Prantage and Prantage - [2014] FamCA 541

FAMILY COURT OF AUSTRALIA

PRANTAGE & PRANTAGE

[2014] FamCA 541

FAMILY LAW – Urgent proceedings – oral application by husband for interim change of residence of children aged 15 and 12 – legislative pathway – where not in the best interests of the children for residence to change – oral application by wife for power of arrest to attach to existing injunction – order under s 68C made – costs – indemnity costs not appropriate – costs ordered.

Family Law Act 1975 (Cth) ss 60CC, 61DA, 68B, 68C, 117(2A)

Prantage & Prantage (2013) 49 Fam LR 197

APPLICANT:

Mr Prantage

RESPONDENT:

Ms Prantage

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

MLC

11263

2008

DATE DELIVERED:

17 July 2014

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Bennett J

HEARING DATE:

17 July 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr A. Prantage in person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT:

Ms Smallwood

SOLICITOR FOR THE RESPONDENT:

Lampe Family Lawyers

Orders

(As amended 22 July 2014)

IT IS ORDERED THAT

1.The wife and the husband each have leave to make oral applications to the Court as follows:-
a) As to the husband, for an urgent variation of parenting orders so that the children M born … 1998 and D born … 2002 (“the children”) reside with him and spend time with the mother only a supervised basis;
b) As to the wife, on the basis that the children are immediately returned to her care with a power of arrest pursuant to s. 68C of the Family Law Act 1975 attached to the injunctions provided for in paragraphs 5 and 8 of the Order made on 2 March 2012.
2.The father’s oral application for interim parenting orders is dismissed.
3.It being the case that pursuant to paragraphs 5 and 8 of the Order made on 2 March 2012 (which is attached) there are injunctions in force against the husband under section 68B of the Family Law Act 1975 for the personal protection of each of the children, pursuant to section 68C of the Family Law Act 1975, if a police officer believes, on reasonable grounds, that the husband has breached the injunctions (or any of them) the police officer may arrest the husband without warrant and the husband be brought before this Registry of the Court or any other court exercising jurisdiction under the Act, on the first day on which the Court next sits after the arrest, or as soon as practicable after that date AND IT IS NOTED that pursuant to s 122AA a person who is authorised or directed by a provision of the Family Law Act 1975 , or by a warrant issued under a provision of the Act, to arrest another person may use such reasonable force as is necessary to make the arrest or to prevent the escape of that person after the arrest.

IT IS DIRECTED THAT:

4.My Associate send a copy of this Order to the Marshall of the Family Court…

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 Prantage and Prantage

Details

AGLC: Prantage and Prantage [2014] FamCA 541
Case: [2014] FamCA 541
Decision Date: 17 July 2014

CaseChat Overview and Summary

This matter concerned applications made by both the wife and the husband in proceedings before Bennett J of the Family Court of Australia. The husband sought urgent interim parenting orders for the children, M and D, to reside with him and for the wife to only spend supervised time with them. Conversely, the wife sought the immediate return of the children to her care, with an attached power of arrest to existing injunctions.

The central legal issues before the Court were whether to grant the husband's oral application for interim parenting orders, and whether to grant the wife's oral application for the immediate return of the children to her care, including the attachment of a power of arrest to existing injunctions. The Court was also required to consider the implications of injunctions previously made under section 68B of the Family Law Act 1975 for the personal protection of the children.

Bennett J dismissed the husband's oral application for interim parenting orders. However, the Court granted the wife leave to make her oral application, and in doing so, ordered that if a police officer believed on reasonable grounds that the husband had breached the injunctions in force under section 68B of the Family Law Act 1975, that officer could arrest the husband without warrant. The Court also directed that documents produced by Dr NZ remain with the Subpoenaed Documents Clerk, with both parties entitled to inspect them under supervision. The husband was ordered to pay the wife's costs of the day in the sum of $4,725.00.

Orders

Orders of the court

(As amended 22 July 2014)

IT IS ORDERED THAT

1. The wife and the husband each have leave to make oral applications to the Court as follows:-

a) As to the husband, for an urgent variation of parenting orders so that the children M born … 1998 and D born … 2002 (“the children”) reside with him and spend time with the mother only a supervised basis;

b) As to the wife, on the basis that the children are immediately returned to her care with a power of arrest pursuant to s. 68C of the Family Law Act 1975 attached to the injunctions provided for in paragraphs 5 and 8 of the Order made on 2 March 2012.

2. The father’s oral application for interim parenting orders is dismissed.

3. It being the case that pursuant to paragraphs 5 and 8 of the Order made on 2 March 2012 (which is attached) there are injunctions in force against the husband under section 68B of the Family Law Act 1975 for the personal protection of each of the children, pursuant to section 68C of the Family Law Act 1975, if a police officer believes, on reasonable grounds, that the husband has breached the injunctions (or any of them) the police officer may arrest the husband without warrant and the husband be brought before this Registry of the Court or any other court exercising jurisdiction under the Act, on the first day on which the Court next sits after the arrest, or as soon as practicable after that date AND IT IS NOTED that pursuant to s 122AA a person who is authorised or directed by a provision of the Family Law Act 1975 , or by a warrant issued under a provision of the Act, to arrest another person may use such reasonable force as is necessary to make the arrest or to prevent the escape of that person after the arrest.

IT IS DIRECTED THAT:

4. My Associate send a copy of this Order to the Marshall of the Family Court of Australia electronically.

5. The documents deposited by or on behalf of Dr NZ with the Subpoenaed Documents Clerk of this Registry of the Court remain in the possession of the Subpoenaed Documents Clerk with both parties entitled to inspect those documents under direct supervision by arrangement with the Subpoenaed Documents Clerk.

IT IS FURTHER ORDERED THAT:

6. Any person wishing to make a submission in relation to the documents produced by Dr NZ do so by not later than 10.00 am on Tuesday 22 July 2014.

7. My reasons for decision be transcribed and when settled be made available to the parties.

8. The husband pay the wife’s costs of and incidental to this day fixed in the sum of $4,725.00 and such costs be paid within 30 days.

IT IS FURTHER DIRECTED THAT:

9. The copy of the interim intervention order granted on 8 July 2014 to the husband with the wife as respondent be marked “Exhibit A” and remain on the Court file.

10. The copy of the interim intervention order granted on 8 July 2014 to the husband’s father, Mr Prantage Snr with the wife as respondent be marked “Exhibit B” and remain on the Court file.

AND IT IS NOTED that this matter is listed for delivery of my reserved judgment on Wednesday 23 July 2014 at 10.00 am.

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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