Baars and Guerin

[2018] FCCA 199

FEDERAL CIRCUIT COURT OF AUSTRALIA

BAARS & GUERIN [2018] FCCA 199

Catchwords:
FAMILY LAW – Parenting – one child aged 10 – Rice & Asplund application – where the mother sought to reopen proceeding so as to relocate with the child – no change in circumstances warranting a reopening of the proceedings – not in the best interests of the child to reopen proceedings.

Legislation:

Family Law Act 1975 (Cth), pt.VII

Cases cited:

Marsden & Winch [2009] FamCAFC 152
Newling & Newling; Mole (Applicant) [1987] FamCA 21
Poisat & Poisat [2014] FamCAFC 128
Rice & Asplund (1979) FLC 90-725

Applicant: MS BAARS

Respondent: MR GUERIN

File Number: NCC 229 of 2015

Judgment of: Judge Middleton

Hearing date: 22 January 2018

Date of Last Submission: 22 January 2018

Delivered at: Newcastle

Delivered on: 1 February 2018

REPRESENTATION

Counsel for the Applicant: Mr Duane

Solicitors for the Applicant: East Coast Law

Counsel for the Respondent: Mr Rugendyke

Solicitors for the Respondent: John Adams Solicitor

ORDERS

1. The application filed on 14 June 2017 is dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 229 of 2015

MS BAARS

Applicant

And

MR GUERIN

Respondent

REASONS FOR JUDGMENT

Introduction

1. The Applicant, Ms Baars, commenced proceedings by filing an initiating application on 14 June 2017.

2. The mother's application sought to discharge the Orders made by consent on 9 August 2016. The mother seeks orders in lieu thereof permitting her and the child to relocate to South Australia. The mother seeks orders providing for the child to spend holiday time, one weekend every five weeks in Sydney, two weekends during each school term in Adelaide and Father’s Day in Adelaide in the event the father travels to Adelaide.

3. The Respondent father Mr Guerin filed his response on 6 September 2017. He seeks an order that the mother’s initiating application be dismissed.

4. The matter was adjourned until 22 January 2018 for a hearing as to whether the rule in Rice and Asplund[1] should be applied so as to prevent the application of the mother proceeding any further.

   [1] (1979) FLC 90-725.

5. The parties agreed and I allowed to some short cross-examination of the parties at the hearing.

The issue

1. The issue for me to determine therefore is whether the mother's application should be dismissed after applying the rule in Rice & Asplund.[2]

The evidence relied upon by the parties

[2] Ibid.

The material

1. The mother relied upon:

   a)initiating application filed 14 June 2017;

   b)notice of risk filed 14 June 2017;

   c)affidavits filed 14 June 2017 and 10 January 2018;

   d)affidavit of Mr M (the mother’s current husband) filed 10 January 2018;

   e)case outline.

2. The father relied upon:

   a)response filed 6 September 2017;

   b)his affidavit filed 6 September 2017 and10 January 2018.

Background

1. The parties married on (omitted) 2002.

2. The mother has suffered ongoing and variable depression and anxiety since 2003.

3. The…