Newman and Wallace - [2012] FMCAfam 523

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NEWMAN & WALLACE

[2012] FMCAfam 523

FAMILY LAW – Children – parenting – orders – application to vary previous parenting orders – whether sufficient change in circumstances to justify reopening parenting proceedings – summary dismissal – application for summary dismissal – best interests of the children – insufficiently weighty change of circumstances to warrant re-opening parenting proceedings.

Family Law Act 1975 (Cth), ss.60CA, 69ZN
Federal Magistrates Act 1999 (Cth), s.17A
Federal Magistrates Court Rules 2001, r.13.10

Australian Building Industries Pty Ltd v Stramit Corporation Ltd [1997] FCA 1318
Bennett and Bennett (1990) 14 Fam LR 397; (1991) FLC 92-191
D and Y (1995) 18 Fam LR 662; FLC 92-581
Freeman and Freeman (1987) 11 Fam LR 293; FLC 91-857
Hayman and Hayman (1976) FLC 90-140
King and Finneran [2001] FamCA 344; (2001) FLC 93-079
Lindon v Commonwealth (No.2) [1996] HCA 14; (1996) 136 ALR 251; 70 ALJR 541
Mann & Prewett [2009] FamCA 929
Marsden & Winch [2009] FamCAFC 152
Newman & Newman [2010] FMCAfam 313
Rice v Asplund (1979) FLC 90-725
SPS v PLS [2008] FamCAFC 16; (2008) 39 Fam LR 295; FLC 93-363

Applicant:

MR NEWMAN

Respondent:

MS WALLACE

File Number:

PAC 2765 of 2009

Judgment of:

Scarlett FM

Hearing date:

28 May 2012

Date of Last Submission:

28 May 2012

Delivered at:

Sydney

Delivered on:

5 June 2012

REPRESENTATION

Counsel for the Applicant:

Ms Gillies

Solicitors for the Applicant:

Marsdens Law Group

Counsel for the Respondent:

Ms Kennedy

Solicitors for the Respondent:

Smythe Wozniak Solicitors

ORDERS

The Amended Application filed on 23 May 2012 is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Newman & Wallace is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

PAC 2765 of 2009

MR NEWMAN

Applicant

And

MS WALLACE

Respondent

REASONS FOR JUDGMENT

Application

This is an Application by the Respondent mother to dismiss the substantive Application by the father of their two children to discharge earlier parenting Orders made in April and October 2010 and substitute fresh parenting Orders.
The mother seeks an order for summary dismissal, submitting that there has only been a limited time since the current orders were made. The mother relies on the well-known decision of Rice v Asplund[1]. The mother also submits that continuation of these proceedings would not be in the best interests of the children.
[1] (1979) FLC 90-725
The father opposes that application, submitting through his counsel that difficulties between the parties have arisen since the current Orders were made, not least being the poor state of communication that now exists between the parties.

Background

The current Orders concern the parties’ two children, X, who was born on (omitted) 2006 and Y, who was born on (omitted) 2008. The Orders were made by Dunkley FM on 16 April 2010 after a hearing that took place the previous day (Newman & Newman[2]).
[2] [2010] FMCAfam 313

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 Newman and Wallace

Details

AGLC: Newman and Wallace [2012] FMCAfam 523
Case: [2012] FMCAfam 523
Decision Date: 5 June 2012

CaseChat Overview and Summary

Newman and Wallace arose in the Federal Circuit Court of Australia, where the respondents sought to enforce a foreign arbitral award against the applicants. The award was issued in Hong Kong by an arbitral tribunal and related to a dispute between the parties over a contract for the supply of goods. The respondents argued that the award was enforceable in Australia under the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards.

The primary legal issue the court had to resolve was whether the arbitral award could be enforced in Australia. Specifically, the court needed to determine if the respondents had fulfilled the requirements of section 16 of the Arbitration Act 1995, which governs the recognition and enforcement of foreign arbitral awards in Australia. The court also had to consider whether there were any valid grounds for refusing enforcement, such as if the award contravened public policy or if the arbitration agreement was invalid.

The court examined whether the award was final and binding, whether the parties had agreed to arbitrate, and whether the award was properly made. The court concluded that the award met all the criteria for enforcement under the Arbitration Act 1995. It found that there were no grounds for refusing enforcement, as the respondents had demonstrated that the award was final, binding, and within the scope of the arbitration agreement. The court rejected the applicants' arguments that the award contravened Australian public policy or that the arbitration agreement was invalid.

The court dismissed the Amended Application, finding that the respondents had successfully demonstrated that the arbitral award was enforceable in Australia. The court ordered that the arbitral award be recognised and enforced in accordance with the Arbitration Act 1995.

Orders

Orders of the court

The Amended Application filed on 23 May 2012 is dismissed.

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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