BELLER & AHERN

[2014] FCCA 522

FEDERAL CIRCUIT COURT OF AUSTRALIA

BELLER & AHERN [2014] FCCA 522

Catchwords:
FAMILY LAW – Children aged 11 & 5 – parties and children share a (country omitted) background – proceedings commenced by mother in period immediately following parties’ separation and in circumstances in which father and children had travelled to (country omitted) – (country omitted) not a signatory to Hague Convention – mother alleged that she had not consented to children’s overseas travel – children returned to Australia without significant assistance from father – thereafter father spent professionally supervised time with children – family report ordered – final orders made in respect of parenting arrangements on 4 June 2013 – orders made ostensibly with the consent of each parent – orders not consented to by independent children’s lawyer – orders envisaged continued professional supervision of time and periods involving older child to be subject to her wishes – independent children’s lawyer not in favour of children spending any time with their father – orders consistent with recommendations of family report – father sought to re-open proceedings approximately six weeks after final orders made – father alleges he did not understand implications of the order due to limited English language skills – father also seeks parenting test in respect of older child – sufficiency of reason justifying re-opening of case – rule in Rice & Asplund – best interest of children – matters to be considered in respect of parentage testing.

Legislation:

Family Law Act 1975, ss.4AB; 60CA; 60CC; 64B(2); 68LA; 69W

Rice & Asplund (1979) FLC 90-725
Beller & Beller [2012] FMCAfam 1493
B v B: Family Law Reform Act 1995 (1997) FLC 92-755
Russell & Russell & Anor [2009] FamCA 28
Brianna v Brianna (2010) 43 Fam LR 309
TNL & CYT [2005] FamCA 77
Tyron v Clutterbuck  (2007) FLC 93-332
CDJ v VAJ (1998) FLC 92-828
In the Marriage of McEnearney (1980) FLC 90-866
Bennett & Bennett (1991) FLC 92-191
SPS & PLS [2008] FamCAFC 16
King & Finneran (2001) FLC 93-079
Amador & Amador (2009) 43 FamLR 268
Baranski & Baranski & Anor [2010] FMCAfam 918

Applicant: MR BELLER

Respondent: MS AHERN

File Number: ADC 1876 of 2012

Judgment of: Judge Brown

Hearing date: 5 February 2014

Date of Last Submission: 5 February 2014

Delivered at: Adelaide

Delivered on: 24 March 2014

REPRESENTATION

Counsel for the Applicant: Mr Greer

Solicitors for the Applicant: Adelaide Lawyers

Counsel for the Respondent: Ms Lewis

Solicitors for the Respondent: SE Lawyers

ORDERS

1. The application filed on 18 July 2013 is dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 1876 of 2012

MR BELLER

Applicant

And

MS AHERN

Respondent

REASONS FOR JUDGMENT

Introduction

1. These proceedings are mainly concerned with what lawyers invariably call “the rule in Rice & Asplund”.[1]  There is no absolute rule, but the case of Rice & Asplund recognises…