Janz and Janz - [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

The mother’s application filed 30 August 2007, for summary dismissal of the father’s application for parenting orders, be dismissed.
The threshold question of whether the court ought re-examine the parenting orders be determined as a preliminary issue
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

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.
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.
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 31^st 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 7^th April 2006 and each alternate Friday…

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 Janz and Janz

Details

AGLC: Janz and Janz [2007] FMCAfam 876
Case: [2007] FMCAfam 876
Decision Date: 26 October 2007

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

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

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

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

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.