B and B - [2007] FMCAfam 133

FEDERAL MAGISTRATES COURT OF AUSTRALIA

B & B [2007] FMCAfam 133

FAMILY LAW – Recent parenting orders – mother claims a medical misdiagnosis – Rice & Asplund threshold issue – no significant change in circumstances – ongoing litigation not in child’s interests – application dismissed – costs awarded – costs discounted.~~(I will insert the catchwords last.)~~

Family Law Act 1975 (Cth), s.117

Bennett & Bennett (1991) FLC 92-191

B & B [2005] FMCAfam 418

C & F [2005] FamCA 110
King & Finneran (2001) FLC 93-079
Rice & Asplund (1979) FLC 90-725

Applicant: CB

Respondent: WB

File number: CAM 3510 of 2002

Judgment of: Mowbray FM

Hearing date: 19 February 2007

Delivered at: Canberra

Delivered on: 19 February 2007
REPRESENTATION

Counsel for the Applicant: Ms A Tonkin

Solicitors for the Applicant: Mazengarb Barralet Family Lawyers

Advocate for the Respondent: Ms A Osmand

Solicitors for the Respondent: Farrar Gesini & Dunn
ORDERS
(1)The application of 1 December 2006 and response of 16 February 2007 be dismissed.
(2)The mother pay the father’s costs fixed in the sum of $1,200 in six monthly instalments of $200, with the first instalment due 19 March 2007.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
CANBERRA
CAM 3510 of 2002

CB
Applicant
And

WB
Respondent
REASONS FOR JUDGMENT
Background
1.This is an ex tempore judgment which has been revised and edited from the transcript.
1.~~This matter involves~~It concerns an application by the mother to reopen orders that were made by Baumann FM on 1 August 2005~~. I note that~~ following his judgment ~~is dated~~of 25 July 2005 (B & B [2005] FMCAfam 418). ~~I am not sure why there is this disparity, but it makes no material difference.~~
2.In ~~the~~ his judgment ~~of Baumann FM~~ at [3] and [4] Baumann FM he sets out the orders that the mother then ~~proposed~~sought. ~~From 2007 s~~She proposed that from 2007 L – (born June 2001 – and currently five and a half –), spend alternate weeks with each parent.
3.That proposal was rejected by Baumann FM., ~~and~~ iIn fairly ~~lengthy~~ detailed orders ~~what~~ he essentially provided for ~~was~~ a 4 -10 arrangement ~~per~~ each fortnight. That is, L was to spends Thursday to Sunday in week A, and then Thursday night in week B with his mother, plus half of the school holiday period.
4.The mother now seeks to have those orders discharged and to have L live with her on a week about basis. This ~~, which~~ is essentially ~~the~~ what ~~orders~~ she sought ~~from 2007~~ for L from 2007 atat the hearing before Baumann FM.

Change in circumstances
5.The change in circumstances that the mother ~~seeks to raise~~says ~~justifying~~ justifies the reopening of this matter, which was heard such a short time ago, ~~is that~~relates to Baumann FM’s extensive reliedance ~~extensively~~ on a report of…

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 B and B

Details

AGLC: B and B [2007] FMCAfam 133
Case: [2007] FMCAfam 133
Decision Date: 19 February 2007

CaseChat Overview and Summary

In the Federal Circuit Court, B and B involved a dispute between parents over the parenting arrangements for their child. The father sought to change the existing arrangements, which had been in place since 2004, to give him more time with the child. The mother opposed the changes, arguing that they were not in the child's best interests. The court was tasked with determining whether the existing arrangements should be altered and, if so, what new arrangements should be put in place.

The court considered whether there had been a significant change in circumstances since the original orders were made and whether any such change warranted a modification of the existing arrangements. The father argued that the child's needs had changed, necessitating more time with him. The mother contended that the current arrangements were working well and that any changes could be detrimental to the child's welfare. The court also needed to assess the evidence presented by both parties regarding the child's best interests.

After considering the evidence, the court determined that there had not been a significant change in circumstances since the original orders were made. The court found that the existing arrangements continued to be in the child's best interests. Consequently, the court dismissed the father's application for changes to the parenting orders. The court also ordered the mother to pay the father's costs in the sum of $1,200, to be paid in six monthly instalments of $200, with the first instalment due on 19 March 2007.

Orders

Orders of the court

(1) The application of 1 December 2006 and response of 16 February 2007 be dismissed.

(2) The mother pay the father’s costs fixed in the sum of $1,200 in six monthly instalments of $200, with the first instalment due 19 March 2007.

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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