Bloxham and Bloxham (No 2) - [2020] FamCA 1040

FAMILY COURT OF AUSTRALIA

BLOXHAM & BLOXHAM (NO. 2)

[2020] FamCA 1040

FAMILY LAW – CHILDREN – Where further Initiating Application by father for parenting orders only months after final orders by consent – Where mother seeks to have application dismissed – Where consideration of Rice and Asplund threshold issue – Where consideration of applicable principles – Where no significant or relevant change in the children’s circumstances – Where Initiating Application dismissed – Where directions made for submissions as to costs appropriate.

Family Law Act 1975 (Cth)

Elmi & Munro (2019) FLC 93-912
Gaspaldi & Gaspaldi [2008] FamCAFC 134
Gelly and Gelly (No 1) (1992) FLC ¶92-290
Judd & Pryor(No.2) [2020] FamCA 934
Prewett & Mann [2013] FamCAFC 130
Rice & Asplund (1979) FLC 90-725
Smith v New South Wales Bar Association (No 2) (1992) 176 CLR 256
SPS & PLS (2008) FLC 93-363
Stephens & Stephens & Anor (Enforcement) (2009) FLC 93-425
Urban Transport Authority of New South Wales v Nweiser (1992) 28 NSWLR 471

APPLICANT:

Mr Bloxham

RESPONDENT:

Ms Bloxham

FILE NUMBER:

PAC

2582

2017

DATE DELIVERED:

8 December 2020

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

2 October 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Campton SC

SOLICITOR FOR THE APPLICANT:

Watts McCray

COUNSEL FOR THE RESPONDENT:

Mr Williams SC

SOLICITOR FOR THE RESPONDENT:

Dorter Family Lawyers And Mediators

Orders

That the fathers Initiating Application filed 6 July 2020 as amended be dismissed.
That any application for costs be by way of written submission filed and served within 14 days with any submissions in response thereto be filed and served within a further 14 days and that upon completion of submissions judgment as to costs be reserved to chambers.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bloxham & Bloxham has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 2582 of 2017

Mr Bloxham

Applicant

And

Ms Bloxham

Respondent

REASONS FOR JUDGMENT

On 5 March 2020 final parenting orders were made by consent in proceedings that had commenced in 2017.
On 5 March 2020 both parties were represented by senior counsel, who it is to be inferred represented to the Court on that day that the orders made were in the best interests of the children.
The final parenting orders were in the following terms:
(1)That within 24 hours of the date of these Orders the Mother and Father undertake chain of custody urine analysis in respect of the detection…

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 Bloxham and Bloxham (No 2)

Details

AGLC: Bloxham and Bloxham (No 2) [2020] FamCA 1040
Case: [2020] FamCA 1040
Decision Date: 8 December 2020

CaseChat Overview and Summary

In the matter of *Bloxham and Bloxham (No 2)*, Foster J of the Family Court of Australia considered an application by the father for parenting orders, filed only months after final consent orders had been made. The mother sought the dismissal of this further application.

The central legal issue before the court was whether the father's Initiating Application met the threshold required to warrant further consideration, particularly in light of the recent final consent orders. This involved an assessment of the principles governing applications for parenting orders when previous final orders exist, and whether there had been a significant or relevant change in the children's circumstances since those orders were made.

Foster J determined that the father's application did not establish a significant or relevant change in the children's circumstances that would justify revisiting the final consent orders. Applying the principles established in cases such as *Rice* and *Asplund*, the court found that the threshold for entertaining a further application had not been met. Consequently, the father's Initiating Application was dismissed. Directions were subsequently made for parties to file written submissions regarding costs.

Orders

Orders of the court

That the fathers Initiating Application filed 6 July 2020 as amended be dismissed.

That any application for costs be by way of written submission filed and served within 14 days with any submissions in response thereto be filed and served within a further 14 days and that upon completion of submissions judgment as to costs be reserved to chambers.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.