Stone and Stone - [2019] FamCA 860

FAMILY COURT OF AUSTRALIA

STONE & STONE

[2019] FamCA 860

FAMILY LAW – PRACTICE AND PROCEDURE – leave granted for the mother to institute further parenting proceedings.

Family Law Act 1975 (Cth)

Rice & Asplund (1979) FLC 90-725

APPLICANT:

Ms Stone

RESPONDENT:

Mr Stone

FILE NUMBER:

BRC

1645

2011

DATE DELIVERED:

1 November 2019

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Baumann J

HEARING DATE:

1 November 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Salvos Legal Humanitarian

THE RESPONDENT:

Self-represented

Orders

That the Applicant be granted leave to proceed with the Initiating Application filed 4 September 2019.
That the children, B born … 2005 and C born … 2006 be represented in these proceedings and it is requested that Legal Aid Queensland arrange such representation, and that the Independent Children’s Lawyer be at liberty to peruse and/or take copies of all documents filed in these proceedings and further, the Independent Children’s Lawyer be at liberty to issue any subpoena they deem relevant to these proceedings.
That the Respondent file and serve within twenty eight (28) days a Response to the Initiating Application (as amended by this Order) supported by Affidavit.
That these proceedings be adjourned for Case Management Hearing at 9.30am on 21 January 2020 in the Family Court of Australia at Brisbane.

IT IS NOTED:

A.That the Initiating Application filed by the Applicant on 4 September 2019 was orally amended such that paragraph five (5) of the final orders sought (attachment A) and paragraph six (6) of the interim or procedural orders sought (attachment B) should both read “father” instead of “mother”.
B.That Legal Aid Queensland is invited to appoint the same Independent Children’s Lawyer as was previously engaged with the matter, Ms Tracy-Lynne Geysen.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 1645 of 2011

Ms Stone

Applicant

And

Mr Stone

Respondent

EX TEMPORE REASONS FOR JUDGMENT

(Settled from the oral reasons delivered)

Introduction

In Reasons for Judgment published by me on 31 October 2018 (see Stone & Stone [2018] FamCA 876), I indicated why, at that stage, the Court dismissed the mother’s application to vary orders made by Forest J on 22 January 2015, applying the principles of Rice & Asplund (1979) FLC 90-725. My earlier Reasons set out the history to some degree of this matter. The Reasons of Forest J delivered 22 January 2015 included, as I mentioned in my earlier Reasons,…

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 Stone and Stone

Details

AGLC: Stone and Stone [2019] FamCA 860
Case: [2019] FamCA 860
Decision Date: 1 November 2019

CaseChat Overview and Summary

In the matter of *Stone and Stone*, heard before Baumann J of the Family Court of Australia, the applicant sought leave to proceed with an initiating application filed on 4 September 2019. The proceedings concerned the children, B and C, born in 2005 and 2006 respectively.

The court was required to determine whether to grant the applicant leave to proceed with the initiating application. Further, the court needed to make orders regarding the representation of the children and the respondent's obligation to file and serve a response.

Baumann J granted the applicant leave to proceed with the initiating application. The court ordered that the children, B and C, be represented in the proceedings, requesting Legal Aid Queensland to arrange such representation. An Independent Children’s Lawyer was granted liberty to peruse and copy all filed documents and to issue any relevant subpoenas. The respondent was ordered to file and serve a response to the initiating application, supported by an affidavit, within twenty-eight days. The proceedings were adjourned for a Case Management Hearing on 21 January 2020.

Orders

Orders of the court

That the Applicant be granted leave to proceed with the Initiating Application filed 4 September 2019.

That the children, B born … 2005 and C born … 2006 be represented in these proceedings and it is requested that Legal Aid Queensland arrange such representation, and that the Independent Children’s Lawyer be at liberty to peruse and/or take copies of all documents filed in these proceedings and further, the Independent Children’s Lawyer be at liberty to issue any subpoena they deem relevant to these proceedings.

That the Respondent file and serve within twenty eight (28) days a Response to the Initiating Application (as amended by this Order) supported by Affidavit.

That these proceedings be adjourned for Case Management Hearing at 9.30am on 21 January 2020 in the Family Court of Australia at Brisbane.

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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