MANN & PREWETT - [2013] FMCAfam 314

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MANN & PREWETT

[2013] FMCAfam 314

FAMILY LAW – Parenting – consideration of the threshold question posed by Rice & Asplund as a preliminary issue – by agreement hearing on basis of submissions – finding as to appropriate change of circumstances – finding as to possibility of significant change to previous orders.

Family Law Act 1975, s.60CC

Rice and Asplund (1979) FLC 90-725
Freeman and Freeman (1987) FLC 91-857
Miller and Harrington [2008] FamCAFC 150
Marsden v Winch[2009] FamCAFC 152
SPS and PLS [2008] FamCAFC 16
DL & W [2012] FamCAFC 5
Collu & Rinaldo [2010] FamCAFC 53
Mazorski v Albright[2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
AMS and AIF (1999) 24 Fam LR 756

Applicant:

MS MANN

Respondent:

MR PREWETT

File Number:

SYC 645 of 2008

Judgment of:

Foster FM

Hearing date:

13 March 2013

Date of Last Submission:

13 March 2013

Delivered at:

Wollongong

Delivered on:

5 April 2013

REPRESENTATION

Counsel for the Applicant:

Mr Cook

Solicitors for the Applicant:

Legal Solutions

Counsel for the Respondent:

Mr Schonell

Solicitors for the Respondent:

Paul & Paul Lawyers

ORDERS

That the Response filed on 8 January 2013 be dismissed in so far as it seeks a dismissal of the mother’s application filed on the 21 December 2012.
That the father file and serve an amended response setting out with particularity parenting orders sought by him together with an affidavit in support of thereof within 21 days from this date.
Pursuant to section 68L of the Family Law Act 1975 an Independent Children’s Lawyer be appointed for the child X born (omitted) 2004 and the Legal Aid Commission of New South Wales is requested to provide such representation. The parties are to provide to the Legal Aid Commission at PO Box K847, HAYMARKET NSW 1238 or DX 5 SYDNEY forthwith all documents thus far filed by them in these proceedings together with all existing orders and copies of any relevant reports.
Leave is granted to the Independent Children’s Lawyer to issue such Subpoena as they consider relevant to the issues before the Court.
Leave is granted to the Independent Children’s Lawyer to have photocopy access to documents produced on Subpoena in these proceedings.
The Independent Children’s Lawyer, being a party to these proceedings in receipt of a grant of Legal Aid, be exempt from fees by reason of Rule 2.04(1) Family Law (Fees) Regulation 2012.
Leave be granted to the Independent Children’s Lawyer to re-list the matter on short notice by communication with the Court in Chambers in appropriate circumstances.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYC 645 of 2008

MS MANN

Applicant

And

MR PREWETT

Respondent

REASONS FOR JUDGMENT

Proceedings

These are parenting proceedings commenced by the applicant mother by application filed on 21 December 2012.
In that application the mother sought…

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: MANN & PREWETT [2013] FMCAfam 314
Case: [2013] FMCAfam 314
Decision Date: 5 April 2013

CaseChat Overview and Summary

Mann & Prewett involved proceedings in the Family Court of Australia concerning parenting arrangements for a child born in 2004. The mother had filed an application on 21 December 2012, and the father responded on 8 January 2013. The primary legal issues before the court were whether the father's response was adequate and whether an Independent Children's Lawyer should be appointed for the child.

The court found that the father's response did not sufficiently address the mother's application and sought more detailed information regarding his parenting orders. Consequently, the court ordered the father to file an amended response within 21 days, specifying the parenting orders he sought and providing an affidavit in support of these orders. Furthermore, the court decided to appoint an Independent Children's Lawyer to represent the child, acknowledging the importance of having a dedicated advocate for the child's interests. This decision was made in accordance with section 68L of the Family Law Act 1975. The Independent Children's Lawyer was granted various powers, including the ability to issue subpoenas, access to photocopies of documents, and exemption from fees. The matter was to be re-listed on short notice if deemed necessary.

The court's orders included the dismissal of the father's response as it stood, the requirement for an amended response, and the appointment of an Independent Children's Lawyer. The parties were instructed to provide all relevant documents and orders to the Legal Aid Commission of New South Wales to facilitate this representation.

Orders

Orders of the court

That the Response filed on 8 January 2013 be dismissed in so far as it seeks a dismissal of the mother’s application filed on the 21 December 2012.

That the father file and serve an amended response setting out with particularity parenting orders sought by him together with an affidavit in support of thereof within 21 days from this date.

Pursuant to section 68L of the Family Law Act 1975 an Independent Children’s Lawyer be appointed for the child X born (omitted) 2004 and the Legal Aid Commission of New South Wales is requested to provide such representation. The parties are to provide to the Legal Aid Commission at PO Box K847, HAYMARKET NSW 1238 or DX 5 SYDNEY forthwith all documents thus far filed by them in these proceedings together with all existing orders and copies of any relevant reports.

Leave is granted to the Independent Children’s Lawyer to issue such Subpoena as they consider relevant to the issues before the Court.

Leave is granted to the Independent Children’s Lawyer to have photocopy access to documents produced on Subpoena in these proceedings.

The Independent Children’s Lawyer, being a party to these proceedings in receipt of a grant of Legal Aid, be exempt from fees by reason of Rule 2.04(1) Family Law (Fees) Regulation 2012.

Leave be granted to the Independent Children’s Lawyer to re-list the matter on short notice by communication with the Court in Chambers in appropriate circumstances.

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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