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Chetti & Bhavalakar

Chetti & Bhavalakar

Case [2022] FedCFamC2F 194 7 February 2022

Jurisdiction

Child's Best Interests

Mental Health

Res Judicata

Alteration of Parenting Orders

Relocation of Child

Restraint on Relocation

Independent Children's Lawyer

Expert Evidence

Family Law

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Chetti & Bhavalakar [2022] FedCFamC2F 194

File number: MLC 10813 of 2021

Judgment of: JUDGE O'SHANNESSY

Date of judgment: 7 February 2022

Catchwords: FAMILY LAW – interim hearing – application pursuant to the rule in Rice & Asplund – application for summary dismissal of section 79A application – rule 10.13 application – restraining a parent relocating.

Legislation:
Family Law Act 1975 (Cth) ss 60CA, 60CC(2), 60CC(2A), 79A, 79A(1)(a), 75(2).

Federal Circuit and Family Court of Australia Act 2021 (Cth).

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 10.13(1)(a).

Cases cited:
AMS v AIF (1999) 199 CLR 160.

Ballan & Sandford [2018] FCCA 2436

Barbey & Tuttle (2013) FLC ¶93-534

Birk & Farwell [2021] FedCFamC2F 234

Defrey & Radno (No 2) (2021) FLC ¶94-044

Franklyn & Franklyn [2019] FamCAFC 256

Goode & Goode [2006] FLC ¶93-286

In the marriage of Rice and Asplund (1978) 6 Fam LR 570; (1979) FLC ¶90-725

Keavney & Mohlis [2021] FCCA 396

Lindon v The Commonwealth (No 2) (1996) 136 ALR 251

Malak & Malak (2016) FLC ¶93-718

Marsden & Winch (2013) FLC ¶93-560

Morgan & Miles (2007) FLC ¶93-343

Oswald & Karrington (2016) FLC ¶93-726

Re K [1994] FamCA 21

Richardson & Colombo [2021] FedCFamC1A 35

Ritter & Ritter and Anor (2020) FLC ¶93-957

Sampson & Hartnett (No. 10) [2007] FamCA 1365

Spencer & Commonwealth [2010] HCA 28

Stringer & Nissen (No. 2) (2019) FLC ¶93-922

Wilburn & Wilburn (2020) FLC ¶93-979

Division: Division 2 Family Law

Number of paragraphs: 78

Date of hearing: 7 February 2022

Place: Melbourne

Counsel for the Applicant: Mr C Trim

Solicitor for the Applicant: Bramham Lawyers

Counsel for the Respondent: Mr C Horsfall

Solicitor for the Respondent: Hope Earle Lawyers
ORDERS

MLC 10813 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS CHETTI

Applicant

AND:
MR BHAVALAKAR

Respondent

ORDER MADE BY:

JUDGE O'SHANNESSY

DATE OF ORDER:

7 FEBRUARY 2022

THE COURT ORDERS THAT:
1.The Respondent Father's application pursuant to the rule known as the rule of Rice & Asplund be and is dismissed.
2.The Applicant Mother's application pursuant to rule 10.13 of the Federal Circuit and Family Court Rules 2021 (Cth) be and is dismissed.
3.The Respondent Father's application for the summary dismissal of the Applicant Mother's application to set aside the property order of 27 April 2018 pursuant to section 79A of the Family Law Act 1975 (Cth) be and is dismissed.
4.Until further order the Respondent Father be and is restrained from relocating the child's residence.
5.The matter be adjourned to 16 June 2022 at 10.00am for Interim Defended Hearing at the Federal Circuit and Family Court of Australia at Melbourne.
6.The Applicant Mother's application to spend time and communicate with the child X born 2013 be adjourned to the interim defended hearing date above.
7.The Respondent Father's application to relocate the child's residence to Sydney be adjourned to the interim defended hearing date above.
8.Any further…

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 Chetti & Bhavalakar

Details

AGLC: Chetti & Bhavalakar [2022] FedCFamC2F 194
Case: [2022] FedCFamC2F 194
Decision Date

CaseChat Overview and Summary

This case involves an interim hearing in relation to a parenting and property matter between a mother and father. The mother has brought proceedings seeking to rebut the application for dismissal of her case under the rule in Rice & Asplund, to set aside final orders made in her absence in 2018, to restrain the father from relocating to Sydney, and to set aside property orders made in 2018. The father has brought an application for summary dismissal of the mother's section 79A application. The court found that there had been a sufficient change of circumstances that justified reopening litigation. However, the court found that there was not sufficient evidence to set aside the final orders made in 2018, and that there was a reasonable prospect of the mother successfully prosecuting her section 79A and property application. The court restrained the father from relocating to Sydney until further order, and directed that a child impact report be prepared. The matter was adjourned to a final hearing in May 2023.

The legal issues before the court were whether there had been a sufficient change of circumstances to justify reopening litigation, whether the final orders made in 2018 should be set aside, whether there was a reasonable prospect of the mother successfully prosecuting her section 79A and property application, and whether the father should be restrained from relocating to Sydney. The court found that there had been a sufficient change of circumstances to justify reopening litigation, but that the final orders should not be set aside. The court also found that there was a reasonable prospect of the mother successfully prosecuting her section 79A and property application, and that the father should be restrained from relocating to Sydney until further order.

The court based its decision on the evidence before it, which showed that the mother had significant mental health issues in 2018 but was now employed, had stable accommodation, and was under psychological treatment. The court also noted that the father had a significant asset pool and had been successful in managing his property and raising his child since 2017. The court found that the mother's mental health issues did not justify setting aside the final orders made in 2018, but that there was a reasonable prospect of the mother successfully prosecuting her section 79A and property application. The court also found that restraining the father from relocating to Sydney was necessary to protect the child's relationship with her mother.

The orders made by the court were that the Rice & Asplund application be dismissed, the application to set aside the final orders be dismissed, the application to restrain the father from relocating to Sydney be granted, and the application for summary dismissal of the section 79A application be dismissed. The court also directed that a child impact report be prepared and that the matter be adjourned to a final hearing in May 2023.

Orders