L and L - [2003] FMCAfam 549

FEDERAL MAGISTRATES COURT OF AUSTRALIA

L & L

[2003] FMCAfam 549

FAMILY LAW – Application for parenting orders.

PRACTICE & PROCEDURE – Sole use and occupation of former matrimonial home whereby both parties seek to exclude the other from the home – proceedings in the Magistrates Court – husband subject to the force of a state intervention order – whether the Federal Magistrates Court has jurisdiction to deal with the question of sole use and occupation of the former matrimonial home – whether the Family Law Act excludes the right to institute proceedings in respect of matters which could have been initiated by virtue of sections 68B or 114 of the Family Law Act whereby a party has proceedings pending pursuant to State or Territory legislation – whether there is complementary jurisdiction offered between State and Commonwealth legislation – Federal Magistrates Court has jurisdiction to accept the application for exclusive occupation.

Crimes (Family Violence) Act 1987 (Vic)
Family Law Act 1975 (Cth), ss.65DA(2), 68B, 68C, 68K, 68L(2), 68P, 68R, 68S, 68T, 114, 114AA, 114AB, 114AB(1), 114AB(2)
Family Law Reform Act 1995 (Cth)
Federal Magistrates Court Act 1999 (Cth)

Ebreo & Ebreo (unreported, delivered 1 July 1996)
Cauchi & Cauchi (1994) FLC 92-447
Nicolaou & Nicolaou (unreported, delivered 1 March 1988)

Applicant:

L L

Respondent:

K L

File No:

MLM 8416 of 2003

Delivered on:

9 December 2003

Delivered at:

Melbourne

Hearing Date:

8 December 2003

Judgment of:

Bryant CFM

REPRESENTATION

Counsel for the Applicant:

Ms Dillidis

Solicitors for the Applicant:

Hale & Wakeling

Counsel for the Respondent:

Mr Mort

Solicitors for the Respondent:

McCarthy & Associates

ORDERS

IT IS ORDERED THAT:

All Applications be adjourned to 19 December 2003 at 10.00am before Chief Federal Magistrate Bryant.

IT IS ORDERED BY CONSENT THAT:

Until further Order each of the Husband and Wife retain joint responsibility for decisions regarding the long term care, welfare and development of the children.
Until further Order each of the Husband and Wife have sole responsibility for decisions regarding the day to day care, welfare and development of the said children when they are in their respective care.
Each of the Husband and Wife attend upon a psychologist to be agreed for the purposes of a Family Report, the cost of which is to be borne equally between the parties.
Pursuant to s.68L(2) of the Family Law Act1975 the said children be separately represented AND IT IS REQUESTED that Victoria Legal Aid arrange such separate representation.
Forthwith upon appointment by the said Victoria Legal Aid or otherwise the Child Representative do file a Notice of Address for Service.
Within 48 hours of notification of such appointment the solicitors for the respective parties do provide to the Child Representative copies of all relevant documents relied upon.
THAT pursuant to s.65DA(2) of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these…

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.

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Details

AGLC: L and L [2003] FMCAfam 549
Case: [2003] FMCAfam 549
Decision Date: 9 December 2003

CaseChat Overview and Summary

L and L was a case involving a dispute between the husband and wife over the care and welfare of their children. The matter was heard in the Federal Magistrates Court of Australia. The dispute centered on the division of responsibilities for the long-term and day-to-day care of the children, as well as the need for representation for the children in the proceedings. The court was required to determine the appropriate allocation of decision-making responsibilities and to ensure the children's interests were adequately represented.

The legal issues the court had to decide included the allocation of decision-making authority for the long-term and day-to-day care of the children between the parents, the necessity for each parent to attend a psychologist for a family report, and the requirement for the children to be separately represented in the proceedings. Additionally, the court needed to consider how to effectively communicate with the children's representative and ensure the timely exchange of relevant documents.

The court's reasoning was based on the need to protect the best interests of the children, which included maintaining a stable and supportive environment for their care and development. The court determined that joint responsibility for long-term decisions and sole responsibility for day-to-day care when the children were with each parent would best serve the children's interests. The court also ordered that each parent attend a psychologist to facilitate a family report and that the children be separately represented to ensure their voices were heard in the proceedings. Furthermore, the court mandated that the Child Representative file a Notice of Address for Service and that the parties' solicitors provide relevant documents to the representative promptly.

Orders

Orders of the court

IT IS ORDERED THAT:

All Applications be adjourned to 19 December 2003 at 10.00am before Chief Federal Magistrate Bryant.

IT IS ORDERED BY CONSENT THAT:

Until further Order each of the Husband and Wife retain joint responsibility for decisions regarding the long term care, welfare and development of the children.

Until further Order each of the Husband and Wife have sole responsibility for decisions regarding the day to day care, welfare and development of the said children when they are in their respective care.

Each of the Husband and Wife attend upon a psychologist to be agreed for the purposes of a Family Report, the cost of which is to be borne equally between the parties.

Pursuant to s.68L(2) of the Family Law Act 1975 the said children be separately represented AND IT IS REQUESTED that Victoria Legal Aid arrange such separate representation.

Forthwith upon appointment by the said Victoria Legal Aid or otherwise the Child Representative do file a Notice of Address for Service.

Within 48 hours of notification of such appointment the solicitors for the respective parties do provide to the Child Representative copies of all relevant documents relied upon.

THAT pursuant to s.65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

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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