Janz and Janz

Case [2007] FMCAfam 876


FEDERAL MAGISTRATES COURT OF AUSTRALIA

JANZ & JANZ [2007] FMCAfam 876
FAMILY LAW – Parenting orders – application to vary earlier final parenting orders – application for summary dismissal of that application – test to be applied.
Rice & Asplund (1979) FLC 90-725
Cortes & Cabrera [2007] FMCAfam 293
Bennett & Bennett (1991) FLC 92-191
King & Finneran (2001) FLC 93-079
F & C [2004] FamCA 568
R & BH [2006] FamCA 919
Saad & Saad (1993) FLC 92-332
Applicant: MS JANZ
Respondent: MR JANZ
File number: BRC2587 of 2007
Judgment of: Wilson FM
Hearing date: 18 September 2007
Date of last submission: 23 October 2007
Delivered at: Brisbane
Delivered on: 26 October 2007

REPRESENTATION

Counsel for the Applicant: N/A
Solicitors for the Applicant: Clive Speakman Solicitors
Counsel for the Respondent: Ms Scott-MacKenzie
Solicitors for the Respondent: Mylne Lawyers

ORDERS

  1. The mother’s application filed 30 August 2007, for summary dismissal of the father’s application for parenting orders, be dismissed.

  2. The threshold question of whether the court ought re-examine the parenting orders be determined as a preliminary issue

  3. The matter be listed for hearing of the preliminary issue on a date to be advised.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BRC 2587 of 2007

MS JANZ

Applicant

And

MR JANZ

Respondent

REASONS FOR JUDGMENT

  1. On 17 July, 2007 the respondent husband/father filed an amended response, by which he sought parenting orders in respect of two children of the marriage: [X], born [in] 1998, and [Y], born [in] 2000. By her application filed 30 August 2007, the wife/mother sought summary dismissal of the father’s application for further parenting orders. I made directions on 18 September 2007 to facilitate the early determination of the application for summary dismissal. In compliance with those directions, the applicant mother filed submissions (albeit 10 days late). The father’s submissions were not received by me until


    23 October 2007, despite him being ordered to file them by


    28 September 2007.

  2. The basis of the mother’s application is that consent parenting orders were made in the Family Court of Australia on 30 March 2006, and the father has not established any basis for varying or discharging those orders.

  3. On 30 March 2006 consent orders were made by a Registrar of the Family Court of Australia. Relevantly, those orders provided:

    (1)That the children of the marriage, [X] born [in] 1998 and [Y] born [in] 2000 reside with the mother.

    (2)That the father have contact with the children at such time as may be agreed to between the parties including but not limited to the following:

    (a)Commencing Friday the 31st March 2006 and each alternate Friday thereafter during school term time from after school on Friday, with the father to collect the children from school, until 3:00 pm on the following Saturday;

    (b)From Friday the 7th April 2006 and each alternate Friday…

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Details
AGLC
Janz and Janz [2007] FMCAfam 876
Case
[2007] FMCAfam 876
Decision Date

CaseChat Overview and Summary

The case involved Janz (the father) and Janz (the mother), who were in dispute over parenting orders. The father filed an application for parenting orders on 30 August 2007, which the mother sought to have summarily dismissed. The mother's application for dismissal was heard in the Family Court of Australia. The court had to determine whether to dismiss the mother's application for summary dismissal of the father's application for parenting orders and whether the threshold question of whether the court should re-examine the parenting orders should be determined as a preliminary issue. The court concluded that the mother's application for summary dismissal should be dismissed. The court found that the threshold question of whether the court should re-examine the parenting orders should be determined as a preliminary issue. The matter was listed for hearing of the preliminary issue on a date to be advised.

Orders

Orders of the court

1.

The mother’s application filed 30 August 2007, for summary dismissal of the father’s application for parenting orders, be dismissed.

2.

The threshold question of whether the court ought re-examine the parenting orders be determined as a preliminary issue

3.

The matter be listed for hearing of the preliminary issue on a date to be advised.

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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