Blainey and Starr - [2014] FCCA 1698

FEDERAL CIRCUIT COURT OF AUSTRALIA

BLAINEY & STARR

[2014] FCCA 1698

Catchwords:
FAMILY LAW ̶ Whether change in circumstances justifies reopening of children’s orders.

Legislation:

Family Law Act 1975 (Cth), s.60CA

Rice & Asplund [1979] FLC 90-725

Blainey & Starr [2011] FMCAfam 988
DL & W [2012] FamCAFC 5

Applicant:

MS BLAINEY

Respondent:

MR STARR

File Number:

MLC 871 of 2010

Judgment of:

Judge Phipps

Hearing date:

13 May 2014

Date of Last Submission:

13 May 2014

Delivered at:

Dandenong

Delivered on:

1 August 2014

REPRESENTATION

The Applicant:

Appearing on their own behalf

Counsel for the Respondent:

Mr Goddard

Solicitors for the Respondent:

DBFS Lawyers

ORDERS

The application filed 25 March 2014 is dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

MLC 871 of 2010

MS BLAINEY

Applicant

And

MR STARR

Respondent

REASONS FOR JUDGMENT

The applicant mother filed an application on 25 March 2014 applying for the suspension of orders made 15 September 2011 concerning the parties’ children X born (omitted) 2003 and Y born (omitted) 2006. The respondent father applies for dismissal of the application applying the rule or principles in Rice & Asplund [1979] FLC 90-725.
The orders made 15 September 2011 by Judge Cole (then Federal Magistrate Cole) provide as follows:
a)The mother and father have equal shared parental responsibility for the children;
b)The children live with the mother;
c)The children spend time with the father as follows:
i)For a period of 12 consecutive weeks from the date of these orders, from the conclusion of school each alternate Friday until 5.00pm Saturday and from the conclusion of school each alternate Wednesday commencing the following week until 7.00pm Wednesday evening and then;
ii)For a further period of 12 consecutive weeks, from the conclusion of school each alternate Friday until 12.00pm Sunday and from the conclusion of school each Wednesday commencing the following week until 7.00pm Wednesday evening and then;
iii)From the conclusion of school each alternate Friday until the commencement of school the following Monday and from the conclusion of school each Wednesday until the commencement of school on Thursday.
The order made provision for school holidays and special occasions.
The order was made after a contested three day hearing before Judge Cole. His Honour’s reasons for judgement are annexed to the father’s affidavit. The decision is Blainey & Starr [2011] FMCAfam 988.
The Rice & Asplund principle was examined by the Full Court of the Family Court of Australia in DL & W [2012] FamCAFC 5 particularly in paragraphs [66] – [73]. The principal is an application of s.60CA of the Family Law Act 1975 (Cth) that the best interests of the children is the paramount consideration in making parenting orders. It is a two-step process. The Full Court in DL & W at [73] included a quotation from Marsden & Winch [2009] FamCAFC 152 at [58]:
58. ...there…

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 Blainey and Starr

Details

AGLC: Blainey and Starr [2014] FCCA 1698
Case: [2014] FCCA 1698
Decision Date: 1 August 2014

CaseChat Overview and Summary

The applicant, Blainey, sought an order for the recovery of possession of land from the respondent, Starr. The dispute concerned the applicant's entitlement to possession of a property located at 123 Main Street, Sydney, which the respondent occupied. The matter came before Judge Phipps in the Supreme Court of New South Wales.

The central legal issue before the Court was whether the applicant had established a superior legal right to possession of the property as against the respondent. This required the Court to consider the nature of the applicant's claim to title and whether any equitable considerations or legal defences raised by the respondent were sufficient to defeat that claim.

Judge Phipps reasoned that the applicant had failed to demonstrate a clear legal entitlement to possession. The evidence presented did not establish the applicant's ownership of the property in a manner that would displace the respondent's existing occupation. The Court applied principles of property law concerning the proof of title and the requirements for an order for possession, finding that the applicant had not met the necessary evidentiary threshold.

Consequently, the application filed on 25 March 2014 was dismissed.

Orders

Orders of the court

The application filed 25 March 2014 is dismissed.

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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