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 of 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

1. 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

1. 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.

2. 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.

3. 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.

4. 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.

5. The parties both agree that the Court has jurisdiction to determine the parenting proceedings and the question that was listed to be determined today is whether it is in best interests of the children for the parenting proceedings to be determined in the Family Court of Australia or in Country E.

6. At the commencement of the hearing today, the mother made an application for the matter to be adjourned for the purposes of obtaining a Family Report which, is submitted, will assist me in that determination as to whether it is in the best interests of the children for the parenting proceedings to be determined in the Family Court of Australia or in Country E.

7. When this matter was before the Court some months ago and was to be listed for hearing, I indicated that I would be assisted by some form of Memorandum from a Family Consultant. At that time I note that both of the parties, the mother in particular, were opposed to that course. It was in fact of my own motion that I ordered that the parents participate in an interview with a Family Consultant pursuant to section 11F of the Family Law Act 1975 (Cth). That involved the interviewing of both of the parents and each of the children over a number of hours and a Children’s and Parents Issues Assessment has been provided to the Court which gives some assistance, in particular, about the current circumstances of the children.

8. It is also a matter where it is not in dispute, a concession having been made, that prior to the proceedings, the children were primarily in the care of the mother and that the father spent time with them. Also, it is not in dispute that the father’s application in Country E is for the mother to continue to be the parent with whom the children are to reside and his application is to spend time with them.

9. It has been submitted on behalf of the mother in support of her application that there is no difference between the Court having regard to the best interests of the children “at large” and the best interests of the children as it relates to the application itself, that is, whether it is in their best interests for the parenting proceedings to be determined in this country or Country E. In my view, the authorities do not support that submission and the recent decision of Killam & Loeng[1] which was delivered on 18 March 2015, reinforces that the best interests consideration must relate to the issue that is before the Court and that is the issue of forum.

   [1] [2015] FamCAFC 41.

10. The application for the adjournment is opposed by the father who essentially submits that it is a delaying tactic in the proceedings.  He says the children were to be taken from Country E and brought to Australia in November of last year. The father has been attempting for some time to have this issue determined in circumstances where there has not been a change in the law and the mother herself opposed the Child Responsive Program Memorandum.  I am concerned at this application being made in the morning when the matter was to be determined and by the fact that it has now taken up a considerable amount of the time that had been allocated for this hearing.

11. The Independent Children’s Lawyer opposes the matter being adjourned and is of the view that the Court has sufficient information concerning the best interest considerations to be applied in this particular application.

12. I am of the view without making any finding as to whether the application is a delaying tactic, that I do have sufficient enough information to determine this issue today and, in particular, that I do have sufficient information about the best interest considerations bearing in mind the nature of the application.

13. In the course of opposing the mother’s application for an adjournment, the father made application that the nature of today’s proceedings be changed and that it be determined by me by a process of summary determination, that is without any cross-examination being allowed.

14. I accept that there has possibly been some degree of confusion that may have arisen from a type of hybrid proceeding that I indicated that I would be adopting. The intention had certainly been for there to be some form of hearing, that is, some testing of the facts but I made it clear at all time that the testing of the facts must only be as relates to the application before me as opposed to in effect mini hearing on the merits of the parenting application.

15. This morning counsel for the Independent Children’s Lawyer has given, in my view, a very good example of the type of facts that do need to be tested in these proceedings. That is the mother’s assertion that she will not or in effect cannot return to Country E as she fears for her safety.  In my view, that is an appropriate matter to be tested, and I will ensure (in the event that I decide that the procedure I had to be adopted will continue to be adopted) that the parties stay on track in terms of their cross-examination.

16. I accept the submission made by the mother that to change the nature of the proceedings today and allow no testing of the evidence would change the playing field and may be prejudicial and could be unfair and in those circumstances.

17. I confirm that the matter will proceed in the way in which I had indicated.

18. The order of the Court is that the application for adjournment is dismissed and the matter is to proceed as indicated with some limited testing of the evidence as to the particular matters in issue, as they relate to this application.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 20 March 2015.

Legal Associate: 

Date:  1 April 2015.