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Prewett & Mann

Prewett & Mann

Case [2013] FamCAFC 130

Appeal

Jurisdiction

Breach of Contract

Unconscionable Conduct

Fiduciary Duty

Family Law

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FAMILY COURT OF AUSTRALIA

PREWETT & MANN

[2013] FamCAFC 130

FAMILY LAW – APPEAL – CHILDREN – PARENTING ORDERS – Where previous consent orders - Where parties agreed that the child would live and attend school in Sydney – Where mother applied to change orders – Consideration of Rice & Asplund (1979) FLC 90-723 – Where Court determined issue of changed circumstances as a discrete threshold hearing – Where mother’s application permitted to proceed - Whether changed circumstances arose by way of disobedience of the previous consent orders – HELD –Appeal dismissed.

Family Law Act 1975 (Cth): ss 60CC

DL & W (2012) FLC 93-496
Langmeil & Grange [2013] FamCAFC 31
Mann & Prewett [2009] FamCA 929
Marsden v Winch (2009) 42 Fam LR 1
Metwally (No 2) v University of Wollongong (1985) 60 ALR
Miller & Harrington (2008) 39 Fam LR 654
Rice & Asplund (1979) FLC 90-723
SPS & PLS (2008) FLC 93-363

APPELLANT:

Mr Prewett

RESPONDENT:

Ms Mann

FILE NUMBER:

SYC

645

2008

APPEAL NUMBER:

2013

DATE DELIVERED:

27 August 2013

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ainslie-Wallace, Ryan & Le Poer Trench JJ

HEARING DATE:

15 August 2013

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

5 April 2013

LOWER COURT MNC:

[2013] FMCAfam 314

REPRESENTATION

COUNSEL FOR THE APPELLANT:

TD North SC

SOLICITOR FOR THE APPELLANT:

Paul & Paul

COUNSEL FOR THE RESPONDENT:

P Cook

SOLICITOR FOR THE RESPONDENT:

Legal Solutions

Orders

The appeal against the orders of Federal Magistrate Foster (as his Honour then was) made on 5 April 2013 is dismissed.
Within one (1) month of agreement or assessment as to quantum, the appellant father shall pay the costs of the respondent mother in relation to this appeal.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Prewett & Mann has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 49 of 2013
File Number: SYC 645 of 2008

Mr Prewett

Appellant

And

Ms Mann

Respondent

REASONS FOR DECISION

Introduction

This is an appeal by Mr Prewett (“the father”) against an order made by Foster FM (as his Honour then was) on 5 April 2013 which rejected the father’s application for dismissal of Ms Mann’s (“the mother”) application for parenting orders.
The parties were previously married and are the parents of X (“the child”) who is aged nine. They separated shortly before the child had her first birthday, following which by agreement the child lived with the mother and spent time with the father.
Some two and a half years after separation, the mother moved with the child from Sydney’s Eastern Suburbs, where the father also lived, to M which is south of Sydney. This was the catalyst for an application by the father for parenting orders and injunctions, relevantly to restrain the mother from changing…

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 Prewett & Mann

Details

AGLC: Prewett & Mann [2013] FamCAFC 130
Case: [2013] FamCAFC 130
Decision Date

CaseChat Overview and Summary

This appeal by Mr Prewett, the father, against an order made by Foster FM, on 5 April 2013, which rejected the father’s application for dismissal of Ms Mann’s, the mother’s, application for parenting orders is dismissed. The parents were previously married and are the parents of X, the child, who is aged nine. The parties separated shortly before the child had her first birthday, following which by agreement the child lived with the mother and spent time with the father. Some two and a half years after separation, the mother moved with the child from Sydney’s Eastern Suburbs, where the father also lived, to M, which is south of Sydney. This was the catalyst for an application by the father for parenting orders and injunctions, relevantly to restrain the mother from changing where the child lived to a place outside the Eastern Suburbs of Sydney. Following determination of an application by the father for interim orders, the parties presented proposed consent orders to the Federal Magistrates Court (now Federal Circuit Court). The proposed orders were approved on 5 March 2008. These are the orders which the mother applied to vary by her application filed on 21 December 2012 in the Federal Circuit Court. In his response to that application, filed on 30 January 2013, the father sought that the mother’s application be dismissed. His application was presented upon the basis that the mother failed to establish a significant change in circumstances sufficient to warrant reconsideration of the 5 March 2008 orders. Thus, on the application of the principles referred to in Rice & Asplund (1979) FLC 90-723, it was submitted to his Honour that the mother’s application should be dismissed. The mother resists the appeal and seeks to uphold the decision of the trial judge. The Full Court was satisfied that his Honour’s decision to allow the mother’s application to proceed was properly made and does not warrant appellate interference. The appeal will be dismissed. In the event the father was unsuccessful, the mother sought an order for costs. The father has been wholly unsuccessful and it is proper that an order for costs is made in favour of the mother. Within one (1) month of agreement or assessment as to quantum, the appellant father shall pay the costs of the respondent mother in relation to this appeal.

Orders