Manns & Keeler

[2007] FamCA 718

FAMILY COURT OF AUSTRALIA

MANNS & KEELER [2007] FamCA 718

FAMILY LAW - ORDERS - Variation - Application dismissed

APPLICANT: Mr Manns

RESPONDENT: Ms Keeler

FILE NUMBER: SYF 2256 of 2002

DATE DELIVERED: 13 July 2007

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Justice Cohen

HEARING DATE: 13 July 2007

REPRESENTATION

APPLICANT No appearance of the Applicant nor on the Applicant’s behalf

RESPONDENT IN PERSON: The wife

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 2256  of 2002

Mr Manns

Applicant

And

Ms Keeler

Respondent

REASONS FOR JUDGMENT

Ex- Tempore

1. In this matter, which is part-heard, the husband commenced proceedings for the purpose of obtaining children's orders which were different from consent orders which the parties agreed to be made and which were made by this Court on 27 July 2005. 

2. On the husband's filing his application for final orders which were different from those consent orders, the filing being on 28 September 2006, the wife made an application for summary dismissal of the husband's application.

3. Essentially, there were two grounds; one was that it was frivolous or vexatious because there had been no changes of circumstance of significance since the previous final orders were made, and secondly, simple reliance upon the fact that there has been no change.  That matter was being dealt with when it became part-heard. 

4. The matter was adjourned until 21 June 2007.  By that time, the husband had given sufficient evidence for it to be clear that, in the adequate time he had to give oral evidence and in view of his affidavits, he had put forward nothing of substance which would indicate a significant change of circumstances to warrant any change in the previously agreed orders.

5. On 21 June 2007 he did not appear.  I ordered that he be served with a copy of my orders which adjourned the matter for mention until today at 10 am and required the husband to file and serve an affidavit explaining his reasons for not appearing on 21 June. 

6. I am satisfied that the husband has been served with my orders of 21 June. In addition to what I ordered, I also ensured, by way of notation, that the husband would understand that if he did not appear today there was a possibility that his application would be dismissed on the ground of his failure to prosecute it. 

7. He has not appeared today.  I can see no reason why his application of 28 September 2006 should not be dismissed.  I think it is in the children's interests that it is dismissed because they should not be put in a position where their future is uncertain when the husband is not prepared to prosecute his claim to alter that future. 

8. In the circumstances, I shall dismiss the husband's application, and the order I make is that the husband's application filed 28 September 2006 is dismissed

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cohen

Associate: 

Date:              13 July 2007 

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as MANNS & KEELER