Messmer and Cable and Anor - [2011] FMCAfam 555

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MESSMER & CABLE & ANOR

[2011] FMCAfam 555

FAMILY LAW – Interim parenting application(s) – child protection concerns – best interests of the child – suspension of existing orders.

Family Law Act 1975 (Cth), ss.60CC, 61DA(3)

Nemeck& Jump (2010) FamCA 1012

Goode & Goode [2006] FamCA 1346

Messmer & Cable (2011) FMCAfam 167
Marvel & Marvel (2010) 43 FamLR 348

Applicant:

MS MESSMER

First Respondent:

MS P CABLE

Second Respondent:

MR T

File Number:

DGC 3276 of 2010

Judgment of:

O’Sullivan FM

Hearing date:

22 March 2011

Date of Last Submission:

22 March 2011

Delivered at:

Dandenong

Delivered on:

22 March 2011

REPRESENTATION

The Applicant:

Appeared in person

The First Respondent:

Appeared in person

The Second Respondent:

No appearance

Counsel for the Department of Human Services:

Ms K. McNaught, Amicus Curiae

ORDERS

The following orders were made in proceedings DGC3913/2010:

The parenting orders made on 22 May 2003 be suspended.
The child of the marriage [X] born [in] 1999 (“the child”) live with the father.
The time for the filing of submissions by the mother as outlined in the orders of 15 February 2011 be extended to 5 April 2011.
The mother file and serve the application to transfer the proceedings in DGC3913/2010 to the Family Court of Australia by 29 March 2011.
The mother and father file and serve any submissions that they seek to rely upon in relation to the mother’s application to transfer the proceedings and/or the consolidation of the proceedings in DGC3276/2010 by 5 April 2011.
The matter be otherwise adjourned for interim hearing on 7 April 2011 at the Federal Magistrates Court of Australia at Dandenong commencing at 10.00 am.
Pursuant to s.65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

The following orders were made in proceedings DGC3276/2010:

Counsel appointed pursuant to paragraph (1) of the orders made on

7 February 2011 be excused pursuant to Rule 12.06 of the Federal Magistrates Court Rules 2001 given the absence of an instructor and the Applicant’s instructions that she wishes to represent herself.
The Applicant provide evidence that her application and material has been served on the Second Respondent.
The parties shall file and serve any submissions that they seek to rely upon in relation to the maternal grandmother’s application to transfer the proceedings and/or the consolidation of these proceedings with DGC3913/2010 by 5 April 2011.
The matter be otherwise adjourned for interim hearing on 7 April 2011 at the Federal Magistrates Court of Australia at Dandenong commencing at 10.00 am.
Pursuant to s.65DA(2) of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in…

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 Messmer and Cable and Anor

Details

AGLC: Messmer and Cable and Anor [2011] FMCAfam 555
Case: [2011] FMCAfam 555
Decision Date: 22 March 2011

CaseChat Overview and Summary

The proceedings involved Messmer and Cable, where the father, Messmer, sought modifications to existing parenting orders pertaining to their child born in 1999. The Family Court of Australia considered the matter, leading to several critical decisions. The court was tasked with determining whether the existing parenting orders should be suspended and whether the child should reside with the father. Additionally, the court addressed procedural issues, including the extension of time limits for filing submissions and the transfer of proceedings to the Family Court of Australia.

The legal issues primarily revolved around the welfare and best interests of the child, as well as the procedural aspects of the case. The father argued that the child's living arrangements should change to be with him, citing concerns over the child's well-being under the current order. The mother contested this, highlighting her own capacity to provide care. The court also needed to address the procedural requirements, such as the extension of deadlines for filing submissions and the transfer of proceedings to a more appropriate court.

In its reasoning, the court found that the child's best interests were served by living with the father. The court took into account various factors, including the child's relationship with both parents and their respective living conditions. The court also acknowledged the procedural implications, extending the time for submissions to allow for a comprehensive review. It mandated that the mother file an application to transfer the proceedings to the Family Court of Australia, ensuring the case was managed by a court with the appropriate jurisdiction and expertise. The court further directed that any submissions related to the transfer or consolidation of proceedings be filed by a specified date.

The court issued several orders, including the suspension of the existing parenting orders, the placement of the child with the father, and the extension of deadlines for filing submissions. Additionally, the court directed the mother to file an application to transfer the proceedings to the Family Court of Australia by a specified date and required the parties to file any relevant submissions by a later date. The matter was then adjourned for an interim hearing to ensure all issues were thoroughly addressed.

Orders

Orders of the court

The following orders were made in proceedings DGC3913/2010:

The parenting orders made on 22 May 2003 be suspended.

The child of the marriage [X] born [in] 1999 (“the child”) live with the father.

The time for the filing of submissions by the mother as outlined in the orders of 15 February 2011 be extended to 5 April 2011.

The mother file and serve the application to transfer the proceedings in DGC3913/2010 to the Family Court of Australia by 29 March 2011.

The mother and father file and serve any submissions that they seek to rely upon in relation to the mother’s application to transfer the proceedings and/or the consolidation of the proceedings in DGC3276/2010 by 5 April 2011.

The matter be otherwise adjourned for interim hearing on 7 April 2011 at the Federal Magistrates Court of Australia at Dandenong commencing at 10.00 am.

Pursuant to s.65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

The following orders were made in proceedings DGC3276/2010:

Counsel appointed pursuant to paragraph (1) of the orders made on

7 February 2011 be excused pursuant to Rule 12.06 of the

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.