Swenson and Brantley - [2019] FCCA 2438

FEDERAL CIRCUIT COURT OF AUSTRALIA

SWENSON & BRANTLEY

[2019] FCCA 2438

Catchwords:
FAMILY LAW – Parenting – final parenting orders made in 2015 – consideration of the ‘rule’ in Rice v Asplund – consideration of ‘best interests principle’ – application dismissed.

Cases cited:
Cameron & Brook [2018] FamCAFC 175
Carriel & Lendrum (2015) FLC 93-640
In the marriage of Rice & Asplund (1979) FLC 90-725
Marsden & Winch [2009] FamCAFC 152
Searson & Searson [2017] FamCAFC 119
SPS & PLS [2008] FamCAFC 16

Applicant:

MS SWENSON

Respondent:

MR BRANTLEY

File Number:

DGC 2935 of 2018

Judgment of:

Judge Mercuri

Hearing date:

29 April 2019

Date of last submission:

29 April 2019

Delivered at:

Melbourne

Delivered on:

2 September 2019

REPRESENTATION

Counsel for the applicant:

Mr Kanarev

Solicitors for the applicant:

Pentana Stanton

Counsel for the respondent:

Ms Vohra SC

Solicitors for the respondent:

Emera Smith

ORDERS

The mother’s amended initiating application filed 28 February 2019 be dismissed.
Pursuant to section 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

AND THE COURT NOTES THAT:

(A)Pursuant to section 62B of the Family Law Act 1975, information about courses, programs and services to help with adjusting to the consequences of those orders are set out in Attachment A.
(B)Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the court.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 2935 of 2018

MS SWENSON

Applicant

And

MR BRANTLEY

Respondent

REASONS FOR JUDGMENT

Introduction

The mother filed an initiating application for parenting orders in respect of the child of the relationship, X born … 2010 (“X”) on 27 August 2018.
On 5 November 2018, her Honour Judge Small dismissed paragraph 4, 5 and 6 of the mother’s application filed 27 August 2018. The mother then filed an amended initiating application on 28 February 2019 in which she again sought parenting orders in respect of X (“the amended application”).
The father opposed the mother’s amended application and argued that the principles in Rice v Asplund[1] apply and the amended application ought to be dismissed.
[1] In the marriage of Rice & Asplund (1979) FLC 90-725.
The matter was listed for a preliminary hearing on the Rice v Asplund point before the court on 29 April 2019.

Background

Although the present proceedings were issued in August 2018, these parties have been involved in litigation before this court since X’s birth…

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 Swenson and Brantley

Details

AGLC: Swenson and Brantley [2019] FCCA 2438
Case: [2019] FCCA 2438
Decision Date: 2 September 2019

CaseChat Overview and Summary

In the matter of Swenson and Brantley, heard by Judge Mercuri, the mother's amended initiating application filed on 28 February 2019 was dismissed. The proceedings concerned family law matters, with the court issuing orders pursuant to section 65DA(2) of the *Family Law Act 1975* which detailed the obligations created by the orders and the potential consequences of contravention.

The court was required to determine the mother's application, the nature of which is not specified beyond its dismissal. The orders themselves, however, indicate a focus on the obligations and potential contraventions arising from the court's decision, as well as the provision of information regarding support services for those affected by the orders, as contemplated by section 62B of the *Family Law Act 1975*.

The reasoning behind the dismissal of the mother's application is not detailed in the provided text. However, the court's orders clearly indicate that the legal framework of the *Family Law Act 1975* was applied, particularly in relation to the enforcement and consequences of court orders and the provision of relevant support information. The court also issued a standard note regarding the prohibition on publishing identifying details of family law proceedings under section 121 of the Act.

Orders

Orders of the court

The mother’s amended initiating application filed 28 February 2019 be dismissed.

Pursuant to section 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

AND THE COURT NOTES THAT:

(A) Pursuant to section 62B of the Family Law Act 1975, information about courses, programs and services to help with adjusting to the consequences of those orders are set out in Attachment A.

(B) Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the court.

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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