Dacomb & Paddison - [2022] FedCFamC2F 262

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Dacomb & Paddison [2022] FedCFamC2F 262

File number(s): MLC 4791 of 2019

Judgment of: JUDGE KIRTON

Date of judgment: 17 March 2022

Catchwords: FAMILY LAW – Parenting – application for review – consideration – where the father seeks variation of shared care arrangements – consideration of Rice and Asplund – whether a variation of the shared care arrangements is in the best interest of the child – application for review dismissed – previous parenting arrangements affirmed – consideration of costs – the father to pay the mother’s costs – the independent children’s lawyer’s costs reserved.

Legislation:
Disability Discrimination Act 1992 (Cth), s 4

Family Law Act 1975 (Cth), ss 60CA, 60CC, 117

FederalCircuit and Family Court of Australia Act2021 (Cth), s 254

Federal Circuit and Family Court (Family Law) Rules 2021 (Cth), r 14.05, r 14.07, Schedule 4

Cases cited:
Edwards and Edwards (2006) FLC 93-306; [2006] FamCA 1230

Elimi & Munro [2019] FamCAFC 138

Goode & Goode [2006] FamCA 1346

In the marriage of Rice and Asplund (1979) FLC 90-725; [1978] FamCAFC

Keats & Keats [2016] FamCAFC 156

Poisat and Poisat (2014) FLC 93-597; [2014] FamCAFC 84

Division: Division 2 Family Law

Number of paragraphs: 152

Date of last submission/s: 28 February 2022

Date of hearing: 28 February 2022

Place: Melbourne

Counsel for the Applicant Self-represented

Counsel for the Respondent: Mr Harvey

Solicitor for the Respondent: Respect Family Lawyers

Counsel for the Independent Children's Lawyer: Mr Leeton

Counsel for the Independent Children's Lawyer: Victoria Legal Aid
ORDERS

MLC 4791 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR DACOMB
Applicant

AND:
MS PADDISON
Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE KIRTON

DATE OF ORDER:

17 MARCH 2022

THE COURT ORDERS THAT:
1.The Orders made by the Senior Judicial Registrar on 10 December 2021 are affirmed.
2.The Application for Review filed by the Father on 17 December 2021 (Application for Review) be dismissed.
3.The Father pay the Mother’s costs of and incidental to the Application for Review.
4.The Independent Children’s Lawyer’s costs of and incidental to the Application for Review are reserved.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Dacomb & Paddison has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR…

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 Dacomb & Paddison

Details

AGLC: Dacomb & Paddison [2022] FedCFamC2F 262
Case: [2022] FedCFamC2F 262
Decision Date

CaseChat Overview and Summary

In the matter of Dacomb & Paddison the Federal Circuit and Family Court of Australia dismissed the father's Application for Review. The father had sought a variation of shared care arrangements, including that his daughter be returned to his care. The court dismissed the father's Application for Review and affirmed the Senior Judicial Registrar's Orders of 10 December 2021. The Senior Judicial Registrar's Orders had suspended the father's time with the child until he returned to Australia and had ordered that the child be returned to the sole care of the mother. The court considered the matter de novo and determined that the father had not satisfied the threshold in Rice and Asplund for a reconsideration of the final parenting orders. The court found that there had been a substantial change in circumstances since the final parenting orders were made and that it was in the child's best interests for the orders to be reconsidered after the father returned to Australia. The mother was ordered to pay her legal costs and the independent children's lawyer's costs were reserved.

Orders