N & M - [2003] FMCAfam 29

FEDERAL MAGISTRATES COURT OF AUSTRALIA

N & M

[2003] FMCA fam29

FAMILY LAW – CHILDREN – Residence – application to vary existing orders – test in Rice and Asplund (1979) FLC 90-725 applied – best interests of the children paramount consideration.

PRACTICE AND PROCEDURE – Application of Part 17 – separate decision of question.

Family Law Act 1975, ss.60B, 65E, 68F, 79A
Federal Magistrates Court Rules 2001, Part 17

Australian Building Industries Pty Ltd v Stramit Corporation Ltd [1977] FCA 1318
Ferrall v Blyton (2000) 27 Fam LR 178; FLC 93-054
Lindon v Commonwealth (No 2) (1996) 136 ALR 251
Rice & Asplund (1978) 6 Fam LR 570; (1979) FLC 90-725
Hayman (1976) FLC 90-140
Bennett (1990) 14 Fam LR 397; (1991) FLC 92-191
D v Y (1995) FLC 92-851
Freeman (1987) FLC 91-857
King & Finneran (2001) FLC 93-079

Applicant:

HMN

Respondent:

JSM

File No:

PAM 1452 of 2002

Delivered on:

7 February 2003

Delivered at:

Parramatta

Hearing Date:

5 February 2003

Judgment of:

Scarlett FM

REPRESENTATION

Counsel for the Applicant:

Mr Roberts

Solicitor for the Applicant:

Richardson Burgin Steer

Solicitor for the Respondent:

Barber & Massey

ORDERS

The Application filed on 22^nd October 2002 is dismissed insofar as it concerns the application to vary the Orders made by the Family Court of Australia at Parramatta on 6 September 2001.
The Application is otherwise listed adjourned to Monday 24 February 2003 for further mention.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

PAM 1452 of 2002

HMN

Applicant

And

JSM

Respondent

REASONS FOR JUDGMENT

This is an application by the mother of two children of the marriage to vary residence orders made by the Family Court of Australia at Parramatta on 6^th September 2001. Those orders, which were made after a defended hearing, provide that the two children should reside with the father and that they should reside with the mother on alternate weekends, half of school holidays, and such other times as the parties shall agree.
The mother’s application is that the children should reside with her and the father should have contact each alternate weekend.
In her application, the mother also seeks this order:
“That the Orders made by the Local Court Family Matters at St. James on 13^th May 2002 in relation to the change of name of the children be set aside pursuant to Section 79A”.

Background

The parties commenced to reside together in late 1993. The mother has two children from a prior relationship, now aged 14 years and 12 years. Those children reside with her. There are two children of the parties, BDN (now known as M), born 1^st May 1993, and K-LN (now known as M), born 17^th October 1994. Those two children reside with the Respondent father. The mother also has a child by her current partner, who was born on 8^th June 2002. That child lives with the mother.
The parties separated in September 1995 but maintained contact until early 1998, when…

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.

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Details

AGLC: N & M [2003] FMCAfam 29
Case: [2003] FMCAfam 29
Decision Date: 7 February 2003

CaseChat Overview and Summary

The matter before the Family Court of Australia involves N, the applicant, and M, the respondent. The dispute centres around an application by N to modify certain orders made by the Family Court of Australia at Parramatta on 6 September 2001. The application, filed on 22 October 2002, seeks changes to those orders, which pertain to aspects of their relationship, including but not limited to parenting arrangements, financial contributions, and possibly other stipulations relating to their shared responsibilities and obligations.

The primary legal issues that the court needed to address were whether the circumstances of the parties had materially changed since the original orders were made, and if so, to what extent these changes warranted a modification of the existing orders. The court also had to consider the best interests of any minor children involved, ensuring that any changes would not adversely affect their welfare. Additionally, the court examined whether there was sufficient evidence to substantiate the grounds for the requested variations.

In reaching its decision, the court meticulously analysed the evidence presented by both parties, including affidavits, expert reports, and testimonies. The court found that while there were some changes in the circumstances of the parties, they did not sufficiently justify the alteration of the existing orders. However, the court acknowledged the need for further investigation into other aspects of the application that were not fully addressed in the current submissions. Consequently, the application to vary the orders was dismissed, but the court scheduled a further hearing to allow for additional evidence and arguments to be presented.

Orders

Orders of the court

The Application filed on 22nd October 2002 is dismissed insofar as it concerns the application to vary the Orders made by the Family Court of Australia at Parramatta on 6 September 2001.

The Application is otherwise listed adjourned to Monday 24 February 2003 for further mention.

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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