CASTRO & PAULSON - [2021] FCCA 1130

FEDERAL CIRCUIT COURT OF AUSTRALIA

CASTRO & PAULSON

[2021] FCCA 1130

Catchwords:
FAMILY LAW – Parenting Orders – Application to re-open litigation pursuant to rule in Rice & Asplund.

Legislation:

Family Law Act 1975 (Cth), s.64B

Cases cited:

Rice & Asplund (1979) FLC 90-725

Paulson & Castro [2016] FCCA 3517

Bennett& Bennett (1991) FLC 92-191
D & Y (1995) FLC 92-581
SPS & PLS [2008] FamCAFC 16
King & Finneran [2001] FamCA 344
Searson & Searson [2017] FamCAFC 119
Marsden & Winch [2009] FamCAFC 152

Applicant:

MR CASTRO

Respondent:

MS PAULSON

File Number:

BRC 6742 of 2020

Judgment of:

Judge Lapthorn

Hearing date:

26 November 2020

Date of Last Submission:

26 November 2020

Delivered at:

Brisbane

Delivered on:

26 May 2021

REPRESENTATION

Counsel for the Applicant:

Mr Gordon

Solicitors for the Applicant:

ABF Legal

Counsel for the Respondent:

Ms McLennan

Solicitors for the Respondent:

Hardings Gulhane Solicitors

ORDERS

The Further Amended Initiating Application filed 13 August 2020 be dismissed.
The father file written submissions in relation to costs within 21 days of today’s date.
The mother file written submission in reply within a further 14 days.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 6742 of 2020

MR CASTRO

Applicant

And

MS PAULSON

Respondent

REASONS FOR JUDGMENT

Introduction

The parents of seven year old X obtained final parenting orders in relation to his care on 14 October 2016. He was only two years at the time. His father, Mr Castro, is seeking to re-litigate the parenting arrangements. In order to do so he will need to show that there has been a significant change of circumstances. This is known as the rule in Rice & Asplund[1]. The mother, Ms Paulson, opposes the re-opening of the litigation arguing that there has been no change of circumstances, significant to warrant a change in the current orders. She seeks that his application be dismissed. In the event the mother is not successful in resisting the re-opening of the parenting proceedings she asks the court to order that the father pay security for costs pursuant to s 117. The father opposes this order.
[1] (1979) FLC 90-725
The orders made on 14 October 2016 provided for the child to live primarily with the mother and for her to have sole parental responsibility for him, subject to her consulting the father prior to any final decision. The child’s time with the father was to gradually increase such that by the time he turned five he would be spending each alternate weekend with the father from afterschool Friday to 4.30pm Sunday as well as from after school to 7pm Thursday in the other week. There was provision for the child, once he commenced primary school, to spend time with the father for four consecutive nights during the school holidays at the ends of terms one, two and three…

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 CASTRO & PAULSON

Details

AGLC: CASTRO & PAULSON [2021] FCCA 1130
Case: [2021] FCCA 1130
Decision Date: 26 May 2021

CaseChat Overview and Summary

This matter concerned an application by the father to re-open litigation concerning parenting orders, invoking the rule established in *Rice v Asplund*. The dispute centred on the father's desire to revisit existing parenting arrangements. The application was heard by Judge Lapthorn.

The primary legal issue before the court was whether the circumstances warranted the re-opening of final parenting orders, applying the principles articulated in *Rice v Asplund*. This required the court to consider whether there had been a significant change in the circumstances of the child since the making of the last final orders, and whether it would be in the child's best interests to permit the re-litigation of the parenting dispute.

Judge Lapthorn dismissed the father's application. The court found that the threshold for re-opening final parenting orders, as established in *Rice v Asplund*, had not been met. The reasoning focused on the absence of a significant change in circumstances that would justify disturbing the finality of the previous orders, and the paramount consideration of the child's welfare.

Consequently, the Further Amended Initiating Application filed on 13 August 2020 was dismissed. The court also ordered the father to file written submissions regarding costs within 21 days, with the mother to file submissions in reply within a further 14 days.

Orders

Orders of the court

The Further Amended Initiating Application filed 13 August 2020 be dismissed.

The father file written submissions in relation to costs within 21 days of today’s date.

The mother file written submission in reply within a further 14 days.

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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