Matthews and Norris - [2016] FamCA 1156

FAMILY COURT OF AUSTRALIA

MATTHEWS & NORRIS [2016] FamCA 1156

FAMILY LAW – INTERLOCUTORY – Injunction – Where the father seeks an injunction restraining the mother from removing the child from Australia – Where, two months before, the mother sought interim relief enabling her to relocate with the child to New Zealand and her interim application was dismissed – Where the mother again seeks orders enabling her to take the child to India and New Zealand – Where the father perceives India to be dangerous and is concerned the mother will not return with the child if she is permitted to travel to New Zealand – Ordered that the parties are restrained from removing the child from the Commonwealth of Australia

Family Law Act 1975 (Cth), ss 65Y, 65Z, 98AB

McKenzie v McKenzie (1970) 3 All ER 1034

APPLICANT: Mr Matthews

RESPONDENT: Ms Norris

INDEPENDENT CHILDREN’S LAWYER: Mr Scally, Legal Aid NSW

FILE NUMBER: NCC 2226 of 2015

DATE DELIVERED: 22 December 2016

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 22 December 2016
REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Carty

SOLICITOR FOR THE APPLICANT: Oliver Campbell Heslop Lawyers

COUNSEL FOR THE RESPONDENT: Not Applicable

SOLICITOR FOR THE RESPONDENT: Not Applicable

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Not Applicable

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Scally, Legal Aid NSW
Orders
BY CONSENT, IT IS ORDERED THAT
1.Leave is granted to the respondent wife to rely upon Mr West as her McKenzie Friend.

PENDING FURTHER ORDER, IT IS FURTHER ORDERED THAT
2.Orders 1.11 and 1.12 made on 21 January 2016 (as amended on 2 March 2016) are discharged.
3.Each party is restrained from removing and/or causing or allowing, by their agents or otherwise, the removal of B (the child), born … 2010, from the Commonwealth of Australia, and it is requested that the Australian Federal Police give effect to this order by placing the name of the child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and to maintain the child’s name on that Watch List for a period of 12 months.
4.Otherwise:
a.The Application in a Case filed on 13 December 2016 is dismissed;
b.The Response to an Application in a Case filed on 19 December 2016 is dismissed; and

c.Any and all other outstanding applications for interim relief are dismissed.

5.No order as to costs.

BY CONSENT, IT IS FURTHER ORDERED THAT
6.Leave is granted to the parties and the Independent Children’s Lawyer to inspect the documents produced on subpoena by:
a.Positive Fix; and
b.Roads & Maritime Services.

7.Order 13 made on 24 November 2016 is discharged and the substantive proceedings are instead re-listed before the Court for further procedural directions at 9:30 am on Thursday, 23 March 2017.

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

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 Matthews and Norris

Details

AGLC: Matthews and Norris [2016] FamCA 1156
Case: [2016] FamCA 1156
Decision Date: 22 December 2016

CaseChat Overview and Summary

In the matter of *Matthews and Norris*, Austin J of the Supreme Court of New South Wales considered applications concerning the welfare of a child, B. The proceedings involved a dispute between the parties, presumably parents, regarding the child's future and the terms of existing court orders.

The primary legal issues before the court were whether to grant leave for the respondent wife to be represented by a McKenzie Friend, the discharge of specific interim orders relating to the child, and the imposition of a travel restriction preventing the child's removal from Australia. The court also had to determine the fate of various applications filed by the parties and consider the inspection of documents produced by third parties.

Austin J, by consent of the parties, granted leave for the respondent wife to rely upon Mr West as her McKenzie Friend. The court also, by consent and pending further order, discharged existing orders numbered 1.11 and 1.12. Crucially, the court ordered that neither party was permitted to remove the child, B, from the Commonwealth of Australia, requesting the Australian Federal Police to place the child's name on the Airport Watch List for 12 months. Further, the court dismissed the applications filed by the parties on 13 and 19 December 2016, along with any other outstanding applications for interim relief. By consent, leave was also granted for the parties and the Independent Children's Lawyer to inspect documents produced by Positive Fix and Roads & Maritime Services. Finally, order 13 of 24 November 2016 was discharged, and the substantive proceedings were relisted for further procedural directions. No order was made as to costs.

Orders

Orders of the court

BY CONSENT, IT IS ORDERED THAT

1. Leave is granted to the respondent wife to rely upon Mr West as her McKenzie Friend.

PENDING FURTHER ORDER, IT IS FURTHER ORDERED THAT

2. Orders 1.11 and 1.12 made on 21 January 2016 (as amended on 2 March 2016) are discharged.

3. Each party is restrained from removing and/or causing or allowing, by their agents or otherwise, the removal of B (the child), born … 2010, from the Commonwealth of Australia, and it is requested that the Australian Federal Police give effect to this order by placing the name of the child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and to maintain the child’s name on that Watch List for a period of 12 months.

4. Otherwise:

a. The Application in a Case filed on 13 December 2016 is dismissed;

b. The Response to an Application in a Case filed on 19 December 2016 is dismissed; and

c. Any and all other outstanding applications for interim relief are dismissed.

5. No order as to costs.

BY CONSENT, IT IS FURTHER ORDERED THAT

6. Leave is granted to the parties and the Independent Children’s Lawyer to inspect the documents produced on subpoena by:

a. Positive Fix; and

b. Roads & Maritime Services.

7. Order 13 made on 24 November 2016 is discharged and the substantive proceedings are instead re-listed before the Court for further procedural directions at 9:30 am on Thursday, 23 March 2017.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.