Cobb & Landry - [2023] FedCFamC2F 847

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Cobb & Landry [2023] FedCFamC2F 847

File number: MLC 2205 of 2019

Judgment of: JUDGE BROWN

Date of judgment: 11 July 2023

Catchwords: FAMILY LAW – Parenting – final orders made by consent in February 2020 – where the orders provide for the mother to resume time spending subject to conditions – application for summary dismissal pursuant to Rice & Asplund rule – whether the rule should be applied – whether there has been a significant change in circumstances – nature of interim hearing – bests interests of the children – matters to be considered

Legislation: Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CA, 60CC, 60I, 62G

Cases cited:
Baisman & Cartmill [2022] FedCFamC1A 36

Bennett & Bennett (1991) FLC 92-191

CDJ v VAJ (1998) FLC 92-828

Goode & Goode (2006) FLC 93-286

In the Marriage of McEnearney (1980) FLC 90-866

Jurchenko & Foster (2014) 51 Fam LR 588

King & Finneran (2001) FLC 93-079

Marsden v Winch (2009) 42 Fam LR 1

Mazorski v Albright (2007) 37 Fam LR 518

Moose & Moose (2008) FLC 93-375

Rice & Asplund (1979) FLC 90-725

SPS & PLS [2008] FamCAFC 16

Walter & Walter [2016] FamCAFC 56

Webster v Lampard (1993) 177 CLR 598

Zahawi & Rayne [2016] FamCAFC 90

Division: Division 2 Family Law

Number of paragraphs: 132

Date of hearing: 4 July 2023

Place: Adelaide

Counsel for the Applicant: Ms Pangallo

Solicitor for the Applicant: Pascale Legal

Solicitor for the Respondent: Ms Danner, Swan Lawyers
ORDERS

MLC 2205 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS COBB

Applicant

AND:
MR LANDRY

Respondent

order made by:

JUDGE BROWN

DATE OF ORDER:

11 July 2023

THE COURT ORDERS THAT:
1.The Respondent’s application to dismiss the proceedings pursuant to the rule in Rice & Asplund is declined.
2.Pursuant to s 62G (3A) & (3B) of the Family Law Act 1975 (Cth), the parties and the children X born in 2015 and Y born in 2018 (the children) are directed to attend with a Court Child Expert (practicing under their appointment as a family consultant) nominated by the Court Children’s Service (the Court Child Expert) for the purposes of the preparation of a Child Impact Report at the dates and times below, or as otherwise directed by the Court Child Expert.
3.Part 1 of the event will occur by video, using Microsoft Teams, on 28 September 2023 with:
(a)the Applicant to attend at 9.00am;
(b)the Respondent to attend at 10.30am; and
(c)Microsoft Teams links will be provided to the parties by the Court Child Expert prior to the event.

4.Part 2 of the event will occur in person at the Adelaide Registry at 3 Angas Street, Adelaide at 9:00am on 29 September 2023. Specific details regarding the attendance of the parties and the children on this date will be provided to the parties in Part 1 of the event.
5.Each party will…

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 Cobb & Landry

Details

AGLC: Cobb & Landry [2023] FedCFamC2F 847
Case: [2023] FedCFamC2F 847
Decision Date

CaseChat Overview and Summary

The case of Cobb & Landry was heard by Judge Brown of the Federal Circuit and Family Court of Australia. The primary issue before the court was whether the proceedings brought by the mother, Ms Cobb, should be summarily dismissed in accordance with the Rice & Asplund rule, given that a final parenting order had been made in February 2020. The father, Mr Landry, argued that the proceedings were not in the best interests of the children and should be dismissed. Ms Cobb contended that she had complied with the preconditions set out in the February 2020 orders and had no alternative but to seek the court's assistance to spend time with her children.

The court found that the application for summary dismissal should be declined. The orders of February 2020, while described as final, had a provisional quality and were contingent on future events, including the mother's relocation and completion of a rehabilitation program. Ms Cobb had complied with these conditions and had made efforts to engage in family dispute resolution and therapeutic counselling. The father had made no proposals to facilitate the children's relationship with their mother. The court determined that the issues raised were of significant importance to the children's best interests and that an interim hearing was insufficient to resolve the contested facts. The court ordered that a Child Impact Report be prepared and that the children be independently represented. The matter was adjourned to allow for further evidence and consideration of the children's best interests.

Orders