CHOATE & RAYMOND - [2015] FCCA 1596

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHOATE & RAYMOND

[2015] FCCA 1596

Catchwords:

FAMILY LAW – Children – parenting orders – application to vary earlier orders – application of the principle in Rice & Asplund – no change of circumstances sufficient to warrant re-opening of parenting proceedings.

Legislation:

Family Law Act 1975 (Cth), ss.60CA, 60CC, 67Q

Cases cited:
Carriel & Lendrum [2013] FCCA 284
Carriel & Lendrum [2015] FamCAFC 43
Choate & Raymond [2011] FamCAFC 19
Choate & Raymond [2012] FMCAfam 1441
Cortes & Cabrera [2007] FMCAfam 293
Hayman & Hayman (1976) 2 Fam LR 11,558; FLC 90-140
Miller & Harrington [2008] FamCAFC 150; (2008) 39 Fam LR 654; FLC 93-383; 220 FLR 300
Rice & Asplund (1978) 6 Fam LR 570; (1979) FLC 90-725
Raymond & Choate [2010] FMCAfam 451
Raymond & Choate [2011] FMCAfam 1108
Raymond & Choate [2013] FCCA 2262
SPS & PLS [2008] FamCAFC 16; (2008) 39 Fam LR 295; FLC 93-363

Applicant:

MS CHOATE

Respondent:

MR RAYMOND

File Number:

SYC 2546 of 2007

Judgment of:

Judge Scarlett

Hearing date:

9 February 2015

Date of Last Submission:

9 February 2015

Delivered at:

Sydney

Delivered on:

3 June 2015

REPRESENTATION

Solicitor for the Applicant:

Ms Murray

Solicitors for the Applicant:

Matthew Hammond Solicitors

Respondent:

In person

Independent Children's Lawyer:

Ms Power

Solicitors for the Independent Children's Lawyer:

Legal Aid NSW

ORDERS

The Initiating Application filed on 3 November 2014 is dismissed.
The Application in a Case filed on 12 November 2014 is dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 2546 of 2007

MS CHOATE

Applicant

And

MR RAYMOND

Respondent

REASONS FOR JUDGMENT

Application

This is an Application by the Mother of a girl called [X] who was born on [omitted] 2000 to discharge final Orders made by this Court on 16^th December 2013. Those Orders provided that the child would live with her father, the First Respondent, and that the Mother be restrained from having any form of contact with the child (Raymond & Choate[1]). Essentially, the Mother seeks orders that the child should return to live with her and spend time with the Father.
[1] [2013] FCCA 2262
The Application is opposed by the Father and by the Independent Children’s Lawyer, on the basis that there are insufficient grounds to warrant reopening parenting proceedings, according to the principle in Rice &Asplund[2].
[2] (1978) 6 Fam LR 570; (1979) FLC 90-725

Background

The proceedings concern the parties’ daughter, [X], who was born on [omitted] 2000. Proceedings were first commenced in 2007, and there have been numerous appearances since then. The parties entered into consent orders on 16^th July 2007 providing that the child would live with the Mother and contact would take place with the Father as set out in the orders. On 12^th February 2008 Sexton FM made final orders providing…

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 CHOATE & RAYMOND

Details

AGLC: CHOATE & RAYMOND [2015] FCCA 1596
Case: [2015] FCCA 1596
Decision Date: 3 June 2015

CaseChat Overview and Summary

In the matter of *Choate & Raymond*, heard before Judge Scarlett, the applicant sought to vary existing parenting orders. The respondent opposed this application.

The central legal issue before the court was whether there had been a sufficient change in circumstances since the making of the earlier parenting orders to warrant a re-opening of the proceedings and a variation of those orders, applying the principles established in *Rice v Asplund*.

Judge Scarlett considered the evidence presented by the applicant and determined that the alleged changes in circumstances did not meet the threshold required to justify disturbing the finality of the original parenting orders. The court applied the principles from *Rice v Asplund*, which generally require a significant and material change in circumstances to justify a review of existing parenting orders, absent exceptional circumstances. The court found that no such change had been demonstrated.

Consequently, the court dismissed the Initiating Application filed on 3 November 2014 and the Application in a Case filed on 12 November 2014.

Orders

Orders of the court

The Initiating Application filed on 3 November 2014 is dismissed.

The Application in a Case filed on 12 November 2014 is dismissed.

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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