Mankus and Matulis (No 2) - [2015] FamCA 221

FAMILY COURT OF AUSTRALIA

MANKUS & MATULIS (NO 2)

[2015] FamCA 221

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournment – where the mother sought an adjournment on the morning of the hearing – where the mother sought to have a Family Report prepared – where the mother previously opposed an order for a section 11F of the Family Law Act 1975 (Cth) report – where the father opposes the adjournment – where the Independent Children’s Lawyer opposes the adjournment – where the application is in relation to the forum of parenting proceedings – application for adjournment dismissed.

FAMILY LAW – PRACTICE AND PROCEDURE – where the father seeks to have the matter determined by a summary determination – where the parties were allowed to have some limited testing of the facts – where it is necessary for some findings to be made – where the mother says this would change the playing field and be prejudicial – application dismissed.

Family Law Act 1975 (Cth) s 11F.

Killam & Loeng [2015] FamCAFC 41.

APPLICANT:

Ms Mankus

RESPONDENT:

Mr Matulis

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

PAC

5648

2014

DATE DELIVERED:

20 March 2015

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Hannam J

HEARING DATE:

20 March 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Shroder

SOLICITOR FOR THE APPLICANT:

Smythe Wozniak Solicitors

COUNSEL FOR THE RESPONDENT:

Mr Tockar

SOLICITOR FOR THE RESPONDENT:

Owen Hodge Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms DeVere

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Parramatta

Orders

The application for adjournment is dismissed and the matter is to proceed as indicated with limited evidence as to the matters in issue.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Mankus & Matulis(No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 5648 of 2014

Ms Mankus

Applicant

And

Mr Matulis

Respondent

REASONS FOR JUDGMENT

Introduction

In this matter I am now dealing with two applications, one which has been made by the mother and one which has been made by the father.
The proceedings relate to parents who separated in December 2012 after a 12 year marriage and are in dispute about the future parenting of their three children. Those children are B who is 7 and twins, C and D, who are 5.
The application that had been listed today was a determination in relation to the forum in which that parenting dispute is to be heard, Australia or Country E.
The background of the matter is that the father has commenced family law proceedings including parenting proceedings in Country E and wishes for the parenting dispute to be completed in that county. The mother has commenced parenting proceedings in the Family Court of Australia and seeks for those proceedings to be determined in this Court.
The parties both agree that the Court has jurisdiction to determine the…

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 Mankus and Matulis (No 2)

Details

AGLC: Mankus and Matulis (No 2) [2015] FamCA 221
Case: [2015] FamCA 221
Decision Date: 20 March 2015

CaseChat Overview and Summary

In *Mankus and Matulis (No 2)*, the Federal Circuit and Family Court of Australia considered an application by the mother for an adjournment of parenting proceedings on the morning of the hearing. The mother sought to have a Family Report prepared, despite having previously opposed such an order. The father opposed the adjournment, as did the Independent Children’s Lawyer.

The court was required to determine whether to grant the mother's application for an adjournment to allow for a Family Report to be prepared, and also whether to grant the father's application for a summary determination of the proceedings. The mother contended that a summary determination would be prejudicial and alter the existing circumstances.

Hannam J dismissed the mother's application for an adjournment, noting that the application was made on the day of the hearing and that the mother had previously opposed the preparation of a Family Report. The court also dismissed the father's application for a summary determination, finding that limited testing of the facts was necessary and that some findings would need to be made.

Consequently, the court ordered that the application for adjournment be dismissed and that the matter proceed with limited evidence as to the matters in issue.

Orders

Orders of the court

The application for adjournment is dismissed and the matter is to proceed as indicated with limited evidence as to the matters in issue.

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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