CLARKE & VARGAS - [2015] FamCA 292

FAMILY COURT OF AUSTRALIA

CLARKE & VARGAS

[2015] FamCA 292

FAMILY LAW – Application to vary parenting orders – Where final orders were made after five day trial in February 2014 - Consideration as to whether there were changed circumstances to justify a new hearing – Principles in Rice & Asplund (1979) FLC 90-725 discussed – Preliminary issue – Where change in father’s circumstances is not of sufficient significance to justify revisiting the parenting arrangements – Where it is not in the child’s best interests to be involved in further litigation – Application dismissed.

FAMILY LAW – REVIEW – where father seeks to review Order dismissing interim parenting application – Application dismissed.

Family Law Act 1975 (Cth)

Bennett (1991) FLC 92-191
Caracini & Paglietta [2009] FamCAFC 188
CDJ v VAJ (1998) 197 CLR 172; (1998) FLC 92-828
DL & W (2012) FLC 93-496; [2012] FamCAFC 5
Freeman & Freeman (1987) FLC 91-857
G & G [2000] FamCA 12
In the Marriage of McEnearney (1980) FLC 90-866
King & Finneran (2001) FLC 93-079
Langmeil & Grange [2013] FamCAFC 31
Lowe & Lowe (unreported, High Court of Australia, Mason, Dawson and Toohey JJ, 6 April 1990)
Marsden & Winch (2009) 42 Fam LR 1; [2009] FamCAFC 152
Miller & Harrington (2008) FLC 93-383
Newling and Newling; Mole (Applicant) (1987) FLC 91-856
Poisat & Poisat (2014) FLC 93-597; [2014] FamCAFC 128
Rice & Asplund (1979) FLC 90-725
SCVG & KLD (2014) FLC 93-582
SPS & PLS (2008) FLC 93-363

APPLICANT:

Ms Clarke

RESPONDENT:

Mr Vargas

FILE NUMBER:

BRC

10951

2011

DATE DELIVERED:

24 April 2015

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Hogan J

HEARING DATE:

2 March 2015

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Ms Byrne from W P Lawyers

THE RESPONDENT:

In Person

Orders

The Initiating Application filed 15 August 2014 is dismissed.
The Application in a Case filed 31 December 2014 is dismissed.
In the event Ms Clarke (the Applicant) seeks an order that Mr Vargas (the Respondent) pay the costs of and incidental to the Initiating Application filed 15 August 2014 and/or the Application in a Case filed 31 December 2014:
(a)the Applicant shall file and serve brief written submissions in support of such application for costs within fourteen (14) days of today; and
(b)the Respondent shall file and serve any brief written submissions in answer to the submissions filed and served by the Applicant seeking costs within a further fourteen (14) days thereafter; and
(c)the Applicant shall file and serve any brief further written submissions, strictly in reply to the submissions served by the Respondent, within seven (7) days of its service,
and any such application for costs shall be considered in Chambers.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Clarke & Vargas has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 10951 of 2011

Ms Clarke

Applicant

And

Mr Vargas

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 CLARKE & VARGAS

Details

AGLC: CLARKE & VARGAS [2015] FamCA 292
Case: [2015] FamCA 292
Decision Date: 24 April 2015

CaseChat Overview and Summary

In the matter of *Clarke & Vargas*, Hogan J of the Family Court of Australia considered an application by the father to vary final parenting orders made in February 2014 following a five-day trial. The father sought to revisit the established parenting arrangements, and also sought to review an earlier order that had dismissed an interim parenting application.

The central legal issue before the court was whether there had been a sufficient change in circumstances since the final orders were made to justify a new hearing. The court was required to consider the principles established in *Rice & Asplund* (1979) FLC 90-725 regarding the circumstances under which final parenting orders can be revisited. A further consideration was whether it was in the child's best interests to be involved in further litigation.

Hogan J determined that the change in the father's circumstances was not of sufficient significance to warrant revisiting the parenting arrangements. The court found that it was not in the child's best interests to be subjected to further litigation. Consequently, both the Initiating Application filed on 15 August 2014 and the Application in a Case filed on 31 December 2014 were dismissed. The court also made provision for the consideration of costs in chambers, outlining a process for written submissions from both parties.

Orders

Orders of the court

The Initiating Application filed 15 August 2014 is dismissed.

The Application in a Case filed 31 December 2014 is dismissed.

In the event Ms Clarke (the Applicant) seeks an order that Mr Vargas (the Respondent) pay the costs of and incidental to the Initiating Application filed 15 August 2014 and/or the Application in a Case filed 31 December 2014:

(a) the Applicant shall file and serve brief written submissions in support of such application for costs within fourteen (14) days of today; and

(b) the Respondent shall file and serve any brief written submissions in answer to the submissions filed and served by the Applicant seeking costs within a further fourteen (14) days thereafter; and

(c) the Applicant shall file and serve any brief further written submissions, strictly in reply to the submissions served by the Respondent, within seven (7) days of its service,

and any such application for costs shall be considered in Chambers.

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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