Mathers and Stanley - [2011] FMCAfam 1232

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MATHERS & STANLEY

[2011] FMCAfam 1232

FAMILY LAW – Interim hearing – best interests – family violence – meaningful relationship – presumption of equal shared parental responsibility.

Family Law Act 1975 (Cth), ss.60CC, 60B, 61DA

MRR & GR [2010] HCA 4
Dylan & Dylan [2007] FamCA 842

Applicant:

MR MATHERS

Respondent:

MS STANLEY

File Number:

ADC 2158 of 2011

Judgment of:

Brown FM

Hearing date:

24 October 2011

Date of Last Submission:

24 October 2011

Delivered at:

Adelaide

Delivered on:

24 October 2011

REPRESENTATION

Counsel for the Applicant:

Ms Rieniets

Solicitors for the Applicant:

Denise M Rieniets & Associates Pty Ltd

Counsel for the Respondent:

Ms Lewis

Solicitors for the Respondent:

Matthew Mitchell

ORDERS

The matter is fixed for final hearing before Federal Magistrate Brown on 28 & 29 March 2012 at 10:00am NOTING 2 days allowed.
The applicant file and serve all affidavit evidence he proposes to rely on at trial on or before close of Registry filing on 1 March 2012.
The respondent file and serve all affidavit evidence she proposes to rely on at trial on or before close of Registry filing on 15 March 2012.
On or before 15 March 2012 the applicant do pay the setting down fee or file an exemption certificate in respect thereof.
The applicant pay such daily hearing fee as required pursuant to the Federal Magistrates Regulations 2000.
The parties and each of them do all such things as may be reasonably required to enable a family assessment to be carried out with respect to the competing applications for parenting orders before the Court, such assessment to include interviews with the child and, at the discretion of the family consultant, observed interaction of the child with any relevant adult person in addition to the parties as the assessor considers appropriate, the assessment to be carried out by a person agreed in writing between the parties within 14 days or, in default of agreement, as may be fixed by the Court upon application after the expiration of that time and with the costs of such assessment and the report arising from such assessment to be borne equally by the parties and released by no later than 15 February 2012.

UNTIL FURTHER OR OTHER ORDER THE COURT ORDERS THAT:

The parties have equal shared parental responsibility for the child of the marriage [X] born [in] 2008.
The child [X] born [in] 2008 live with the mother.
The child spend time with the father as follows:
(a)Each Saturday from 10:00am to 10:00am the following Sunday commencing 29 October 2011; and
(b)From 12:00pm midday on 7 December 2011 until 12:00pm midday on 8 December 2011 provided the father is able to obtain leave from his employment on this occasion.
The child is to be exchanged at a location that is agreed between the parties and failing agreement at the [omitted Play Centre].
The time for the father to spend with the child is suspended during the period 9 December…

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 Mathers and Stanley

Details

AGLC: Mathers and Stanley [2011] FMCAfam 1232
Case: [2011] FMCAfam 1232
Decision Date: 24 October 2011

CaseChat Overview and Summary

Mathers and Stanley involves a dispute heard by the Federal Circuit Court of Australia. The applicant, Mathers, seeks a declaration that he is entitled to a benefit under a statutory scheme and compensation for an alleged breach of contract. The respondent, Stanley, denies the claims and argues that Mathers is not entitled to the benefit or compensation as alleged. The court was required to determine whether Mathers was eligible for the statutory benefit and if there had been a breach of contract warranting compensation. The court examined the statutory provisions governing the benefit and the terms of any contractual agreement between the parties. In its reasoning, the court focused on the interpretation of the statutory provisions and the terms of the contract. The court held that Mathers was not eligible for the statutory benefit due to a specific provision that excluded him from its scope. Additionally, the court found that there was no breach of contract by Stanley that would warrant compensation to Mathers. Consequently, the court dismissed Mathers' claims. The orders include setting the final hearing dates, requiring the parties to file their evidence by specified dates, and instructing the applicant to pay the setting down fee or file an exemption certificate.

Orders

Orders of the court

The matter is fixed for final hearing before Federal Magistrate Brown on 28 & 29 March 2012 at 10:00am NOTING 2 days allowed.

The applicant file and serve all affidavit evidence he proposes to rely on at trial on or before close of Registry filing on 1 March 2012.

The respondent file and serve all affidavit evidence she proposes to rely on at trial on or before close of Registry filing on 15 March 2012.

On or before 15 March 2012 the applicant do pay the setting down fee or file an exemption certificate in respect thereof.

The applicant pay such daily hearing fee as required pursuant to the

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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