S and C - [2003] FMCAfam 417

FEDERAL MAGISTRATES COURT OF AUSTRALIA

S & C

[2003] FMCAfam 417

FAMILY LAW – Children – contact – change of circumstances – whether test in Rice & Asplund (1978) 6 Fam LR 570; (1979) FLC 90-215 met – family violence allegations – separate representation

PRACTICE AND PROCEDURE – Whether proceedings should be transferred back to the Family Court

Applicant:

R J S

Respondent:

J L C

File No:

PAM 3354 of 2003

Delivered on:

11 September 2003

Delivered at:

Parramatta

Hearing date:

8 September 2003

Judgment of:

Scarlett FM

REPRESENTATION

Counsel for the Applicant:

Ms Clifford

Solicitors for the Applicant:

Barkus Edwards Doolan

Solicitors for the Respondent:

Ms Vincent
Watts McCray

ORDERS

Pursuant to section 68L of the Family Law Act the children of the marriage B J C born 9 May 1995 and N R C born 25 March 1997 are to be separately represented AND the Legal Aid Commission of New South Wales is requested to arrange such representation.
The proceedings are transferred to the Family Court of Australia at Parramatta AND it is requested that the proceedings be listed before a Deputy Registrar of the Family Court at 9.45 am on Thursday 2 October 2003 for directions.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMTTA

PAM 3354 of 2003

R J S

Applicant

And

J L C

Respondent

REASONS FOR JUDGMENT

Application

The application before the Court is an application by the mother of two little boys, B J C who was born on 9 May 1995 and is therefore aged 8; and N R C, who was born on 25 March 1997 and is therefore aged 6. Her application is to vary the terms of contact orders made by Stevenson J in the Family Court on 2 May this year. The orders were made after a defended hearing and the evidence as I understand it was heard during the month of January. The thrust of this application is that the orders made by her Honour concerning the father's contact with the children or children's residence with the father be varied so as to reduce the amount of time that the children spend with their father on alternate weekends. The orders also provide for a change as far as arrangements for contact handover are concerned.
The father opposes these orders. When the matter came before the Court on Monday, his solicitor, Ms Vincent, made applications first to the effect that the proceedings should be transferred back to the Family Court where the earlier proceedings had been heard. And also, that the application should be dismissed in that what is known as the test in Rice v Asplund (1978) 6 FamLR 570, 1979 FLC 90-215 had not been met.
The principles that are described as the test in Rice v Asplund form a particular class of law which is perhaps a sub-class of the principles that apply to summary dismissal of applications. There are of course principles relating to summary dismissal of applications and Ms Clifford of counsel who…

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 S and C

Details

AGLC: S and C [2003] FMCAfam 417
Case: [2003] FMCAfam 417
Decision Date: 11 September 2003

CaseChat Overview and Summary

In the case of S and C, the matter was heard in the Federal Circuit Court of Australia. The dispute involved the allocation of parental responsibilities and the representation of the children, B J C born 9 May 1995 and N R C born 25 March 1997, in family law proceedings. The primary legal issues before the court were the appropriate representation of the children and the transfer of the proceedings to a more suitable forum.

The court was required to determine whether the children should be separately represented in the proceedings and, if so, to request the Legal Aid Commission of New South Wales to arrange such representation. Additionally, the court needed to decide on the transfer of the proceedings to the Family Court of Australia at Parramatta and to request a specific listing date for directions.

In reaching its decision, the court considered the provisions of section 68L of the Family Law Act, which mandates that children of a marriage should be separately represented in family law proceedings. The court found that the children should indeed be separately represented and ordered the Legal Aid Commission of New South Wales to arrange such representation. Furthermore, the court determined that the proceedings should be transferred to the Family Court of Australia at Parramatta to ensure an appropriate forum for the matter. The court also requested that the proceedings be listed before a Deputy Registrar of the Family Court at 9.45 am on Thursday 2 October 2003 for directions.

The court's orders included the separate representation of the children and the transfer of the proceedings to the Family Court of Australia at Parramatta, with a specific listing date for directions.

Orders

Orders of the court

Pursuant to section 68L of the Family Law Act the children of the marriage B J C born 9 May 1995 and N R C born 25 March 1997 are to be separately represented AND the Legal Aid Commission of New South Wales is requested to arrange such representation.

The proceedings are transferred to the Family Court of Australia at Parramatta AND it is requested that the proceedings be listed before a Deputy Registrar of the Family Court at 9.45 am on Thursday 2 October 2003 for directions.

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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