Legal Research
Cases
Arena & Arena (No 4)

Arena & Arena (No 4)

Case [2024] FedCFamC1F 22 31 January 2024

Type to search within this case.

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Arena & Arena (No 4) [2024] FedCFamC1F 22

File number(s): WOC 1226 of 2019

Judgment of: CURRAN J

Date of judgment: 31 January 2024

Catchwords: FAMILY LAW – PARENTING – Application in a Proceeding – Parental Responsibility – Where father seeks an order for equal shared parental responsibility to be reinstated – Where father seeks orders for a pet to travel with the children for his time with them – Where final property orders previously made by consent for the pet to travel with the children – Where mother seeks Applications to be dismissed – Where sole parental responsibility ordered on final basis by consent previously – Application of Rice and Asplund – Jurisdiction to make orders regarding a pet in parenting proceedings – Determined no significant change in circumstances – Determined no jurisdiction to make orders regarding a pet in parenting proceedings – Application dismissed

Legislation: Family Law Act 1975 (Cth) ss 60CA, 69ZL

Cases cited:
Arena & Arena(No 3) [2023] FedCFamC1F 1129

Defrey & Radnor [2021] FamCAFC 67

Grunseth & Wighton (2022) FLC 94-099; [2022] FedCFamC1A 132

Rice and Asplund (1979) FLC 90-725; [1978] FamCA 84

Division: Division 1 First Instance

Number of paragraphs: 64

Date of last submission/s: 13 December 2023

Date of hearing: 21 November 2023

Place: Sydney

Counsel for the Applicant: Mr Cataldi (later withdrew)

Solicitor for the Applicant: John Stonham & Co (later withdrew)

The Applicant: Litigant in Person

Counsel for the Respondent: Mr Lawrence

Solicitor for the Respondent: Maguire & Mcinerney Lawyers

Solicitor Advocate for the Independent Children’s Lawyer: Ms Dodson

Solicitor for the Independent Children’s Lawyer: Legal Aid NSW
ORDERS

WOC 1226 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR ARENA

Applicant

AND:
MS ARENA

Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

CURRAN J

DATE OF ORDER:

31 JANUARY 2024

THE COURT ORDERS THAT:
1.Orders 2 and 4 of the Application in a Proceeding filed by the father on 1 November 2023 be dismissed.

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.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Arena & Arena has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CURRAN J:

These reasons for judgment were delivered orally and have been corrected from the transcript.
Consistent with the provisions of s…

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 Arena & Arena (No 4)

Details

AGLC: Arena & Arena (No 4) [2024] FedCFamC1F 22
Case: [2024] FedCFamC1F 22
Decision Date: 31 January 2024

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, the matter of Arena & Arena (No 4) involved Mr Arena, the father, and Ms Arena, the mother. The father sought orders for equal shared parental responsibility to be reinstated, as well as orders for a pet to travel with the children during his time with them. These applications came after previous consent orders allowed the pet to travel with the children. The mother opposed these applications and sought their dismissal. Additionally, the father's applications sought to challenge the sole parental responsibility previously ordered by consent. The court was required to determine whether there had been a significant change in circumstances warranting a change in the existing orders and whether it had jurisdiction to make orders regarding the pet.

The court examined the applications through the lens of Rice v Asplundh, where it was established that the court can make orders concerning pets in parenting proceedings. However, in this case, the court found no significant change in circumstances to warrant a departure from the existing orders. Furthermore, the court held that it did not have jurisdiction to make orders concerning the pet as the pet was not a child. Consequently, the court dismissed the father’s applications for equal shared parental responsibility and the orders concerning the pet. The court's decision was based on the lack of a significant change in circumstances and the absence of jurisdiction to make orders regarding the pet.

In light of the court's findings, orders were made dismissing the father's applications. Specifically, orders 2 and 4 of the Application in a Proceeding filed by Mr Arena on 1 November 2023 were dismissed. The form of these orders is subject to the entry in the Court’s records, with any minor typographical or grammatical errors subject to review under the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). The decision underscored the importance of significant changes in circumstances and jurisdictional boundaries in making parenting orders concerning pets.

Orders

Orders of the court

WOC 1226 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR ARENA

Applicant

AND:

MS ARENA

Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

CURRAN J

DATE OF ORDER:

31 JANUARY 2024

THE COURT ORDERS THAT:

1. Orders 2 and 4 of the Application in a Proceeding filed by the father on 1 November 2023 be dismissed.

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

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Arena & Arena (No 4) [2024] FedCFamC1F 22

Most Recent Citation

Arena & Arena (No 6) [2024] FedCFamC1F 364

Cases citing this decision · 1 of 1 shown

Arena & Arena (No 6)
[2024] FedCFamC1F 364 Para 28

…In accordance with my interim decision in Arena & Arena (No 4) [2024] FedCFamC1F 22, there is no jurisdiction to make the orders sought by the father. Communication…

View all 1 citing cases →

Cases cited in this decision · 10 of 10 shown

Arena & Arena (No 3)
[2023] FedCFamC1F 1129 Para 10

…in respect of the other interim issues in respect of the children. Therefore, this judgment supplements the previous judgment of Arena & Arena (No 3) [2023] FedCFamC1F 1129, determining the remainder of the issues in the father’s Application in a Proceeding filed 1 November 2023. I will not seek to repeat the facts, but…
Grunseth & Wighton
[2022] FedCFamC1A 132 Para 46

…The Full Court at [63] in Grunseth & Wighton (2022) FLC 94-099; [2022] FedCFamC1A 132 (“ Grunseth & Wighton ”) stated that: As much as it will pain pet lovers, animals are property and are to be treated as such. Questions of attachment are not relevant and the Court is not, in effect, to undertake a parenting case in re…
Defrey & Radnor
[2021] FamCAFC 67 Para 25

…The Full Court in Defrey & Radnor [2021] FamCAFC 67 summarised the law concerning Rice and Asplund as follows: 19.In our view, the Rice & Asplund test applies to all applications which seek to revisit parenting orders. Sometimes the test will be easily satisfied even though the issues to reconsider are major ones an…
DAVENPORT & DAVENPORT (No.2)
[2020] FCCA 2766 Para 1

…Judge Tonkin in Davenport v Davenport (No 2) (2020) 62 Fam LR 222; [2020] FCCA 2766 stated: [38] In my view the husband’s application is not an interlocutory application for the adjustment of property interests and does not fall within Pt VIII of the FLA. In Strahan v Strahan (Interim Property Orders) (2009) 42 Fam…
Gronow v Gronow
[1979] HCA 63 Para 25

…he primary judge’s discretionary decision is one to which the normal principles in House v The King (1936) 55 CLR 499 and Gronow v Gronow (1979) 144 CLR 513 apply. The primary judge’s task was a two-staged process. First, to make findings of fact as to what changes there had been in circumstances since the making of…
Rice & Asplund
[1978] FamCA 84

…& Radnor [2021] FamCAFC 67 Grunseth & Wighton (2022) FLC 94-099; [2022] FedCFamC1A 132 Rice and Asplund (1979) FLC 90-725; [1978] FamCA 84 Division: Division 1 First Instance Number of paragraphs: 64 Date of last submission/s: 13 December 2023 Date of hearing: 21 November 2023 Place: Sydney Counsel for the Applic…
House v R
[1936] HCA 40 Para 25

…d. 22.Consequently, the challenge to the primary judge’s discretionary decision is one to which the normal principles in House v The King (1936) 55 CLR 499 and Gronow v Gronow (1979) 144 CLR 513 apply. The primary judge’s task was a two-staged process. First, to make findings of fact as to what changes there had bee…
As the respondents point out, when Mr Meyer provided his advice he did not have the benefit of Strahan v Strahan
[2009] FAMCAFC 166 Para 1

…erty interests and does not fall within Pt VIII of the FLA. In Strahan v Strahan (Interim Property Orders) (2009) 42 Fam LR 203; (2011) FLC 93-466; [2009] FamCAFC 166, the Full Court indicated that in any application for interim property settlement the court must consider whether there is jurisdiction to make the ord…
House v The King
63 WN 176 Para 25

…that is considered. 22.Consequently, the challenge to the primary judge’s discretionary decision is one to which the normal principles in House v The King (1936) 55 CLR 499 and Gronow v Gronow (1979) 144 CLR 513 apply. The primary judge’s task was a two-staged process. First, to make findings of fact as to what changes th…
Davenport v Davenport
57 ER 40 Para 1

…Judge Tonkin in Davenport v Davenport (No 2) (2020) 62 Fam LR 222; [2020] FCCA 2766 stated: [38] In my view the husband’s application is not an interlocutory application for the adjustment of property interests and does not fall within Pt VIII of the FLA. In Strahan v Strahan (Interim Property Order…

Legislation cited in this decision · 1

Family Law Act 1975 (Cth)
60CA, 69ZL 3 mentions (from Para 25)

File number(s):	WOC 1226 of 2019
Judgment of:	CURRAN J
Date of judgment:	31 January 2024
Catchwords:	FAMILY LAW – PARENTING – Application in a Proceeding – Parental Responsibility – Where father seeks an order for equal shared parental responsibility to be reinstated – Where father seeks orders for a pet to travel with the children for his time with them – Where final property orders previously made by consent for the pet to travel with the children – Where mother seeks Applications to be dismissed – Where sole parental responsibility ordered on final basis by consent previously – Application of Rice and Asplund – Jurisdiction to make orders regarding a pet in parenting proceedings – Determined no significant change in circumstances – Determined no jurisdiction to make orders regarding a pet in parenting proceedings – Application dismissed
Legislation:	Family Law Act 1975 (Cth) ss 60CA, 69ZL
Cases cited:	Arena & Arena(No 3) [2023] FedCFamC1F 1129 Defrey & Radnor [2021] FamCAFC 67 Grunseth & Wighton (2022) FLC 94-099; [2022] FedCFamC1A 132 Rice and Asplund (1979) FLC 90-725; [1978] FamCA 84
Division:	Division 1 First Instance
Number of paragraphs:	64
Date of last submission/s:	13 December 2023
Date of hearing:	21 November 2023
Place:	Sydney
Counsel for the Applicant:	Mr Cataldi (later withdrew)
Solicitor for the Applicant:	John Stonham & Co (later withdrew)
The Applicant:	Litigant in Person
Counsel for the Respondent:	Mr Lawrence
Solicitor for the Respondent:	Maguire & Mcinerney Lawyers
Solicitor Advocate for the Independent Children’s Lawyer:	Ms Dodson
Solicitor for the Independent Children’s Lawyer:	Legal Aid NSW

WOC 1226 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR ARENA Applicant
AND:	MS ARENA Respondent
INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:	CURRAN J
DATE OF ORDER:	31 JANUARY 2024