Prentice & Bellas and Anor - [2012] FamCA 108

FAMILY COURT OF AUSTRALIA

PRENTICE & BELLAS AND ANOR [2012] FamCA 108

FAMILY LAW – PUBLICATION – where part of parenting proceedings published on the internet – where prima facie case that there has been a breach of s 121 of the Family Law Act 1975 – where father sought order compelling an unjoined third party to remove the material from the internet – where the Court does not have the power to make the order sought by the father – where recommendation made to the Queensland Police Service and the Australian Federal Police to investigate whether a breach of s 121 has occurred and/or whether any other criminal offences have occurred.

Family Law Act 1975 (Cth)

APPLICANT:

Mr Prentice

1^st RESPONDENT:

Ms Bellas

2^nd RESPONDENT:

Ian Bruce Bell

INDEPENDENT CHILDREN’S LAWYER:

Ms Sheehey

FILE NUMBER:

BRC

11565

2009

DATE DELIVERED:

24 February 2012

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Murphy J

HEARING DATE:

24 February 2012

REPRESENTATION

THE APPLICANT:

In person

THE RESPONDENTS:

No appearance

SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER:

Rhonda Sheehy & Associates

Orders

IT IS ORDERED THAT

The Application in a Case filed by the father on 19 December 2011 be dismissed.
All outstanding applications or cross-applications be dismissed.
The Independent Children's Lawyer be discharged as and from today.

IT IS DIRECTED THAT

The Marshal of this Court take all such steps as might be required so as to ensure that any breach of section 121 of the Family Law Act 1975 (Cth) (“the Act”) revealed by the material specified in the succeeding paragraphs of these Orders is investigated fully and, if appropriate, thereafter prosecuted.

IT IS RESPECTFULLY REQUESTED THAT

The Commissioner of the Queensland Police Service take all such steps as might be reasonably required to investigate whether any offence or offences, including but not limited to kidnapping of the child T PRENTICE born … July 1996, have been committed by:
a.The mother; and/or
b.Ian Bruce Bell; and/or
c.Any other person.
as revealed by, or indicated in, the documents authorised to be published by paragraph 7 of these Orders.
The Commissioner of the Australian Federal Police take all such steps as might be reasonably required to investigate whether any offence or offences, including but not limited to the indictable offence prescribed by s 121 of the Act in respect of proceedings involving or related to the child T PRENTICE born … July 1996, have been committed by:
a.The mother; and/or
b.Ian Bruce Bell; and/or
c.Any other person
as revealed by, or indicated in, the documents authorised to be published by paragraph 7 of these Orders.

IT IS FURTHER ORDERED THAT

Pursuant to s 121(9)(g) of the Act, an account of these proceedings, namely:
a.Exhibit ICL1 in these proceedings, being the statement of Ms M;
b.The affidavit of the mother filed 20 February 2012;
c.The affidavit of Ian Bruce Bell filed 20 February 2012;
d.The affidavit of the father filed 19 December 2011;
e.The affidavit of the father filed 24 February…

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 Prentice & Bellas and Anor

Details

AGLC: Prentice & Bellas and Anor [2012] FamCA 108
Case: [2012] FamCA 108
Decision Date: 24 February 2012

CaseChat Overview and Summary

This matter came before Murphy J in the Family Court of Australia concerning an application filed by the father on 19 December 2011, along with all outstanding applications and cross-applications. The Independent Children's Lawyer was discharged.

The court was required to determine the disposition of the father's application and any related applications, as well as to consider potential breaches of section 121 of the *Family Law Act 1975* (Cth) and other offences, including kidnapping, in relation to the child T Prentice.

Murphy J dismissed the father's application and all outstanding applications. The court directed the Marshal of the Court to ensure a full investigation and potential prosecution of any breaches of section 121 of the Act revealed by the material. Furthermore, the court respectfully requested the Commissioner of the Queensland Police Service and the Commissioner of the Australian Federal Police to investigate potential offences, including kidnapping and indictable offences under section 121 of the Act, committed by the mother, Ian Bruce Bell, or any other person, as indicated by the proceedings. The court also authorised the publication of specific documents, including statements and affidavits, to the Commissioners of Police and their authorised officers, and ordered that the judgment and orders be sent to the mother and Ian Bruce Bell.

Orders

Orders of the court

IT IS ORDERED THAT

1. The Application in a Case filed by the father on 19 December 2011 be dismissed.

2. All outstanding applications or cross-applications be dismissed.

3. The Independent Children's Lawyer be discharged as and from today.

IT IS DIRECTED THAT

4. The Marshal of this Court take all such steps as might be required so as to ensure that any breach of section 121 of the Family Law Act 1975 (Cth) (“the Act”) revealed by the material specified in the succeeding paragraphs of these Orders is investigated fully and, if appropriate, thereafter prosecuted.

IT IS RESPECTFULLY REQUESTED THAT

5. The Commissioner of the Queensland Police Service take all such steps as might be reasonably required to investigate whether any offence or offences, including but not limited to kidnapping of the child T PRENTICE born … July 1996, have been committed by:

a. The mother; and/or

b. Ian Bruce Bell; and/or

c. Any other person.

as revealed by, or indicated in, the documents authorised to be published by paragraph 7 of these Orders.

6. The Commissioner of the Australian Federal Police take all such steps as might be reasonably required to investigate whether any offence or offences, including but not limited to the indictable offence prescribed by s 121 of the Act in respect of proceedings involving or related to the child T PRENTICE born … July 1996, have been committed by:

a. The mother; and/or

b. Ian Bruce Bell; and/or

c. Any other person

as revealed by, or indicated in, the documents authorised to be published by paragraph 7 of these Orders.

IT IS FURTHER ORDERED THAT

7. Pursuant to s 121(9)(g) of the Act, an account of these proceedings, namely:

a. Exhibit ICL1 in these proceedings, being the statement of Ms M;

b. The affidavit of the mother filed 20 February 2012;

c. The affidavit of Ian Bruce Bell filed 20 February 2012;

d. The affidavit of the father filed 19 December 2011;

e. The affidavit of the father filed 24 February 2012;

f. These orders;

g. The Reasons for Judgment delivered today

be approved for publication to the Commissioner of the Queensland Police Service; the Commissioner of the Australian Federal Police and all such police officers and persons as each might reasonably permit or authorise.

8. The documents referred to at subparagraphs 7(f) and (g) of these Orders be sent by post by an officer of this Court to each of the First and Second Respondents at the address appearing on their respective affidavits filed 20 February 2012.

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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