Carlton and Carlton - [2008] FamCA 964

FAMILY COURT OF AUSTRALIA

CARLTON & CARLTON

[2008] FamCA 964

FAMILY LAW – CHILDREN – application to vary existing parenting orders – where Respondent submits application should be dismissed pursuant to Rice and Asplund (1979) FLC 90-725 - in the event the Court was satisfied the Applicant had demonstrated a substantial change in circumstances, the Applicant submitted that the Court would nonetheless dismiss the application because allowing it to continue was contrary to the children’s best interests - the rule achieves an outcome for children which promote their best interests by the application of statute - there is no alternate rule of general application which enables a court exercising Family Law Act jurisdiction to dismiss a parenting application at a preliminary hearing for the reasons argued by the Respondent

Family Law Act 1975 (Cth)
Family Law (Shared Parental Responsibility) Act 2006 (Cth)

Rice and Asplund (1979) FLC 90-725
King v Finneran (2001) FLC 93-079
G & G [2000] FamCA 12
SPS and PLS (2008) FLC 93-363
King v Finneran (2001) FLC 93-079
Saad v Saad (1993) FLC 92-332

APPLICANT:

Ms Carlton

RESPONDENT:

Mr Carlton

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Commission of NSW

FILE NUMBER:

(P)NCC

3752

2007

DATE DELIVERED:

12 November 2008

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

The Hon. Justice Ryan

HEARING DATE:

15 September 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Byrnes

SOLICITOR FOR THE APPLICANT:

Byrnes Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Hamilton

SOLICITOR FOR THE RESPONDENT:

Cecil Black Family Lawyers

SOLICTOR ADVOCATE FOR THE INDEPENDENT CHILDREN’S LAWYER

Ms Carty

Orders

That the mother’s Application in a Case filed 26 August 2008 is dismissed.
In the event a party or the Independent Children’s Lawyer seeks costs of these preliminary proceedings, within 28 days they shall file with my Associate and serve written submissions.
Within 14 days of service of submissions filed pursuant to the above order, the party or Independent Children’s Lawyer shall file with my Associate and serve written submissions in reply.
Within a further 7 days an applicant for costs may file with my Associate and serve any further submissions in answer.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: (P)NCC3752 OF 2007

MS CARLTON

Applicant

And

MR CARLTON

Respondent

REASONS FOR JUDGMENT

Introduction

Mr Carlton (“the father”) and Ms Carlton (“the mother”) have two children, J and C. J was 14 months old when the parties separated and C was born four months afterwards. The children are now respectively 11 and 10 years old. Since separation the children have lived with the mother in P. For about 24 months after the parties separated the children’s contact with the father was limited. Since then they have regularly spent time with him albeit not always with the same frequency or duration. In the ten years since the parties separated they have been involved in various family…

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 Carlton and Carlton

Details

AGLC: Carlton and Carlton [2008] FamCA 964
Case: [2008] FamCA 964
Decision Date: 12 November 2008

CaseChat Overview and Summary

In the matter of *Carlton and Carlton*, Justice Ryan of the Family Court of Australia considered an application by the mother concerning parenting arrangements for the parties' child. The specific nature of the dispute, beyond the mother's application being dismissed, is not detailed in the provided text.

The primary legal issue before the court was the determination of the mother's application. The court was required to decide whether to grant the relief sought by the mother in her application filed on 26 August 2008.

Justice Ryan dismissed the mother's application. The court also made orders regarding the potential for costs applications by either party or the Independent Children's Lawyer, setting out a detailed timetable for the filing and service of written submissions concerning costs.

Orders

Orders of the court

That the mother’s Application in a Case filed 26 August 2008 is dismissed.

In the event a party or the Independent Children’s Lawyer seeks costs of these preliminary proceedings, within 28 days they shall file with my Associate and serve written submissions.

Within 14 days of service of submissions filed pursuant to the above order, the party or Independent Children’s Lawyer shall file with my Associate and serve written submissions in reply.

Within a further 7 days an applicant for costs may file with my Associate and serve any further submissions in answer.

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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