FAMILY COURT OF AUSTRALIA
| CARACINI & PAGLIETTA | [2009] FamCAFC 188 |
| FAMILY LAW - APPEAL – CHILDREN – In an appeal from the Family Court of Australia – Whether the trial judge erred in failing to dismiss the father’s application for a variation of parenting orders before a hearing on the merits – Where the mother’s response seeking the dismissal of the father’s application was framed with reference to Rice and Asplund principles – Where the trial judge was required to determine at a preliminary stage whether there was prima facie some evidence to warrant a variation of parenting orders – Where a substantial period of time had elapsed from the current orders – Where the father’s evidence alleged that the child had expressed a desire to spend more time with the father and had complained about the mother – Where the trial judge accepted that such allegations were denied by the mother – Where such matters were sufficient to dismiss the mother’s application – Appeal dismissed FAMILY LAW - COSTS – Where the appeal was wholly unsuccessful – Where it is inappropriate to make an order for costs given the financial circumstances of the parties – No order as to costs |
| Family Law Act 1975 (Cth) |
| D and Y (1995) FLC 92-501 Freeman and Freeman (1987) FLC 91-857 Gronow v Gronow (1979) 144 CLR 513; (1979) FLC 90-716 House v The King (1936) 55 CLR 499 Lindon v The Commonwealth (No. 2) (1996) 70 ALJR 541 Rice and Asplund (1979) FLC 90-725 SPS and PLS (2008) FLC 93-363 Zabaneh and Zabaneh (1986) FLC 91-766 |
| APPELLANT: | Ms Caracini |
| RESPONDENT: | Mr Paglietta |
| FILE NUMBER: | SYC | 2546 | of | 2008 |
| APPEAL NUMBER: | EA | 109 | of | 2008 |
| DATE DELIVERED: | 22 October 2009 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Coleman, May & O’Ryan JJ |
| HEARING DATE: | 19 August 2009 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 11 August 2008 |
| LOWER COURT MNC: | [2008] FamCA 725 |
REPRESENTATION
| SOLICITOR FOR THE APPELLANT: | Ms Paton Georgiou & Co |
| COUNSEL FOR THE RESPONDENT: | Mr Mulvey |
| SOLICITOR FOR THE RESPONDENT: | Logical Legal Solicitors |
Orders
The appeal be dismissed.
No order as to costs.
IT IS NOTED that publication of this judgment under the pseudonym Caracini & Paglietta is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 109 of 2008
File Number: SYC 2546 of 2008
| Ms Caracini |
Appellant
And
| Mr Paglietta |
Respondent
REASONS FOR JUDGMENT
Introduction
On 5 May 2008 the father filed an application for final orders in the Family Court of Australia. That application sought, in effect, the reconsideration of final parenting orders made on 12 November 2001 in relation to a boy, A, born in June 1997, now twelve years old.
The mother opposed the father’s application. In her response, she sought that the father’s application be dismissed prior to a hearing on the merits. Her argument was framed by reference to…
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- AGLC
- Caracini & Paglietta [2009] FamCAFC 188
- Case
- [2009] FamCAFC 188
- Decision Date
CaseChat Overview and Summary
The central legal issue before the Court of Appeal was whether the trial judge erred in not dismissing the father's application for a variation of parenting orders before a hearing on the merits. The Court was required to assess whether the trial judge correctly applied the principles of Rice and Asplund in evaluating the mother's application to dismiss. Furthermore, the Court had to consider the timing of the father's application, given that a significant period had elapsed since the current parenting orders were made, and whether the allegations made by the father regarding the child's expressed desire to spend more time with him warranted further proceedings.
The Court of Appeal held that the trial judge did not err in proceeding to a hearing on the merits of the father's application. The Court determined that the trial judge correctly exercised his discretion in assessing whether there was prima facie evidence to support a variation of the existing parenting orders. The allegations made by the father, although denied by the mother, were sufficient to warrant a hearing. Consequently, the Court found that the trial judge's decision was appropriate and dismissed the appeal. Additionally, the Court deemed it inappropriate to make an order for costs given the financial circumstances of the parties, thus no order as to costs was made.
The Court's final orders were that the appeal be dismissed and no order as to costs be made. This decision reinforces the importance of considering both the principles of Rice and Asplund and the specific circumstances of each case when deciding whether to proceed with a hearing on the merits of a parenting order variation application.
Orders
Orders of the court
1.
The appeal be dismissed.
2.
No order as to costs.
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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