VIERA & VIERA - [2019] FCCA 1898

FEDERAL CIRCUIT COURT OF AUSTRALIA

VIERA & VIERA

[2019] FCCA 1898

Catchwords:
FAMILY LAW – Proceedings transferred to the Family Court of Australia – order made.

Legislation:
Family Law Act 1975 (Cth), ss.75, 79
Federal Circuit Court of Australia Act 1999 (Cth), s.39
Federal Circuit Court Rules 2001 (Cth), r.8.02

Cases cited:
Morris & Rosetti [2017] FamCA 249
Re W: Publication Application (1997) 137 FLR 205

Applicant:

MR VIERA

Respondent:

MS VIERA

File Number:

PAC 2148 of 2019

Judgment of:

Judge Newbrun

Hearing date:

1 July 2019

Date of Last Submission:

1 July 2019

Delivered at:

Parramatta

Delivered on:

12 July 2019

REPRESENTATION

Solicitors for the Applicant:

Ms Rivers

Solicitors for the Respondent:

Ms Kyle

ORDERS

By consent and pursuant to Division 13.2 of the Federal Circuit Court Rules, interim orders, declarations and notations are made in accordance with the Consent Orders marked Exhibit A and attached hereto.
Solicitor for the Applicant to prepare a typescript of Exhibit A within 14 days.
Within 28 days the Respondent mother shall file and serve her Response, Affidavit, any Notice of Risk and Financial Statement.
Within a further 28 days the Applicant father shall file and serve a reply (addressing, in particular, any proposed property settlement orders sought by the Respondent mother in her response).
These parenting proceedings (which will shortly include property proceedings) are forthwith transferred to the Family Court of Australia at Parramatta at 17 September 2019 at 9:30am.
Grant to the parties photocopy access to subpoena material produced by NSW Police and the Department of Family and Community Services. Such photocopied documents are to remain, pending further Order, in the sole custody of the parties’ respective solicitors.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 2148 of 2019

MR VIERA

Applicant

And

MS VIERA

Respondent

REASONS FOR JUDGMENT

The within Reasons for Judgment relate to this Court’s Order of 1 July 2019 that these parenting proceedings be transferred to the Family Court of Australia at Parramatta.
The subject children are 2 children; a boy aged 15 years and another boy aged 10 years. There is another child, Ms B, who turned 18 years in … 2019. The father is aged 46 years. The mother is aged 42 years. The parties commenced their relationship in 1994 with final separation being in January 2019.
On 1 July 2019, by consent, without admissions and pending further orders, interim parenting orders were made that the children live with the father and spend time with the mother every alternative Saturday and Sunday from 9am to 5pm.
The proceedings are presently only parenting proceedings that will shortly become both parenting proceedings and property proceedings (the Court made directions on 1 July 2019 that the Respondent mother file and serve her Response, both in relation to the parenting proceedings and her intended property proceedings).
Information was provided by the parties to…

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 VIERA & VIERA

Details

AGLC: Viera and Viera [2019] FCCA 1898
Case: [2019] FCCA 1898
Decision Date: 12 July 2019

CaseChat Overview and Summary

In the matter of VIERA & VIERA, the Federal Circuit Court of Australia made orders concerning proceedings transferred to it. The dispute involved parenting and, prospectively, property matters between the applicant father and the respondent mother.

The court was required to determine the terms of interim orders and the procedural steps for the progression of the parenting and property proceedings. It also needed to address the transfer of the proceedings to the Family Court of Australia and the handling of subpoenaed material.

By consent of the parties, the court made interim orders and declarations in accordance with a marked Exhibit A. The court then set out a timetable for the filing and service of further documents by both the respondent mother and the applicant father, including affidavits and financial statements. Crucially, the court ordered that the parenting proceedings, which were to be joined by property proceedings, be forthwith transferred to the Family Court of Australia at Parramatta. The court also granted the parties' solicitors access to photocopy subpoenaed material from the NSW Police and the Department of Family and Community Services, with the documents to remain in the solicitors' custody pending further order.

Orders

Orders of the court

By consent and pursuant to Division 13.2 of the Federal Circuit Court Rules, interim orders, declarations and notations are made in accordance with the Consent Orders marked Exhibit A and attached hereto.

Solicitor for the Applicant to prepare a typescript of Exhibit A within 14 days.

Within 28 days the Respondent mother shall file and serve her Response, Affidavit, any Notice of Risk and Financial Statement.

Within a further 28 days the Applicant father shall file and serve a reply (addressing, in particular, any proposed property settlement orders sought by the Respondent mother in her response).

These parenting proceedings (which will shortly include property proceedings) are forthwith transferred to the Family Court of Australia at Parramatta at 17 September 2019 at 9:30am.

Grant to the parties photocopy access to subpoena material produced by NSW Police and the Department of Family and Community Services. Such photocopied documents are to remain, pending further Order, in the sole custody of the parties’ respective solicitors.

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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