Mitchell and Mitchell - [2019] FamCA 350

FAMILY COURT OF AUSTRALIA

MITCHELL & MITCHELL

[2019] FamCA 350

FAMILY LAW – PRACTICE AND PROCEDURE – Child related proceedings – Application to proceed undefended – Refused.
FAMILY LAW – PRACTICE AND PROCEDURE – Property proceedings – Application to proceed undefended – Granted.

Family Law Rules 2004 (Cth)

Tate v Tate (2000) FLC 93-047
U v U [2002] HCA 36

APPLICANT:

Ms Mitchell

RESPONDENT:

Mr Mitchell

INDEPENDENT CHILDREN’S LAWYER:

Ms D Garwell

FILE NUMBER:

AYC

255

2013

DATE DELIVERED:

28 May 2019

PLACE DELIVERED:

Canberra

PLACE HEARD:

Canberra

JUDGMENT OF:

Gill J

HEARING DATE:

28 May 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms R Dart

SOLICITOR FOR THE APPLICANT:

Rama Myers Family Lawyers

SOLICITOR FOR THE RESPONDENT:

Self-representing

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms M Davis

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

Orders

The application, in so far as it relates to the child related proceedings, that the proceedings go ahead on an undefended basis is dismissed.
The property proceedings in this matter will proceed on an undefended basis and the Father will not be at liberty to question the Mother in respect of property related matters, nor to make submissions as to such.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: AYC 255 of 2013

MS MITCHELL

Applicant

And

MR MITCHELL

Respondent

REASONS FOR JUDGMENT

This matter concerns an Application in a Case to proceed on an undefended basis against the Father in these proceedings. The Application in a Case was filed on 1 May 2019 by the Mother and is supported by an affidavit by herself.
There are two distinct aspects of the proceedings that are before me. They were commenced by means of an Initiating Application filed by the Father directed only to property.
The Mother has responded to those in relation to both property and children's matters. In the children's matters she seeks the discharge of final orders which have now been superseded in some respects by interlocutory orders so as to have the result that the Father would not have any parental responsibility nor would he spend any time with the children and in fact that orders would be made by means of injunction to keep him away from the Mother and the children.
The Father has filed no response to this. His response was made orally this morning wherein he indicated to the Court that he seeks equal time.…

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 Mitchell and Mitchell

Details

AGLC: Mitchell and Mitchell [2019] FamCA 350
Case: [2019] FamCA 350
Decision Date: 28 May 2019

CaseChat Overview and Summary

In the matter of *Mitchell and Mitchell*, heard by Gill J, the application concerned proceedings between the Father and the Mother. The dispute involved both child-related proceedings and property proceedings.

The court was required to determine whether the child-related proceedings should proceed on an undefended basis, and whether the property proceedings should also proceed on an undefended basis, thereby limiting the Father's ability to participate in those aspects of the case.

Gill J dismissed the application concerning the child-related proceedings, meaning they would not proceed on an undefended basis. However, the court ordered that the property proceedings would proceed on an undefended basis. This meant the Father was not permitted to question the Mother regarding property matters or make submissions on those issues.

Orders

Orders of the court

The application, in so far as it relates to the child related proceedings, that the proceedings go ahead on an undefended basis is dismissed.

The property proceedings in this matter will proceed on an undefended basis and the Father will not be at liberty to question the Mother in respect of property related matters, nor to make submissions as to such.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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.