Albert & Plowman - [2022] FedCFamC1F 243

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Albert & Plowman [2022] FedCFamC1F 243

File number(s): SYC 5837 of 2013

Judgment of: AUSTIN J

Date of judgment: 13 April 2022

Catchwords:
FAMILY LAW – CHILDREN – Rice v Asplund – Where final parenting orders were previously made which provided for the father to have sole parental responsibility, for the child to live with him and to spend substantial time with the mother – Where the mother now seeks to expand the time the child spends with her, extend the duration of telephone communication and alter orders regulating the manner in which she can obtain information about the child’s medical and educational progress – Where the father seeks dismissal of the mother’s application – Where the mother could not identify any material change in circumstances to support her application – Where the mother has not satisfied the criteria imposed by Rice v Asplund – Application dismissed.

FAMILY LAW – PRACTICE AND PROCEDURE – Subpoena – Where the mother issued a subpoena to the child’s treating psychologist – Where the material was produced but the psychologist filed a Notice of Objection – Where the Notice of Objection was not listed for determination in conjunction with the threshold hearing – Where the mother made an oral application for the Notice of Objection to be listed and determined before the commencement of the threshold hearing – Where the subpoena was issued belatedly – Where the mother failed to demonstrate any legitimate forensic purpose in the subpoena – Oral application dismissed.

FAMILY LAW – COSTS – Where the mother’s application to vary the existing parenting orders was wholly unsuccessful – Mother to pay the father’s costs on a party/party sum – Costs ordered in a fixed sum.

Legislation:
Family Law Act 1975 (Cth) Pt VII

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 12.13, 12.17

Cases cited:
Albert & Plowman (No.2) [2018] FCCA 3579

Alister v The Queen (1984) 154 CLR 404

Northern Territory v Sangare (2019) 265 CLR 164

Rice v Asplund (1979) FLC 90-725

Searson & Searson (2017) FLC 93-788

SPS & PLS (2008) FLC 93-363

Walden & Cooper [2020] FamCA 104

Division: Division 1 First Instance

Number of paragraphs: 51

Date of hearing: 6 April 2022

Place: Newcastle (via video link)

Solicitor for the Applicant: Shiels Legal

Counsel for the Respondent: Ms Cantrall

Solicitor for the Respondent: Croydon Legal & Conveyancing
ORDERS

SYC 5837 of 2013

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS ALBERT

Applicant

AND:
MR PLOWMAN

Respondent

ORDER MADE BY:

AUSTIN J

DATE OF ORDER:

13 APRIL 2022

THE COURT ORDERS THAT:
1.The Amended Initiating Application filed on 10 January 2022 is dismissed.
2.The Further Amended Response filed on 24 January 2022 is dismissed.
3.Any and all other outstanding applications under Part VII of the Family Law Act 1975 (Cth) are dismissed.
4.The applicant shall pay the respondent’s party/party costs of and incidental to the proceedings, fixed in the sum…

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 Albert & Plowman

Details

AGLC: Albert & Plowman [2022] FedCFamC1F 243
Case: [2022] FedCFamC1F 243
Decision Date: 13 April 2022

CaseChat Overview and Summary

Ms Albert and Mr Plowman were before the Federal Circuit and Family Court of Australia in relation to the parenting of their child. The existing parenting orders provided for Mr Plowman to have sole parental responsibility, for the child to live with him, and for the child to spend substantial time with Ms Albert. Ms Albert sought to expand the time the child spends with her, extend the duration of telephone communication and alter orders regulating the manner in which she can obtain information about the child’s medical and educational progress. Mr Plowman sought dismissal of the mother’s application. The court had to decide whether there had been a material change in circumstances warranting a revision of the existing parenting orders, whether the subpoena issued by the mother was justified, and whether costs should be awarded to either party.

The court found that Ms Albert could not identify any material change in circumstances to support her application. The court also found that Ms Albert had not satisfied the criteria imposed by Rice v Asplund. The court dismissed the mother’s application to vary the existing parenting orders. The court found that the mother had failed to demonstrate any legitimate forensic purpose in the subpoena issued to the child’s treating psychologist and dismissed the oral application for the Notice of Objection to be listed and determined before the commencement of the threshold hearing. The court found that the mother’s application to vary the existing parenting orders was wholly unsuccessful and ordered that Ms Albert pay Mr Plowman’s party/party costs of and incidental to the proceedings, fixed in the sum of $10,000.

The court dismissed the amended initiating application, the further amended response, and any and all other outstanding applications under Part VII of the Family Law Act 1975 (Cth). The form of the order is subject to the entry in the Court’s records. The copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors or to record a variation to the order.

Orders

Orders of the court

SYC 5837 of 2013

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS ALBERT

Applicant

AND:

MR PLOWMAN

Respondent

ORDER MADE BY:

AUSTIN J

DATE OF ORDER:

13 APRIL 2022

THE COURT ORDERS THAT:

1. The Amended Initiating Application filed on 10 January 2022 is dismissed.

2. The Further Amended Response filed on 24 January 2022 is dismissed.

3. Any and all other outstanding applications under Part VII of the Family Law Act 1975 (Cth) are dismissed.

4. The applicant shall pay the respondent’s party/party costs of and incidental to the proceedings, fixed in the sum of $10,000.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Subject to the outcome being as they respectively propose, both parties sought an indemnity costs order against the other.The evidence The mother relied upon:(a)her two affidavits filed on 11 January 2022 and 5 April 2022 (including annexures); and(b)the affidavits of the maternal grandparents filed on 11 January 2022. The mother also initially sought to rely upon the report of the single expert dated 29 September 2018, but sensibly resiled from that position. The expert report was adduced in evidence at the last trial in October 2018, but the overall evidence of the single expert comprised that within his report together with the oral evidence he gave in cross-examination at trial. The parts of the evidence given by the single expert upon which the trial judge relied is evident from the reasons for judgment delivered in December 2018 (Albert & Plowman (No.2) [2018] FCCA 3579). It would not be appropriate for the mother to rely, in these proceedings, upon any portion of the single expert’s evidence not expressly adopted by the trial judge as the premise for the December 2018 orders. She conceded that to be so. The father relied upon his affidavit filed on 28 March 2022. Neither party was cross-examined. There were no exhibits.Legal principles In Walden & Cooper [2020] FamCA 104, I set out the relevant legal principles in this way:9.The infinite vicissitudes of life mean no parenting order can ever be truly immutable, which reality is recognised in the Act (s 65D(2)). However, it is well established that no parenting orders, intended to be final, will be revised unless an applicant seeking to vary the orders can demonstrate a material change of circumstance to warrant the revision (Rice & Asplund (1979) FLC 90-725 at 78,905 (“Rice & Asplund”); SPS & PLS (2008) FLC 93-363 at [1] (“SPS & PLS”); Marsden v Winch (2009) 42 Fam LR 1 at [48] (“Marsden v Winch”); Langmeil & Grange [2013] FamCAFC 31 at [43]-[48]; Poisat & Poisat (2014) FLC 93-597 (“Poisat & Poisat”)).10.The question of whether there has been a change in circumstances of sufficient magnitude to warrant revision of existing orders may be determined either by way of preliminary enquiry or comprehensive hearing (Poisat & Poisat at [39]-[41]; Marsden v Winch at [46]-[47]; Miller & Harrington (2008) FLC 93-383 at [80]-[83] (“Miller & Harrington”)) but, at whichever stage the determination is made, the application of the Rice & Asplund guideline is merely a manifestation of the paramountcy principle (Poisat & Poisat at [18], [19], [40], [42]; Marsden v Winch at [55]; Miller & Harrington at [101]) and procedural fairness should always be observed (Marsden v Winch at [56]).11.In order to determine the existence and materiality of the asserted change in circumstances, consideration should be given to (Marsden v Winch at [50]):(a)the past circumstances, including the reasons for the original decision and the evidence upon which it was based; (b)whether there is a likelihood of the orders being varied in a significant way as a result of a new hearing; and(c)if there is such a likelihood, whether the asserted need for variation of the orders outweighs the potential detriment to the child or children which the fresh litigation will cause.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	SYC 5837 of 2013
Judgment of:	AUSTIN J
Date of judgment:	13 April 2022
Catchwords:	FAMILY LAW – CHILDREN – Rice v Asplund – Where final parenting orders were previously made which provided for the father to have sole parental responsibility, for the child to live with him and to spend substantial time with the mother – Where the mother now seeks to expand the time the child spends with her, extend the duration of telephone communication and alter orders regulating the manner in which she can obtain information about the child’s medical and educational progress – Where the father seeks dismissal of the mother’s application – Where the mother could not identify any material change in circumstances to support her application – Where the mother has not satisfied the criteria imposed by Rice v Asplund – Application dismissed. FAMILY LAW – PRACTICE AND PROCEDURE – Subpoena – Where the mother issued a subpoena to the child’s treating psychologist – Where the material was produced but the psychologist filed a Notice of Objection – Where the Notice of Objection was not listed for determination in conjunction with the threshold hearing – Where the mother made an oral application for the Notice of Objection to be listed and determined before the commencement of the threshold hearing – Where the subpoena was issued belatedly – Where the mother failed to demonstrate any legitimate forensic purpose in the subpoena – Oral application dismissed. FAMILY LAW – COSTS – Where the mother’s application to vary the existing parenting orders was wholly unsuccessful – Mother to pay the father’s costs on a party/party sum – Costs ordered in a fixed sum.
Legislation:	Family Law Act 1975 (Cth) Pt VII Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 12.13, 12.17
Cases cited:	Albert & Plowman (No.2) [2018] FCCA 3579 Alister v The Queen (1984) 154 CLR 404 Northern Territory v Sangare (2019) 265 CLR 164 Rice v Asplund (1979) FLC 90-725 Searson & Searson (2017) FLC 93-788 SPS & PLS (2008) FLC 93-363 Walden & Cooper [2020] FamCA 104
Division:	Division 1 First Instance
Number of paragraphs:	51
Date of hearing:	6 April 2022
Place:	Newcastle (via video link)
Solicitor for the Applicant:	Shiels Legal
Counsel for the Respondent:	Ms Cantrall
Solicitor for the Respondent:	Croydon Legal & Conveyancing

SYC 5837 of 2013
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS ALBERT Applicant
AND:	MR PLOWMAN Respondent

ORDER MADE BY:	AUSTIN J
DATE OF ORDER:	13 APRIL 2022