Cook & Tracey - [2008] FamCA 74

FAMILY COURT OF AUSTRALIA

COOK & TRACEY

[2008] FamCA 74

FAMILY LAW – CHILDREN – With whom a child lives – Mother seeking to re-litigate residence issues- Open to the judge to dismiss the application on the basis that it failed to meet the Rice v Asplund test - No substantial change in circumstances or evidence likely to produce a significantly different result.

Rice & Asplund (1979) FLC 90-725
F & C [2004] FamCA 56
King v Finneran (2001) FLC 92-07
Bennett and Bennett (1991) FLC 92-191
In D and Y (1995) FLC 92-581
In CDJ v VAJ (1998) FLC 92-828
Bolitho and Cohen (2005) FLC 93-224

APPLICANT:

MR COOK

RESPONDENT:

MS TRACEY

FILE NUMBER:

SYF

4466

2001

DATE DELIVERED:

14 February 2008

PLACE DELIVERED:

Launceston

PLACE HEARD:

Hobart

JUDGMENT OF:

Benjamin J

HEARING DATE:

17 December 2007

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Applicant in Person

COUNSEL FOR THE RESPONDENT:

Mr Patrick Fitzgerald

SOLICITOR FOR THE RESPONDENT:

Legal Aid Commission of Tasmania

Orders

The Response filed by the mother on the 27 July 2007 be dismissed together with all other outstanding applications.
This matter be removed from the list of cases requiring determination.
IT IS CERTIFIED
Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel and senior counsel to attend.

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

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: SYF4466/2001

MR COOK

Applicant

and

MS TRACEY

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

These are proceedings between the father and the mother in relation to their daughter (“the child”) born in October 1999, now aged 8.
The father, in his amended application filed on 26 October 2007 seeks orders ‘upholding the orders’ made in the Family Court of Australia on 25 January 2005 (“the Orders”). The father is unrepresented and this application was taken to be an application to dismiss the proceedings of the mother seeking a change in the parenting orders under part VII of the Family Law Act (“the Act”).
The mother seeks continuation of the proceedings to enable judicial determination of the application for orders she seeks in her Response filed 27 July 2007. In that response the mother seeks orders that the father spend time with the child as follows:
(a)in Sydney for one weekend every two months with such time to include the paternal family.
(b)for the first week of each of the May/June and September school holidays.
(c)each alternative Easter commencing each alternate year at Easter commencing in Easter 2008.
(d)in two blocks, each of one week’s duration, during the December/January holidays with such time to commence on the 26 December and the 30 January in each year.
(e)an Order that the father provide her with the child’s travel documents one month prior to such time occurring and in the event the father fails to do so the mother is under no…

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 Cook & Tracey

Details

AGLC: Cook & Tracey [2008] FamCA 74
Case: [2008] FamCA 74
Decision Date: 14 February 2008

CaseChat Overview and Summary

This matter concerned an application by the mother to re-litigate residence issues concerning the parties' child. The application sought to change parenting orders made by Le Poer Trench J on 25 January 2005, following a defended hearing. The mother and father had a lengthy and complex litigation history, with the child having resided with the mother since birth. The mother had since remarried and relocated to Tasmania with her new husband and her son.

The primary legal issue before Benjamin J was whether the mother's application to change the existing parenting orders met the threshold established in *Rice v Asplund*. This test requires that there be either a substantial change in circumstances since the making of the last orders, or new evidence that was not before the court previously and is likely to produce a significantly different result. The court was required to determine if the mother's application satisfied this stringent test before allowing the matter to proceed to a full hearing.

Benjamin J dismissed the mother's application, finding that it failed to meet the *Rice v Asplund* test. His Honour reasoned that there had been no substantial change in circumstances since the 2005 orders, nor was there any new evidence presented that would likely lead to a significantly different outcome. The court applied the principles from *Rice v Asplund*, which are designed to prevent the constant re-litigation of parenting orders and to provide finality for families. The court also noted the extensive history of litigation between the parties, reinforcing the need for such a threshold test.

Consequently, Benjamin J ordered that the Response filed by the mother on 27 July 2007, along with all other outstanding applications, be dismissed. The matter was removed from the list of cases requiring determination. The court also certified that it was reasonable to engage counsel and senior counsel to attend the proceedings, pursuant to Rule 19.50 of the Family Law Rules 2004.

Orders

Orders of the court

The Response filed by the mother on the 27 July 2007 be dismissed together with all other outstanding applications.

This matter be removed from the list of cases requiring determination.

IT IS CERTIFIED

Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel and senior counsel to attend.

Background

Background to the litigation

This application seeks to change the parenting Orders put in place by Le Poer Trench J on 25 January 2005 following a defended hearing (‘the Orders”).BACKGROUND Much of the early background is taken from the reasons of Le Poer Trench J delivered 25 January 2005. The father is aged 46 years. The father resides in Sydney, NSW. The mother is aged 35 years. The mother remarried in September 2003 and has a 3 year old son with her husband. The mother relocated to Tasmania in January 2006 with the child, her husband and her son. This relocation took place pursuant to the Orders. The mother and father commenced their relationship in approximately 1998 and began living together in June 2000. The child is the only child of their relationship. The child has resided with her mother since her birth. The parties’ relationship broke down and they separated in February 2001 and the child remained primarily in her mother’s care. Following separation the child had contact with her father each Friday from 3.00pm until Monday at 10.00am. He also saw her on Thursday overnight in the following week and also on a Tuesday overnight. The history of the litigation between the parties is lengthy and complex. In June 2001 the mother filed an Application for Final Orders. In July 2001 the father filed an Application for residence and contact. In April 2001 an incident occurred between the parties. On the 21 of June 2001 the father gave undertakings to a Court and as a consequence proceedings under the domestic violence provisions of the New South Wales Crimes Act were discontinued. In September 2001 further domestic violence proceedings were commenced against the father for orders for the protection of the mother. These proceedings were concluded on the 28 March 2002 by the father giving written undertakings. On the 23 of July 2001 interim orders were made in this Court which orders provided that the father have contact with the child three nights per fortnight. In August 2001 the father filed an Application for Review of those interim orders. The application was heard on the 7 December 2001 and was dismissed. The parties reached agreement and interim orders were made on the 15 October 2001. On the 21 February 2002 the mother filed an Interim Application for orders that the father have supervised contact with the child. The mother also filed Notice of Risk of Child Abuse alleging that the father had been sexually inappropriate with the child. Interim Orders were made on the 21 March 2002 for the father to have supervised contact with the child. On 25 February 2002 the father filed a Contravention Application, which was withdrawn by him in March 2002. On 20 August 2002 an Expert Report was provided by Dr R. The mother’s application proceeded to a Defended Hearing in October 2002. However, during the course of the hearing the parties reached agreement and final consent orders were made on 15 October 2002 which provided that the child live with her mother and have contact with her father.

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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