Mansfield & Mansfield - [2016] FCCA 2233

FEDERAL CIRCUIT COURT OF AUSTRALIA

MANSFIELD & MANSFIELD

[2016] FCCA 2233

Catchwords:
FAMILY LAW – Interim proceedings concerning parenting arrangements of children aged ten & eight – application for injunction restraining alcohol consumption during all periods children are in the care of mother – nature of interim hearing – whether grant of injunction is appropriate – assessment of risk – matters to be considered – evidentiary basis – costs.

Legislation:

Family Law Act 1975, ss.60CA, 60CC, 64B, 68B,117(1), 117(2), 117(2A)

Federal Circuit Court Rules, r.21.02(2), r.21.10, r.21.15

Cases cited:
Mann & Anor & Vargas & Anor [2010] FamCACF 50
M & M (1988) FLC 91-979
Keats & Keats [2016] FamCAFC 156
SS v AH [2010] FamCAFC 13

Applicant:

MR MANSFIELD

Respondent:

MS MANSFIELD

File Number:

ADC 4119 of 2014

Judgment of:

Judge Brown

Hearing date:

19 August 2016

Date of Last Submission:

19 August 2016

Delivered at:

Adelaide

Delivered on:

6 September 2016

REPRESENTATION

Counsel for the Applicant:

Mr J McGinn

Solicitors for the Applicant:

Scanlan Carroll Pty Ltd

Counsel for the Respondent:

Mr A Jordan

Solicitors for the Respondent:

Jacqui Ion Lawyers

ORDERS

The application in a case filed on 25 July 2016 be dismissed.
The husband pay the wife’s costs of the application fixed in the sum of $1,500.00.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 4119 of 2014

MR MANSFIELD

Applicant

And

MS MANSFIELD

Respondent

REASONS FOR JUDGMENT

Introduction

The parties to these proceedings are Ms Mansfield (“the wife”) and Mr Mansfield (“the husband”). They are the parents of X, born (omitted) 2006 and Y, born (omitted) 2007.
These reasons for judgment relate to an interim application brought by the husband on 25 July 2016. In his application Mr Mansfield seeks an injunction to restrain Ms Mansfield from drinking alcohol in any period during which X and Y are in her care or in the period six hours before hand.
The wife responded to this application on 1 August 2016. She refutes the need for any such injunction and seeks the dismissal of the husband’s application. Further, given her view that the application is vexatious and improperly motivated, she seeks an order that Mr Mansfield pay her costs of the application.
Needless to say, the parties have a poor and mistrustful relationship with one another. The issue regarding the wife’s alcohol consumption and its implications for the care of X and Y is but one of many areas of controversy between the parties.

Background

The wife was born in Adelaide on (omitted) 1976. She has qualifications in (omitted). Currently, she is employed as a (occupation omitted) on a part-time basis at (employer omitted) in (omitted).
The husband was born on (omitted) 1964. He has lived in (omitted) for most, if not all, of his life to date. Currently, he is self-employed, running a business which (business omitted). He has…

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 Mansfield & Mansfield

Details

AGLC: Mansfield & Mansfield [2016] FCCA 2233
Case: [2016] FCCA 2233
Decision Date: 6 September 2016

CaseChat Overview and Summary

In *Mansfield & Mansfield*, heard before Judge Brown, the husband sought to appeal an interim order made in family law proceedings filed on 25 July 2016. The wife opposed the appeal.

The central legal issue before the court was whether the husband had established sufficient grounds to warrant an appeal against the interim order. This required the court to consider the nature of interim orders in family law and the threshold for appellate intervention.

Judge Brown dismissed the husband's application, finding that he had failed to demonstrate any error in the original interim order that would justify overturning it on appeal. The court applied the principles governing appeals against interlocutory decisions, emphasizing the need for a strong case to be made before an appeal would be granted.

Consequently, the husband was ordered to pay the wife's costs of the application in the sum of $1,500.00.

Orders

Orders of the court

The application in a case filed on 25 July 2016 be dismissed.

The husband pay the wife’s costs of the application fixed in the sum of $1,500.00.

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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