ROGERS & LENARD (No.2) - [2010] FMCAfam 830

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ROGERS & LENARD (No.2)

[2010] FMCAfam 830

FAMILY LAW – Children – parenting orders – Airport Watch List – whether children’s names should be removed from the Airport Watch List – whether the mother should be restrained from seeking medical treatment for the children from medical practitioners in Melbourne – whether an order should be made restraining the mother from going within ten metres of the father’s residence – where Local Court has previously refused to make a family violence order.

FAMILY LAW – Property.

Family Law Act 1975, s.114

Applicant:

MR ROGERS

Respondent:

MS LENARD

File Number:

SYC 1585 of 2010

Judgment of:

Scarlett FM

Hearing date:

28 July 2010

Date of Last Submission:

28 July 2010

Delivered at:

Sydney

Delivered on:

28 July 2010

REPRESENTATION

Solicitor for the Applicant:

Mr Sweeney

Solicitors for the Applicant:

Sweeney Tiggemann

Solicitor for the Respondent:

Ms Green

Solicitors for the Respondent:

Streeterlaw

UNTIL FURTHER ORDER

The application to remove the children’s names from the Airport Watch List is refused.
The application to restrain the Respondent Mother from seeking medical treatment for the children [X] born 2003 and [Y] born 2005 from medical practitioners in Melbourne is refused.
The application to restrain the Mother from going within ten (10) metres of the Father’s residence is refused.
The Respondent is to countersign a cheque for $1,000.00 at the ANZ Bank at [R] in the State of New Wales in favour of Aussie Home Loans on account of arrears of mortgage payments by 5:00pm on Friday 30 July 2010.
The Respondent is to countersign a cheque for $8,306.71 at the said ANZ Bank at [R] in favour of Members Equity Bank on account of outstanding mortgage payments within twenty four (24) hours of the Applicant Husband providing to the Respondent’s solicitors a written document evidencing that amount outstanding.

ORDERS

The parties are referred for a Conciliation Conference on 10 August 2010 at 9:30am with a Registrar.
The parties comply with Rule 24.04 by serving on each other copies of the documents listed in that rule no later than 14 days before the date of the conference.
The parties exchange market appraisals or valuations of any asset, the value of which is in dispute, by no later than ten (10) days before the date of the conference.
The solicitors for the parties forward to the Registrar a Conciliation conference Document no later than seven (7) days before the Conference.
The Application is adjourned to Thursday 5 August 2010 at 10:00am for further mention before Federal Magistrate Scarlett in Court 7A, level 7, Lionel Bowen Building, 99 Goulburn Street, Sydney NSW 2000.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT Sydney

SYC 1585 of 2010

MR ROGERS

Applicant

And

MS LENARD

Respondent

REASONS FOR JUDGMENT

There are three interim orders that are sought to be made today.…

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 ROGERS & LENARD (No.2)

Details

AGLC: ROGERS & LENARD (No.2) [2010] FMCAfam 830
Case: [2010] FMCAfam 830
Decision Date: 28 July 2010

CaseChat Overview and Summary

Rogers and Lenard (No.2) involved a dispute concerning parenting orders and property issues in the Family Court of Australia. The primary concern was whether the children’s names should be removed from the Airport Watch List, and if there should be restrictions on the mother seeking medical treatment for the children from practitioners in Melbourne, as well as an order to prevent the mother from approaching within ten metres of the father’s residence. These issues arose against a backdrop where the Local Court had previously declined to issue a family violence order.

The court had to navigate complex legal questions concerning the welfare and safety of the children, balancing the need for medical treatment and the potential risks associated with proximity to the father. The legal issues included the interpretation of the Airport Watch List, the implications of seeking medical treatment outside a certain area, and the appropriateness of imposing geographical restrictions on the mother. The court also needed to consider the previous decision of the Local Court and whether it should influence the current application.

In its reasoning, the court focused on the best interests of the children, taking into account the potential risks and benefits of the proposed restrictions. It concluded that certain measures could be implemented to ensure the safety and well-being of the children while allowing them access to necessary medical care. The court determined that the names of the children should remain on the Airport Watch List, but modifications could be made to facilitate medical treatment in Melbourne. Additionally, the court decided against imposing a geographical restriction on the mother, finding it unnecessary given the circumstances. The application was adjourned to allow for further proceedings, including a conciliation conference to explore settlement options.

The final orders mandated that the parties attend a conciliation conference, exchange relevant documents and valuations, and comply with procedural requirements before the next court appearance. The application was set for further mention, providing an opportunity for the parties to present additional evidence and arguments.

Orders

Orders of the court

The parties are referred for a Conciliation Conference on 10 August 2010 at 9:30am with a Registrar.

The parties comply with Rule 24.04 by serving on each other copies of the documents listed in that rule no later than 14 days before the date of the conference.

The parties exchange market appraisals or valuations of any asset, the value of which is in dispute, by no later than ten (10) days before the date of the conference.

The solicitors for the parties forward to the Registrar a Conciliation conference Document no later than seven (7) days before the Conference.

10.

The Application is adjourned to Thursday 5 August 2010 at 10:00am for further mention before Federal Magistrate Scarlett in Court 7A, level 7, Lionel Bowen Building, 99 Goulburn Street, Sydney NSW 2000.

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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