Daniel and Fulton - [2018] FamCA 39

FAMILY COURT OF AUSTRALIA

DANIEL & FULTON

[2018] FamCA 39

FAMILY LAW – CHILDREN – Where final parenting orders were made in October 2016 – Where both parties apply for those final orders to be discharged and different orders be made – Where the Independent Children’s Lawyer seeks that both applications be dismissed as the parameters of the dispute appear to be a replica of what was in dispute at the final hearing and should not be traversed again – Where the threshold test in Rice & Asplund (1979) FLC 90-725 needs to be satisfied before either parties’ application can be entertained – Where the father points to behaviours by the mother which emanate from her genuine belief that the child has been sexually abused and is at risk of future sexual abuse at the hands of the father – Where the rule in Rice & Asplund is a manifestation of the best interests principle and the fundamental question is whether or not it is in the child’s best interests to embark upon another final parenting hearing – Where nothing raised by either party demonstrates a significant change in the circumstances explored in the earlier final hearing that would lead to the conclusion that it was in the child’s best interests to embark upon another parenting hearing.

Family Law Act 1975 (Cth)

CDW v LVE [2015] WASCA 247
Marsden v Winch (2009) 42 Fam LR 1
Rice & Asplund (1979) FLC 90-725
SPS and PLS (2008) FLC 93-363
Walter & Walter [2016] FamCAFC 56

APPLICANT:

Mr Daniel

RESPONDENT:

Ms Fulton

INDEPENDENT CHILDREN’S LAWYER:

Ms Luke

FILE NUMBER:

WOC

780

2017

DATE DELIVERED:

2 February 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

18 December 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Aboriginal Legal Service

SOLICITOR FOR THE RESPONDENT:

Litigant in person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Lukes Law

Orders

The father’s Application filed 20 July 2017 is dismissed.
The mother’s Response filed 13 October 2017 is dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: WOC 780 of 2017

Mr Daniel

Applicant

And

Ms Fulton

Respondent

REASONS FOR JUDGMENT

A final hearing for parenting orders in relation to the parties’ child, B (“the child”), born in 2011 aged six was held between 7 March 2016 and 11 March 2016. There was an additional hearing on 12 October 2016 when the mother retained the child…

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 Daniel and Fulton

Details

AGLC: Daniel and Fulton [2018] FamCA 39
Case: [2018] FamCA 39
Decision Date: 2 February 2018

CaseChat Overview and Summary

In the matter of *Daniel and Fulton*, heard before Watts J, the court considered applications made by both the father and the mother concerning their child. The specific nature of the dispute, beyond the fact that it involved applications by both parents, is not detailed in the provided text.

The central legal issues before the court were the determination of the applications made by each parent. The court was required to adjudicate on the merits of the father's application filed on 20 July 2017 and the mother's response filed on 13 October 2017.

Watts J dismissed both the father's application and the mother's response. The reasoning behind this dismissal is not elaborated upon in the provided extract. The court's final orders reflect this dismissal of both parties' respective applications.

Orders

Orders of the court

The father’s Application filed 20 July 2017 is dismissed.

The mother’s Response filed 13 October 2017 is dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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