Catterall and Catterall - [2013] FMCAfam 336

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CATTERALL & CATTERALL

[2013] FMCAfam 336

FAMILY LAW – Parenting – application to dismiss parenting application – relying upon principles set out in Rice v Asplund.

Family Law Act 1975 (Cth) s.60CC

Rice & Asplund (1979) FLC 90-725
Marsden & Winch (2009) FamCAFC 152
SPS and PLS (2008) FLC 93-363
Goode & Goode (2006) FLC 93-286
King v Finneran (2001) FLC 93-079
DL & W (2012) FLC 93-496
Langmeil & Grange [2013] FamCA FC 31
Langham & Langham (1981) 6 FamLR 862
King v Finneran (2001) FLC 93-079
Reid & Lynch [2010] FamCA FC 184

Applicant:

MS CATTERALL

Respondent:

MR CATTERALL

File Number:

MLC 3374 of 2011

Judgment of:

O'Sullivan FM

Hearing date:

20 March 2013

Date of Last Submission:

20 March 2013

Delivered at:

Dandenong

Delivered on:

10 April 2013

REPRESENTATION

The Applicant:

Appeared in person

Counsel for the Respondent:

Mr Hutchins

Solicitors for the Respondent:

Nevin Lenne & Gross

ORDERS

The interim application of the father be dismissed.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT DANDENONG

MLC 3374 of 2011

MS CATTERALL

Applicant

And

MR CATTERALL

Respondent

REASONS FOR JUDGMENT

Ms Catterall (“the mother”) and Mr Catterall (“the father”) are the parents of X born (omitted) 2009 (“the child”).
The mother is 37 years of age and employed by (omitted). The father is 42 years of age and was employed as an (occupation omitted). The father is currently in receipt of Centrelink benefits and says he is studying (omitted). The parties were married on (omitted) 2009, separated on 13 March 2011. A divorce order was made on 14 February 2013.
After the father commenced proceedings in the Family Court of Australia in 2011 the parties made application for consent parenting orders in the Family Court of Australia. A Registrar of the Family Court of Australia made final parenting orders by consent on 12 October 2011 (“the Orders”) which provided that:

“1.The Consent Orders made 9 May 2011 be hereby discharged.
2.The parties have equal shared parental responsibility for X born (omitted) 2009 (aged 1 year) (“the child”).
3.That until the child commences primary school the child:
(a)live with the Father in a two week cycle as follows:
(i)     from 9.30 am Sunday to the commencement of childcare/kindergarten/school or 8.30 am on Monday;
(ii)    from the conclusion of childcare/ kindergarten/school or 8.30 am on Friday;
(iii)   from 9.30 am on Saturday until the commencement of childcare/kindergarten/school or 8.30 am on Monday;
(iv)   from the conclusion of childcare/ kindergarten/school or 6.00 pm on Wednesday until the commencement of childcare/ kindergarten/school on Friday.

(b) live with the Mother at all other times.
4.Notwithstanding paragraph 3 herein each party be at liberty to take the child on three one week holidays per year PROVIDED THAT:
(a)the holiday does not prevent either party’s contact with the…

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 Catterall and Catterall

Details

AGLC: Catterall and Catterall [2013] FMCAfam 336
Case: [2013] FMCAfam 336
Decision Date

CaseChat Overview and Summary

The case of Catterall & Catterall was an interim application seeking to dismiss a parenting application under the principles set out in Rice v Asplund. The Federal Magistrate found that the Orders made in 2011 were to be dismissed and the matter would proceed to a full hearing. The Court found there was a likelihood the Orders could be varied in a significant way and the potential detriment to the child caused by embarking on a rehearing did not outweigh the need to consider the child's best interests again. The Court was satisfied that there had been a significant change of circumstances since the Orders were made and the issues identified since the Orders were made were not foreseen at the time the Orders were made. The complexity of the issues and the child's developmental stage meant the matter was not suitable for determination on the papers. The Court was satisfied there was a likelihood the Orders could be varied in a significant way and the requirement to do so outweighed any detriment caused by re-opening the litigation between the mother and father.

Orders