Barrett and Plant

[2009] FMCAfam 417

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BARRETT & PLANT [2009] FMCAfam 417

FAMILY LAW – Parenting – father seeks to change final parenting orders made by consent in November 2007 – preliminary Rice and Asplund issue - consideration of best interests of child – application for variation of Orders refused.

Family Law Act 1975, s.65D

EJK & TSL (No. 4)[2006] FamCA 1022
King & Finneran (2001) FLC 93-079
R & BH [2006] FamCA 919
Sklovsky & Gastin [2007] FamCA 540
SPS & PLS [2008] FamCAFC 16

Rice & Asplund (1979) FLC 90-215

Applicant: MR BARRETT

Respondent: MS PLANT

File Number: SYC 544 of 2007

Judgment of: Sexton FM

Hearing date: 14 April 2009

Date of Last Submission: 14 April 2009

Delivered at: Sydney

Delivered on: 14 April 2009

REPRESENTATION

Counsel for the Applicant: Mr S. Thomas

Solicitors for the Applicant: Mcgrath Dicembre & Company

Counsel for the Respondent Mr M. Wong

Solicitors for the Respondent Malouf Solicitors

UPON NOTING THAT:

(a)   The parties agreed in December 2008 to changeover taking place at the [H] Contact Centre, and those changeover arrangements continue; and

(b)  It is anticipated Mr Pickup’s valuation of the father’s business will be completed prior to the adjourned date.

THE COURT ORDERS THAT:

1. The father’s application for variation of parenting orders made on

   
   26 November 2007

   be dismissed.

2. The matter be adjourned to 26 June 2009 at 10.00a.m. before me for interim hearing.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYC 544 of 2007

MR BARRETT

Applicant

And

MS PLANT

Respondent

REASONS FOR JUDGMENT

Ex tempore

1. These reasons are delivered orally.

2. By application filed on 10 October 2008, the father seeks to vary final parenting orders made by consent on 26 November 2007 in relation to the parties' two children, [A] aged 7 and [R] aged 5.

3. I am asked to decide as a preliminary issue whether there has been a change of circumstances such that the current parenting arrangements should be re-assessed. The mother asks that the father's application be dismissed because the father has not established that a change has occurred such to warrant the Court embarking on a hearing of the father's variation application.

4. Each party was represented in the 2007 proceedings. The November 2007 orders provide for [A] and [R] to live with the mother, and spend time with the father on alternate weekends from Friday afternoon until Sunday evening, half of the gazetted short-term school holidays and each alternate week during Christmas school holiday periods. The orders also include restraints in relation to who can be present when the children are bathing, where the children can sleep and physical discipline of the children. Orders were made for the use of a communication book, and the parties were ordered to attend a parenting after separation course and any other course recommended by Unifam. The parties are presently…