DAUBNEY & JANZEN (No.2)

[2018] FCCA 3335

FEDERAL CIRCUIT COURT OF AUSTRALIA

DAUBNEY & JANZEN (No.2) [2018] FCCA 3335

Catchwords:
FAMILY LAW – Rice v Asplund argument – application to re-open parenting proceedings.

Legislation:

Family Law Act 1975 (Cth), s.117(2)

Cases cited:

Marsden & Winch [2013] FamCAFC 177

Applicant: MS DAUBNEY

Respondent: MR JANZEN

File Number: ROC 635 of 2013

Judgment of: Judge Henderson

Hearing date: 24 October 2018

Date of Last Submission: 24 October 2018

Delivered at: Rockhampton

Delivered on: 24 October 2018

REPRESENTATION

Counsel for the Applicant: Mr Arnold

Solicitors for the Applicant: KJB Law

Counsel for the Respondent: Mr Bunning

Solicitors for the Respondent: Phelan Family Law

ORDERS

1. That the applications filed 16 January 2018 be dismissed.

2. That the application in a case filed 4 September 2018 be dismissed.

3. That the mother pay the father's costs in the sum of twelve thousand and twenty two dollars ($12,022) within twelve (12) months of today’s date.

IT IS NOTED:

1. That if the mother files another application it is to be listed before His Honour Judge Tonkin in Canberra, if possible.

IT IS NOTED that publication of this judgment under the pseudonym Daubney & Janzen (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT TOWNSVILLE

ROC 635 of 2013

MS DAUBNEY

Applicant

And

MR JANZEN

Respondent

REASONS FOR JUDGMENT

1. This is an application in Daubney and Janzen by a mother to reopen the parenting proceedings finalised by consent in May 2017, I think on 22 May 2017.

2. The application is in respect of the children, [X], born 2006 and [Y], born 2008. The children live with their father in Town A. Their mother lives in Canberra.

3. Mr Arnold of Counsel represented the mother who was on the telephone and Mr Bunning of Counsel, the father.

4. The maternal grandmother also seeks leave to intervene in these proceedings if the mother is successful and she and her lawyer, Ms Black, appeared by telephone,

5. The evidence that I read for the parties is as follows:

   a)The mother:

   i)Initiating application filed in Canberra on 16 January 2018;

   ii)Affidavit and Notice of Risk filed the same date; and

   iii)Affidavit filed 2 February 2018.

6. I read the decision of her Honour Judge Tonkin delivered on 2 March 2018.

   a)For the father:

   i)His Response filed 1 February 2018; and

   ii)Notice of Risk and Affidavit filed in Canberra on the same date.

   b)Exhibits:

   i)Father:

   (1)Exhibit 1, a decision of the Full Court in Marsden & Winch[1].

   (2)Exhibit 2, an application completed by the mother when the children were spending holidays with her in January of this year for enrolment in a school in Canberra which document excluded the father’s name from the details and enrolled [X], under her surname of Daubney. This last step is prohibited by the current consent orders.

   ii)For the mother:

   (1)Exhibit 1, the Queensland police records in relation to an interview with [X] and the father arising out of the allegations made by [X] to his mother in January which she…