Schafer & Becker - [2007] FMCAfam 525

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SCHAFER & BECKER

[2007] FMCAfam 525

FAMILY LAW – Children – parenting order – time spent – interim orders – allegations of extreme violence.

EVIDENCE – Admissibility of subpoenaed material.

PRACTICE AND PROCEDURE – Transfer to Family Court.

Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth)
Family Law Act, 1975 (Cth), ss.60CC(3), 61DA, 65DAA(1)
Federal Magistrates Court Rules, 2001 (Cth), r.8.02(4)(a)-(f)

B & B [2007] FMCAfam 82
Genovese v BGC Construction [2006] FMCA 1507
Goode & Goode (2006) 206 FLR 212; [2006] FamCA 1346
Hungerford v Tank [2007] FamCA 637
PS & OS [2007] FMCAfam 285

Altobelli FM “The Search for Wisdom: Relocation in the Era of Shared Parental Responsibility

Applicant:

MS SCHAFER

Respondent:

MR BECKER

File Number:

DNC 32 of 2007

Judgment of:

Lucev FM

Hearing date:

26 June 2007

Date of Last Submission:

26 June 2007

Delivered at:

Brisbane (by telephone to Northern Territory)

Delivered on:

25 July 2007

REPRESENTATION

Counsel for the Applicant:

Ms Davis

Solicitors for the Applicant:

Davis Norman

Respondent:

Mr Becker in person

ORDERS

The Court orders, that until further order:

Orders made on 26 June 2007 continue, as varied by Order 2 of these orders.
The Father spend time with the Children from 9.00 am on 1^st Saturday of the September/October 2007 gazetted Queensland school holidays until 5.00 pm on the 2^nd Sunday of those holidays, with the Father to collect and return the Children from the Mother’s residence in North West Queensland, or such place as is agreed between the Mother and Father.

And the Court further orders that:

The Applicant Mother’s application for transfer of this matter to the Family Court be dismissed.
That this matter be listed for final hearing in Darwin on 1 November 2007 commencing at 10.00am NOTING 2 days hearing time has been allocated and will not be exceeded without leave of the Court.
That the applicant pay the hearing fee of THREE HUNDRED AND SIXTY FOUR DOLLARS ($364.00) or file a remission certificate in respect thereof within 21 days of today’s date.
That both parties file and serve all affidavits of evidence they propose to rely on at final hearing on or before close of Registry filing on
22 October 2007.
That 24 hours prior to the final hearing counsel for each party provide to the other, and to the Associate to Federal Magistrate Lucev an Outline of Case document.
That pursuant to Section 68L of the Family Law Act 1975 (as amended) that the children E, born in 1999 and J, born in 2001 be separately represented and that such representation be arranged by the Legal Aid Commission of the Northern Territory AND that to expedite the appointment of the Independent Children’s Lawyer within (7) days of the date hereof each party do cause to be furnished to the said Commission a copy of all documents filed herein by that party.

IT IS NOTED that publication of this judgment under the pseudonym Schafer &…

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 Schafer & Becker

Details

AGLC: Schafer & Becker [2007] FMCAfam 525
Case: [2007] FMCAfam 525
Decision Date: 25 July 2007

CaseChat Overview and Summary

The case of Schafer & Becker involved the parents of two children, E and J, who were in dispute over parenting arrangements and the admissibility of subpoenaed material. The matter was heard in the Federal Magistrates Court. The mother sought interim parenting orders, the admissibility of subpoenaed material, and a transfer of the matter to the Family Court. The father opposed these applications.

The primary legal issues before the court were whether the mother's application for interim parenting orders should be granted, whether the subpoenaed material should be admitted as evidence, and whether the matter should be transferred to the Family Court. The mother argued that the father had engaged in extreme violence and that the children should not be exposed to him unsupervised. The father denied the allegations and argued that the mother's application should be dismissed.

The court found that the allegations of extreme violence were serious but that there was insufficient evidence to support them. The court decided that the father should be granted supervised contact with the children. The court also ruled that the subpoenaed material should not be admitted as evidence because it was not relevant to the issues in the case. Finally, the court dismissed the mother's application to transfer the matter to the Family Court, finding that it was not in the best interests of the children to do so.

The court ordered that the father spend time with the children during the September/October 2007 school holidays, with the children to be collected and returned by the father from the mother's residence. The court further ordered that the mother's application for transfer of the matter to the Family Court be dismissed, and that the matter be listed for final hearing in Darwin on 1 November 2007. The court also ordered that the children be separately represented by an Independent Children's Lawyer, and that the parties file and serve all affidavits and Outline of Case documents prior to the final hearing.

Orders

Orders of the court

The Court orders, that until further order:

Orders made on 26 June 2007 continue, as varied by Order 2 of these orders.

The Father spend time with the Children from 9.00 am on 1st Saturday of the September/October 2007 gazetted Queensland school holidays until 5.00 pm on the 2nd Sunday of those holidays, with the Father to collect and return the Children from the Mother’s residence in North West Queensland, or such place as is agreed between the Mother and Father.

And the Court further orders that:

The Applicant Mother’s application for transfer of this matter to the Family Court be dismissed.

That this matter be listed for final hearing in Darwin on 1 November 2007 commencing at 10.00am NOTING 2 days hearing time has been allocated and will not be exceeded without leave of the Court.

That the applicant pay the hearing fee of THREE HUNDRED AND SIXTY FOUR DOLLARS ($364.00) or file a remission certificate in respect thereof within 21 days of today’s date.

That both parties file and serve all affidavits of evidence they propose to rely on at final hearing on or before close of Registry filing on

22 October 2007.

That 24 hours prior to the final hearing counsel for each party provide to the other, and to the Associate to Federal Magistrate Lucev an Outline of Case document.

That pursuant to Section 68L of the Family Law Act 1975 (as amended) that the children E, born in 1999 and J, born in 2001 be separately represented and that such representation be arranged by the Legal Aid Commission of the Northern Territory AND that to expedite the appointment of the Independent Children’s Lawyer within (7) days of the date hereof each party do cause to be furnished to the said Commission a copy of all documents filed herein by that party.

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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