Landis and Landis - [2012] FMCAfam 1452

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LANDIS & LANDIS

[2012] FMCAfam 1452

FAMILY LAW – Children – parenting orders – interim orders – cross applications to vary interim orders made on 23 November 2010 – where final hearing to take place on 6 March 2013 – whether changes to parenting arrangements in child’s best interests – need for stability in child’s life – where parental responsibility previously considered.

Family Law Act 1975, ss.60CA, 60CC, 61DA, 61DB, 65DAA

Landis & Landis [2010] FMCAfam 1283

Applicant:

MS LANDIS

Respondent:

MR LANDIS

File Number:

SYC 4810 of 2010

Judgment of:

Scarlett FM

Hearing date:

20 December 2012

Date of Last Submission:

20 December 2012

Delivered at:

Sydney

Delivered on:

20 December 2012

REPRESENTATION

Counsel for the Applicant:

Mr Breeze

Solicitors for the Applicant:

David H. Cohen & Co

Counsel for the Respondent:

The Respondent appeared in person

Solicitors for the Respondent:

No solicitor

Counsel for the Independent Children’s Lawyer:

Mr Sperling

Solicitors for the Independent Children’s Lawyer:

Brian Samuel & Associates

ORDERS

BY CONSENT

Order (10) made on 23 November 2010 restraining the parties from removing the child [X] from the Sydney Metropolitan area except between 1:00 pm on Friday 24 December and 10:00pm on Monday 27 December 2010 is discharged.

AND IT IS FURTHER ORDERED THAT

The Application by the Applicant Mother and the Application by the Respondent Father to vary the Orders made on 23 November 2010 are otherwise dismissed.
The Application for final parenting orders is adjourned to 6 March 2013 for Final Hearing at 10:00am and allocated three (3) days.
The Independent Children’s Lawyer is granted leave to issue ten (10) further subpoenas.
An interpreter in the Thai language is required for the assistance of the Applicant on 6, 7 and 8 March 2013 AND THE COURT NOTES that the Applicant requests that Ms T should be allocated as interpreter if possible.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYC 4810 of 2010

MS LANDIS

Applicant

And

MR LANDIS

Respondent

REASONS FOR JUDGMENT

Application

There are cross applications to vary the current interim Parenting Orders made by the Applicant and the Respondent. The applications in circumstances where the final hearing scheduled for three days this week could not proceed due to the unavailability of a Thai interpreter, needed for the Applicant Mother.
Accordingly, the hearing has had to be adjourned to a three day block of time commencing on Wednesday 6^th March 2013. In the meantime, each of the Applicant and the Respondent seek to vary the Orders made on 23^rd November 2010.

Orders Sought

The Applicant Mother’s counsel, Mr Breeze, has handed up a Minute of Proposed Interim Orders setting out ten Orders sought to be made on an interim basis until the final hearing:
1. All previous parenting orders are discharged.
2. The parents to the child [X] born…

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 Landis and Landis

Details

AGLC: LANDIS & LANDIS [2012] FMCAfam 1452
Case: [2012] FMCAfam 1452
Decision Date: 20 December 2012

CaseChat Overview and Summary

In the Family Court of Australia, the case of Landis and Landis involved the parents of a child, [X], who were engaged in a dispute over parenting arrangements. The mother and the father had both filed applications to vary existing orders concerning the child’s residence and contact, as well as an application for final parenting orders. The mother additionally sought an order to prevent the father from removing the child from the Sydney Metropolitan area outside of specific holiday periods.

The court was required to decide on the discharge of an existing order that restricted the father’s ability to remove the child from the Sydney Metropolitan area outside of certain times, as well as the applications to vary the existing orders and the application for final parenting orders. The court also needed to consider the mother’s request for an interpreter during the upcoming final hearing.

The court discharged the order restricting the father's movement of the child outside of specific holiday periods, finding that the original reasons for the restriction were no longer applicable. The court dismissed the applications to vary the existing orders, stating that there was insufficient evidence to warrant a change in the current arrangements. The application for final parenting orders was adjourned to a later date to allow for a full hearing. Additionally, the court granted leave for the issuance of further subpoenas and arranged for an interpreter to assist the mother during the final hearing, at her request.

Orders

Orders of the court

BY CONSENT

Order (10) made on 23 November 2010 restraining the parties from removing the child [X] from the Sydney Metropolitan area except between 1:00 pm on Friday 24 December and 10:00pm on Monday 27 December 2010 is discharged.

AND IT IS FURTHER ORDERED THAT

The Application by the Applicant Mother and the Application by the Respondent Father to vary the Orders made on 23 November 2010 are otherwise dismissed.

The Application for final parenting orders is adjourned to 6 March 2013 for Final Hearing at 10:00am and allocated three (3) days.

The Independent Children’s Lawyer is granted leave to issue ten (10) further subpoenas.

An interpreter in the Thai language is required for the assistance of the Applicant on 6, 7 and 8 March 2013 AND THE COURT NOTES that the Applicant requests that Ms T should be allocated as interpreter if possible.

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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