Messmer and Cable (No.2) - [2011] FMCAfam 554

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MESSMER & CABLE (No.2)

[2011] FMCAfam 554

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

Respondent:

MR CABLE

File Number:

DGC 3913 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

Counsel for the Respondent:

Mr T. Moisidis

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 these orders.

AND THE COURT NOTES:

The Department of Human Services are excused from attendance on the adjourned date.

IT IS NOTED that…

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 (No.2)

Details

AGLC: Messmer and Cable (No.2) [2011] FMCAfam 554
Case: [2011] FMCAfam 554
Decision Date: 22 March 2011

CaseChat Overview and Summary

In Messmer and Cable (No.2), the parties involved were a father and mother engaged in a protracted dispute over parenting arrangements for their child, [X], born in 1999. The case was heard in the Federal Magistrates Court of Australia, specifically in the Dandenong division, where the father, Messmer, sought amendments to existing parenting orders that had been established in 2003. The mother, Cable, contested these amendments, leading to a series of hearings and applications. The legal issues before the court involved the interpretation and modification of existing parenting orders, the appropriateness of the current living arrangements for the child, and procedural matters regarding the transfer and consolidation of related proceedings.

The court had to determine whether the existing parenting orders, which had been in place since 2003, should be suspended and replaced with new orders. The primary consideration was the best interests of the child, as dictated by section 60CA of the Family Law Act 1975. The father argued that the child should live with him, while the mother contested this proposal and sought to maintain the status quo. Additionally, the court had to address procedural matters concerning the filing of submissions and the potential transfer of proceedings to the Family Court of Australia. The court's decision was influenced by the child's welfare, the parents' ability to provide a stable environment, and the procedural requirements set out in the Family Law Act.

In its decision, the court found that the best interests of the child were served by the proposed change in living arrangements, leading to the suspension of the 2003 parenting orders and the establishment of new orders that placed the child with the father. The court also extended deadlines for the submission of written materials and ordered the transfer and consolidation of related proceedings to streamline the litigation process. The court emphasised that the orders were made with the child's welfare as the paramount concern and detailed the obligations and consequences of non-compliance with the orders as required by the Family Law Act. The matter was adjourned for an interim hearing to further address the issues and ensure that all procedural steps were being appropriately managed.

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

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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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