Burton and Hope - [2015] FCCA 1994

FEDERAL CIRCUIT COURT OF AUSTRALIA

BURTON & HOPE

[2015] FCCA 1994

Catchwords:
FAMILY LAW – Children – parenting orders – application to vary final parenting orders – where respondent seeks summary dismissal of application – “Rice v Asplund” principle considered.

Legislation:

Family Law Act 1975 (Cth), s.60CA
Federal Court of Australia Act 1976 (Cth), s.31A
Federal Circuit Court of Australia Act 1999 (Cth), s.17A
Federal Circuit Court Rules 2001, r.13.10

Cases cited:
Australian and International Pilots Association v Qantas Airways Limited [2013] FWCFB 317
Carriel & Lendrum [2013] FCCA 284
Carriel & Lendrum [2015] FamCAFC 43
Choate & Raymond [2015] FCCA 1596
Marsden & Winch [2009] FamCAFC 152
Miller & Harrington [2008] FamCAFC 150; (2008) 29 Fam LR 654; FLC 93-283; 220 FLR 300
Rice v Asplund (1978) 6 Fam LR 570; (1979) FLC 930363
SPS and PLS [2008] FamCAFC 16; (2008) 39 Fam LR 295; FLC 93-363

Applicant:

MR BURTON

Respondent:

MS HOPE

File Number:

SYC 3313 of 2011

Judgment of:

Judge Scarlett

Hearing date:

20 July 2015

Date of Last Submission:

20 July 2015

Delivered at:

Sydney

Delivered on:

20 July 2015

REPRESENTATION

Counsel for the Applicant:

Mr Ford

Counsel for the Respondent:

Ms Winfield

Solicitors for the Respondent:

Eleanor Murphy & Co

ORDERS

The Interim Response filed on 15 April 2015 is dismissed.
The Respondent is to file and serve an Amended Response and an affidavit stating the facts upon which she seeks to rely within 28 days.
As provided by section 11F of the Family Law Act 1975 the parties are to attend a Child Dispute Conference at 2:00pm on 26 August 2015 and in accordance with section 11C of the Act the Conference is to be reportable.
The Application is adjourned to Tuesday 1 September 2015 for further mention at 10:00am.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYC 3313 of 2011

MR BURTON

Applicant

And

MS HOPE

Respondent

REASONS FOR JUDGMENT

The Application before the Court is on an application for summary dismissal of the Applicant’s case. The Respondent Mother in her Interim response filed on 15^th April 2015 seeks a parenting order which is of some relevance, but specifically seeks that the Applicant’s interim application be otherwise summarily dismissed pursuant to Rice v Asplund[1][i]. There is also an application for costs, interestingly enough, sought on an indemnity basis.
[1] (1978) 6 Fam LR 570; (1979) FLC 90-725
The Applicant is an international airline pilot, a long-haul pilot, to use the vernacular. He was a short-haul pilot. He was flying (omitted) aircraft for Qantas as a first officer. He is now a second officer flying (omitted) aircraft, also for Qantas. The reason for this change is twofold. Not only is it as a result of a decision of the Full Bench of the Fair Work Commission in Australian International Pilots Association v Qantas…

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 Burton and Hope

Details

AGLC: Burton and Hope [2015] FCCA 1994
Case: [2015] FCCA 1994
Decision Date: 20 July 2015

CaseChat Overview and Summary

In the matter of *Burton and Hope*, heard by Judge Scarlett, the dispute concerned an application before the court. The specific nature of the application and the relationship between the parties are not detailed in the provided text.

The court was required to determine the appropriate procedural steps to be taken in relation to the application. This included considering the adequacy of the respondent's initial response and the necessity for further disclosure and dispute resolution processes.

Judge Scarlett dismissed the Interim Response filed by the respondent. The court ordered the respondent to file and serve an Amended Response and an affidavit detailing the facts upon which she intended to rely within 28 days. Furthermore, the court directed the parties to attend a reportable Child Dispute Conference on 26 August 2015, pursuant to sections 11F and 11C of the *Family Law Act 1975*. The application was subsequently adjourned for further mention on 1 September 2015.

Orders

Orders of the court

The Interim Response filed on 15 April 2015 is dismissed.

The Respondent is to file and serve an Amended Response and an affidavit stating the facts upon which she seeks to rely within 28 days.

As provided by section 11F of the Family Law Act 1975 the parties are to attend a Child Dispute Conference at 2:00pm on 26 August 2015 and in accordance with section 11C of the Act the Conference is to be reportable.

The Application is adjourned to Tuesday 1 September 2015 for further mention at 10:00am.

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.