ANDERSON & TAYBOR - [2014] FamCA 23

FAMILY COURT OF AUSTRALIA

ANDERSON & TAYBOR

[2014] FamCA 23

FAMILY LAW – JURISDICTION – Threshold issue – Whether there are significant changes in the mother’s circumstances to warrant a fresh hearing – Consideration of and application of the rule derived from Rice & Asplund (1979) FLC 90-725 – Best interests of the child – Where the Applicant seeks to reverse the existing parenting Orders

FAMILY LAW – COSTS – Where the Applicant has been wholly unsuccessful – Conduct of the Applicant – Independent Children’s Lawyer seeks specific sum as to costs – Respondent seeks costs on indemnity basis

Family Law Act 1975 (Cth) ss 117(1), (2), (2A), (4)
Family Law Rules 2004 (Cth) rr 19.08(3), 19.18, 19.34(2)

Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225 Joyce & Fante [2013] FamCAFC 141 Kohan & Kohan (1993) FLC 92-340 Marsden & Winch [2009] FamCAFC 152 Miller & Harrington (2008) FLC 93-383 Penfold v Penfold (1980) 144 CLR 311 Prewett & Mann [2013] FamCAFC 130 Rice & Asplund (1979) FLC 90-725 Yunghanns & Ors & Yunghanns & Ors & Yunghanns (2000) FLC 93-029
APPLICANT:	Ms Anderson

RESPONDENT:	Mr Taybor
INDEPENDENT CHILDREN’S LAWYER:	Stanfords Solicitors

FILE NUMBER:

PAC

5282

2008

DATE DELIVERED:

24 January 2014

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Hannam J

HEARING DATE:

11 November 2013

REPRESENTATION

THE APPLICANT:

Self-represented Litigant

COUNSEL FOR THE RESPONDENT:

Mr Gersbach

SOLICITOR FOR THE RESPONDENT:

Matthews Folbigg Pty Ltd

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Ms Druitt
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Stanfords Solicitors

Orders

The mother’s Initiating Application filed 15 October 2010, in its entirety, is dismissed.
The mother is required to seek and obtain the leave of the Court to file any application in respect of the child E, born … February 2005 (“the child”), prior to the child attaining the age of eleven (11) years.
The mother is to pay the costs of the Independent Children’s Lawyer in the sum of $3,988 within two (2) months from the date of these Orders.
The mother is to pay the costs of the father, as have been incurred in these proceedings since 12 October 2012, on an indemnity basis, as agreed or as assessed by an Assessing Officer.
(a)In the event of an agreed amount, the mother is to pay such amount within six (6) months of the date of agreement.
(b)In the event of an assessed amount, the mother is to pay such amount within three (3) months of the date of assessment.
Otherwise, all outstanding applications and cross-applications are dismissed.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 5282 of 2008

Ms Anderson

Applicant

And

Mr Taybor

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

This application concerns E (“the child”), who is almost nine years old. The…

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 ANDERSON & TAYBOR

Details

AGLC: ANDERSON & TAYBOR [2014] FamCA 23
Case: [2014] FamCA 23
Decision Date: 24 January 2014

CaseChat Overview and Summary

In the matter of *Anderson & Taybor*, heard by Hannam J, the dispute concerned an application by the mother seeking to reverse existing parenting orders concerning the child E. The mother contended that there had been significant changes in her circumstances warranting a fresh hearing.

The primary legal issue before the court was whether the threshold established by the rule derived from *Rice & Asplund* (1979) FLC 90-725 had been met, thereby justifying a reconsideration of the existing parenting orders in light of the child's best interests. A secondary issue related to costs, with the Independent Children's Lawyer seeking a specific sum and the father seeking costs on an indemnity basis, given the applicant's lack of success.

Hannam J applied the principles from *Rice & Asplund*, which require a significant change in circumstances to justify a fresh hearing to vary existing parenting orders. The court found that the mother had failed to demonstrate such a significant change. Consequently, the mother's application was dismissed. The court also ordered that the mother required leave to file any further applications concerning the child before the age of eleven.

The mother was ordered to pay the costs of the Independent Children's Lawyer in the sum of $3,988 within two months. Furthermore, the mother was ordered to pay the father's costs incurred since 12 October 2012 on an indemnity basis, either as agreed or as assessed by an Assessing Officer, with specific timeframes for payment stipulated. All other outstanding applications were dismissed.

Orders

Orders of the court

The mother’s Initiating Application filed 15 October 2010, in its entirety, is dismissed.

The mother is required to seek and obtain the leave of the Court to file any application in respect of the child E, born … February 2005 (“the child”), prior to the child attaining the age of eleven (11) years.

The mother is to pay the costs of the Independent Children’s Lawyer in the sum of $3,988 within two (2) months from the date of these Orders.

The mother is to pay the costs of the father, as have been incurred in these proceedings since 12 October 2012, on an indemnity basis, as agreed or as assessed by an Assessing Officer.

(a) In the event of an agreed amount, the mother is to pay such amount within six (6) months of the date of agreement.

(b) In the event of an assessed amount, the mother is to pay such amount within three (3) months of the date of assessment.

Otherwise, all outstanding applications and cross-applications are dismissed.

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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