Mannering and Murrill

[2019] FamCA 275

FAMILY COURT OF AUSTRALIA

MANNERING & MURRILL [2019] FamCA 275

FAMILY LAW – PRACTICE AND PROCEDURE – reopen – further evidence.

APPLICANT: Ms Mannering

RESPONDENT: Mr Murrill

INDEPENDENT CHILDREN’S LAWYER: Timothy Grooby

FILE NUMBER: SYC 1578 of 2015

DATE DELIVERED: 2 May 2019

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 2 May 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Diamond Conway Lawyers

SOLICITOR FOR THE RESPONDENT: Creagh & Creagh

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders

1. I grant leave for the reopening of the proceedings in this matter.

2. I adjourn the proceedings for further directions to 12pm on 22 May 2019 and grant the parties’ liberty to appear on that occasion by telephone, provided they make arrangements with the Canberra Registry of the family Court of Australia to do so seven days in advance of that date. 

3. I reserve the date of 1 August 2019 for the taking of the remainder of the evidence following reopening in this matter, with such hearing to take place in the Sydney Registry of the Family Court of Australia.

IT IS NOTED THAT

1. Enquiries are currently being made with the Family Consultants as to their availability to prepare a wishes report in relation to Z should she wish to express any views to them in relation to the matter.

IT IS FURTHER ORDERED THAT

1. On being advised of the availability of a Family Consultant the parties will be advised of that availability in order to assist them in the further preparation of the matter.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Mannering & Murrill has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: SYC 1578 of 2015

Ms Mannering

Applicant

And

Mr Murrill

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This matter concerns a final hearing conducted in August 2018 and for which the judgment has been reserved since that time, it now being May 2019.

2. Application is made by the Mother to reopen the proceedings.  That Application is not opposed by the Father and it is supported by the Independent Children’s Lawyer.

3. At the final hearing it can be observed that three of the major factual matters related to views expressed by Z as to who she should live with and where she would live, encompassing an expression of views that she would live with the Father and reside with him in Country B, secondly, the nature of the relationship between Z and each of her parents, noting that there was evidence to support the notion that there had been a fundamental breakdown of Z' relationship with her Mother and a strong alignment between Z and her Father which was not indicative of what had occurred in the previous history of their relationship and thirdly, the question about how these views and this breakdown of relationship had come about.  This then had the capacity to have significant bearing on answering questions as to how, or if, meaningful relationships could be retained between Z and each of her parents and as to serious questions about the parental capacity in particular of the Father.  Those questions have obviously not been finally resolved at this point.

4. The Mother, in her Application, has provided evidence to the Court that Z has undergone a fundamental shift and has now expressed the view that she wishes to remain in Australia and to live with her Mother, and that there has been some significant change in the nature of the relationship between Z and her Father.  Under those circumstances, even if the matter had been opposed, bearing in mind the principles that I am to apply in child related proceedings, and in particular principle one of s 69ZN that I am to consider the needs of the child concerned and the impact of the conduct of the proceedings may have on the child in determining the conduct the proceedings, the balance would have been struck at the necessity to reopen to ensure that orders could be made which are in Z' best interests.  It is appropriate that the Father has taken the position that he has in not opposing the reopening under those circumstances. 

5. I have been further advised that the parties have had some preliminary discussions which may resolve the matter.  If the matter resolves clearly it will not require further hearing, however, I will make arrangements to allow for the prompt finalisation of the evidence in the proceedings. 

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 2 May 2019.

Associate:

Date:  3 May 2019