Preiss and Preiss (No. 2) - [2018] FamCA 805

FAMILY COURT OF AUSTRALIA

PREISS & PREISS (NO. 2)

[2018] FamCA 805

FAMILY LAW – CASE MANAGEMENT– enforcement of orders–where husband fails to file admissible evidence to justify a s 79A claim–husband says he will get legal advice–adjournment with costs.

Family Law Act 1975 (Cth)

APPLICANT:

Ms Preiss

RESPONDENT:

Mr Preiss

FILE NUMBER:

MLC

10148

2014

DATE DELIVERED:

21 September 2018

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

21 September 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms S. Fisken

SOLICITOR FOR THE APPLICANT:

Gadens Lawyers

THE RESPONDENT:

In Person

Orders

All outstanding applications are adjourned to 10:00am on 2 November 2018 for the determination of any outstanding interlocutory or interim issues.
The Husband file and serve an amended application (if he is so advised) together with any affidavit upon which he intends to rely by no later than 4pm on 5 October 2018.
The Wife file and serve any response to any such amended application as the Husband may so file by no later than 4pm on 19 October 2018 (noting that the wife intends to bring an application for summary dismissal).
That the Husband and the Wife immediately do all things necessary to register at the contact centre nearest to the residence of B for the purposes of any future order relating to supervision by the contact centre of time between the Wife and B noting that such supervision will not start before 2 November 2018.
That the solicitors for the Wife (and to the extent that the Husband has legal representatives on the court record, those solicitors) send to:
(a) The Department of Health and Human Services; and
(b) The Victorian Police Force,
copies of the Wife’s proposed orders relating to B for the return date of the interim applications where they request that the relevant authority provide to the court before the return date a written indication of that body’s views as to whether such orders should be made and/or whether they will intervene in the proceedings.
Leave be granted to the wife to issue two subpoenae to
(a) Mr Kelly to produce records; and
(b) The various banking organisations of the Husband to produce his records.
That within 14 days, the Husband provide to the solicitors for the Wife, the documents set out in paragraph 14 (a) to (f) of the proposed interim orders of the Wife.
That the Husband pay the Wife’s costs thrown away this day in the sum of $2950.
That the reasons this day be transcribed.

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 Preiss & Preiss (No. 2) 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…

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 Preiss and Preiss (No. 2)

Details

AGLC: Preiss and Preiss (No. 2) [2018] FamCA 805
Case: [2018] FamCA 805
Decision Date: 21 September 2018

CaseChat Overview and Summary

In *Preiss and Preiss (No. 2)*, Cronin J considered applications made by the husband and wife in family law proceedings. The wife indicated an intention to bring an application for summary dismissal of the proceedings.

The court was required to determine various interlocutory and interim issues, including the filing and service of amended applications and responses, the registration of parties with a contact centre for supervised time with a child, and the provision of information to relevant government authorities. The wife also sought leave to issue subpoenas for documents from a Mr Kelly and the husband's banking organisations, and for the husband to provide specific documents to the wife's solicitors.

Cronin J adjourned outstanding applications for the determination of interlocutory and interim issues. The husband was ordered to file and serve any amended application and supporting affidavit by a specified date, with the wife to file and serve any response thereafter. Both parties were directed to take immediate steps to register with a contact centre for supervised time with the child, with such supervision not commencing before the adjourned hearing date. The wife's solicitors were ordered to send copies of the wife's proposed orders concerning the child to the Department of Health and Human Services and Victorian Police, requesting their views and potential intervention. Leave was granted to the wife to issue subpoenas for records from Mr Kelly and the husband's banking organisations. The husband was also ordered to provide specific documents to the wife's solicitors within 14 days. The husband was ordered to pay the wife's costs thrown away on that day.

Orders

Orders of the court

All outstanding applications are adjourned to 10:00am on 2 November 2018 for the determination of any outstanding interlocutory or interim issues.

The Husband file and serve an amended application (if he is so advised) together with any affidavit upon which he intends to rely by no later than 4pm on 5 October 2018.

The Wife file and serve any response to any such amended application as the Husband may so file by no later than 4pm on 19 October 2018 (noting that the wife intends to bring an application for summary dismissal).

That the Husband and the Wife immediately do all things necessary to register at the contact centre nearest to the residence of B for the purposes of any future order relating to supervision by the contact centre of time between the Wife and B noting that such supervision will not start before 2 November 2018.

That the solicitors for the Wife (and to the extent that the Husband has legal representatives on the court record, those solicitors) send to:

(a) The Department of Health and Human Services; and

(b) The Victorian Police Force,

copies of the Wife’s proposed orders relating to B for the return date of the interim applications where they request that the relevant authority provide to the court before the return date a written indication of that body’s views as to whether such orders should be made and/or whether they will intervene in the proceedings.

Leave be granted to the wife to issue two subpoenae to

(a) Mr Kelly to produce records; and

(b) The various banking organisations of the Husband to produce his records.

That within 14 days, the Husband provide to the solicitors for the Wife, the documents set out in paragraph 14 (a) to (f) of the proposed interim orders of the Wife.

That the Husband pay the Wife’s costs thrown away this day in the sum of $2950.

That the reasons this day be transcribed.

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

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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