Baxter & Baxter - [2022] FedCFamC2F 82

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Baxter & Baxter [2022] FedCFamC2F 82

File number(s): PAC 3233 of 2021

Judgment of: JUDGE NEWBRUN

Date of judgment: 1 February 2022

Catchwords: FAMILY LAW – Rice & Asplund threshold hearing – Orders made.

Cases cited: Rice & Asplund (1979) FLC 90-725
Grace & Grace [2020] FamCAFC 286
Langmeil & Grange [2013] FamCAFC 31

Division: Division 2 Family Law

Number of paragraphs: 65

Date of last submission/s: 1 December 2021

Date of hearing: 1 December 2021

Place: Parramatta

Solicitor for the Applicant: Mr Gonzalez

Solicitor for the Respondent: Mr Timmer

ORDERS

PAC 3233 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS BAXTER

Applicant

AND:
MR BAXTER

Respondent

ORDER MADE BY:

JUDGE NEWBRUN

DATE OF ORDER:

1 FEBRUARY 2022

THE COURT ORDERS THAT:
1.The Mother’s Initiating Application filed 15 June 2021 is dismissed.
2.In relation to the Father’s Application for costs, direct the Mother to file and serve a brief written submission as to costs (no longer than two pages) within seven days.

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 a pseudonym Baxter & Baxter has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE NEWBRUN:
INTRODUCTION

This is the determination of the applicant Mother’s Application that she be permitted to relitigate final parenting Orders made by this Court on 14 May 2018 in respect to the child X born in 2010. An Interim Hearing was held on 1 December 2021 with the Mother and Father’s respective solicitors making oral submissions. The Father opposed, pursuant to the principles in the decision of Rice & Asplund (1979) FLC 90-725 (“Rice and Asplund”), the Mother being permitted to relitigate the above Orders.
The child, whilst in the Mother’s care on 14 June 2012 (when the child was almost aged 2 years), suffered a traumatic head injury arising from “an acute fronto parietal haemorrhage and bilateral subdural collections over the parietal regions of the brain. X also sustained fractures to both hands and suspected fractures of the medial metaphysis of the distal left tibia” (see paragraph 6 of the family report of Dr C dated 5 February 2018, being annexed to the Father’s Affidavit filed 1 October 2021).
Pursuant to final consent parenting Orders made on 14 May…

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 Baxter & Baxter

Details

AGLC: Baxter & Baxter [2022] FedCFamC2F 82
Case: [2022] FedCFamC2F 82
Decision Date

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, the court dismissed the mother's application to be permitted to relitigate final parenting orders made in May 2018 in respect of the child X. The final parenting orders provided that the child was to spend supervised time with the mother at a contact centre initially for six visits, and thereafter supervised time by various supervisors including members of the mother's extended family. The mother sought to discharge those orders and begin spending unsupervised time with the child, in particular for block periods during the child’s school holidays. The court considered the relevant legal principles and concluded that the mother had not established a prima facie case of changed circumstances that would justify a new hearing, and that it would not be in the best interests of the child for the mother to be permitted to re-litigate the parenting orders. The court also noted that the mother had not adequately addressed the important issues raised in respect of her by a family report writer. Accordingly, the mother's application was dismissed. The court ordered the mother to file and serve a brief written submission as to costs within seven days.

Orders