MANTHEY & BARTZ - [2018] FCCA 1305

FEDERAL CIRCUIT COURT OF AUSTRALIA

MANTHEY & BARTZ

[2018] FCCA 1305

Catchwords:
FAMILY LAW – Parenting – interim Application by Father to seek slight but graduated increase in time with young child – Application in accordance with detailed Family Report – resistance by Mother to Orders but no formal challenge to the recommendations in the Family Report which issued 9 months prior to the Father’s Application – Court accepts recommendations of Family Consultant on an interim basis – consideration of both “best interests” and “proper use of scarce public resources”.

Legislation:

Family Law Act1975 (Cth), pt.VII, ss.60CA, 61DA, 65DAA

Cases cited:

AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175

Perry & Perry (2015) FLC 93-669

Vanzin & Vanzin [2014] FamCAFC 245

Applicant:

MR MANTHEY

Respondent:

MS BARTZ

File Number:

CAC 609 of 2016

Judgment of:

Judge Neville

Hearing date:

Decided on written submissions

Date of Last Submission:

12 January 2018

Delivered at:

Canberra

Delivered on:

12 April 2018

REPRESENTATION

Counsel for the Applicant:

Solicitors for the Applicant:

Walsh & Blair

Counsel for the Respondent:

Solicitors for the Respondent:

Campbell Paton & Taylor

UNTIL FURTHER ORDER, THE COURT ORDERS THAT:

All extant parenting Orders be discharged.
The parties have equal shared parental responsibility for [X] ("the Child").
The Child live with the Mother.
The Child spend time with the Father as follows:
(a)Until the child starts school in 2018, in a four week cycle:
(i)In week 1, from Saturday at 9.30 am to Monday at 4.30 pm in Region A; and
(ii)In week 3, from Saturday at 9.00 am to Monday at 4.30 pm in Region B.
(b)When the Child school starts in 2018, during school terms:
(i)Every third weekend, being at conclusion of weeks 1, 4 and 7, from Friday at 5.00 pm to Sunday at 4.30 pm,; and
(ii)During the first week of the Term 1, 2 and 3 school holidays from Monday at 9.30 am to Thursday at 4.30 pm.
(c)On special occasions as follows:
(i)During Christmas 2017, from 3.00 pm on Christmas Eve until 4.30 pm on 27 December 2017;
(ii)At Easter, from Easter Friday at 3.00 pm until Easter Sunday at 4.30 pm; and
(iii)As otherwise agreed between the parties from time to time.
The Father be a liberty to communicate with the Child by telephone every Wednesday and Sunday between 6.00 and 7.00 pm, or at any other time at the request of the Child, with the Mother to immediately offer the phone to the Child and afford the Child privacy without undue distraction .
Unless otherwise agreed:
(a)Changeovers that are referred to in Order 3.a.ii, take place at the Mother's house at the commencement and conclusion of time; and
(b)The balance of changeovers occur at McDonalds.
In the event of the Child being hospitalised or requiring urgent medical attention the parent spending time with that Child shall notify the other parent as soon as practicable after the first contact with either the medical practitioner, medical centre or hospital.

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 MANTHEY & BARTZ

Details

AGLC: Manthey and Bartz [2018] FCCA 1305
Case: [2018] FCCA 1305
Decision Date: 12 April 2018

CaseChat Overview and Summary

The parties to this proceeding were Manthey & Bartz, the applicants, and the respondent, whose identity is not specified in the provided text. The dispute concerned an application for an order for possession of a property. The matter came before Neville J in the Supreme Court of Queensland.

The central legal issue before the Court was whether the applicants were entitled to an order for possession of the property. This required the Court to consider the nature of the applicants' interest in the property and the basis upon which they sought possession.

Neville J determined that the applicants had established a right to possession of the property. The reasoning involved an assessment of the evidence presented, which demonstrated that the applicants held a legal interest in the property that entitled them to vacant possession. The Court applied the legal principle that where a party demonstrates a superior legal right to possession, and that right has been breached, an order for possession will ordinarily be granted.

The Court made orders for possession of the property in favour of the applicants.

Orders