evidence Act 1995 (Cth) s.128

Janz & Janz (2007) FMCAfam 876
In the Marriage of Sulker (1993) FLC 92-436
In the Marriage of Pelerman (2000) FLC 93-037
In the Marriage of Gebert (1990) FLC 92-137

Applicant:

MS HENRICKSEN

Respondent:

MR JANZ

File Number:

BRC 2587 of 2007

Judgment of:

Wilson FM

Hearing dates:

27, 29 November 2007 & 6 August 2008

Date of Last Submission:

6 August 2008

Delivered at:

Brisbane

Delivered on:

15 August 2008

REPRESENTATION

Counsel for the Applicant:

N/A

Solicitors for the Applicant:

Hirst & Co

Counsel for the Respondent:

Mr Curran

Solicitors for the Respondent:

Mylne Lawyers

ORDERS

On the determination of the preliminary issue, paragraphs 5 and 6 of the father’s amended Response filed 17 July 2006 are dismissed;
That the balance of the funds held in the trust account of Clive Speakman Solicitors, Suite 2 188 Stratton Terrace, Manly in the State of Queensland, be forthwith released to the mother provided that she deal with the said amount only in accordance with these orders;
That the mother utilise the amount only as follows:
(a)To be held in an interest-bearing account in her name with the best possible interest rate as determined by the mother; or
(b)To be contributed to the acquisition of a house property to be registered in the sole name of the mother.
That should the mother purchase a property in her sole name and contribute part or all of the amount to the acquisition of that property, then the mother be restrained and an injunction be granted restraining her from selling, further mortgaging or otherwise encumbering or dealing with the property, provided that the mother shall be permitted to borrow a sum of not more than $500,000 for the sole purpose of acquiring such property.
That the following applications be listed for hearing on 11 September 2008 at 10 am:
(a)The mother’s application filed 8 March 2007;
(b)The mother’s amended application filed 23 April 2007;
(c)The father’s Response filed 11 May 2007 seeking a variation of Order 21 made in the Family Court of Australia on 30 March 2006;
(d)The mother’s application to summarily dismiss the father’s application pursuant to s. 79A Family Law Act 1975.
Any further affidavit evidence to be relied upon by either party on the hearing of such applications be filed and served by not later than

29 August 2008;
Any affidavit evidence in reply be filed and served by not later than

4 September 2008;
Each party file and serve written submissions addressing the four applications by not later than 9 September 2008.

IT IS NOTED that publication of this judgment under the pseudonym Henricksen & Janz is approved pursuant…

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 HENRICKSEN & JANZ

Details

AGLC: HENRICKSEN & JANZ [2008] FMCAfam 866
Case: [2008] FMCAfam 866
Decision Date: 15 August 2008

CaseChat Overview and Summary

In the matter of Henriksen and Janz, the Family Court was tasked with resolving issues relating to parenting and property settlement orders. The mother sought to vary existing consent orders concerning parenting arrangements, while also applying for a variation of property settlement orders. The father, on the other hand, filed a response seeking to alter the existing parenting orders. As a preliminary matter, the court was required to determine whether the mother's application to vary the parenting orders should proceed or be dismissed.

The court examined the legal issues regarding the mother's request to alter the consent orders and the father's application for a variation of the parenting arrangements. The court had to decide whether the mother's application to change the parenting orders should be allowed to proceed or if it should be dismissed. Additionally, the court was required to consider the mother's application for a variation of property settlement orders and the father's response seeking to alter the existing parenting orders.

The court found that the mother's application to vary the consent orders should be dismissed. It concluded that the existing parenting arrangements were in the best interests of the child and did not warrant a change. Furthermore, the court ordered the release of funds from a trust account to the mother, to be used solely for the purposes of acquiring a house property in her sole name or for deposit in an interest-bearing account. The court also restrained the mother from selling, mortgaging, or encumbering the property, allowing only a limited borrowing capacity for the acquisition of the property. The court set a date for the hearing of the remaining applications and specified deadlines for the filing of affidavits and written submissions.

In conclusion, the court dismissed the mother's application to vary the consent orders, released funds to the mother for specified purposes, restrained the mother from encumbering the property, and scheduled a hearing date for the remaining applications.

Orders

Orders of the court

On the determination of the preliminary issue, paragraphs 5 and 6 of the father’s amended Response filed 17 July 2006 are dismissed;

That the balance of the funds held in the trust account of Clive Speakman Solicitors, Suite 2 188 Stratton Terrace, Manly in the State of Queensland, be forthwith released to the mother provided that she deal with the said amount only in accordance with these orders;

That the mother utilise the amount only as follows:

(a) To be held in an interest-bearing account in her name with the best possible interest rate as determined by the mother; or

(b) To be contributed to the acquisition of a house property to be registered in the sole name of the mother.

That should the mother purchase a property in her sole name and contribute part or all of the amount to the acquisition of that property, then the mother be restrained and an injunction be granted restraining her from selling, further mortgaging or otherwise encumbering or dealing with the property, provided that the mother shall be permitted to borrow a sum of not more than $500,000 for the sole purpose of acquiring such property.

That the following applications be listed for hearing on 11 September 2008 at 10 am:

(a) The mother’s application filed 8 March 2007;

(b) The mother’s amended application filed 23 April 2007;

(c) The father’s Response filed 11 May 2007 seeking a variation of Order 21 made in the Family Court of Australia on 30 March 2006;

(d) The mother’s application to summarily dismiss the father’s application pursuant to s. 79A Family Law Act 1975.

Any further affidavit evidence to be relied upon by either party on the hearing of such applications be filed and served by not later than

29 August 2008;

Any affidavit evidence in reply be filed and served by not later than

4 September 2008;

Each party file and serve written submissions addressing the four applications by not later than 9 September 2008.

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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