Deere and Blight

[2017] FCCA 3354

FEDERAL CIRCUIT COURT OF AUSTRALIA

DEERE & BLIGHT [2017] FCCA 3354

Catchwords:
FAMILY LAW – Parenting – leave to re-open parenting proceedings – Rice & Asplund.

Legislation:

Family Law Act 1975

Cases cited:

Farrelly & Farrelly [2017] FCCA 2472

King & Finneran [2001] FamCA 344

Marsden & Winch [2009] FamCAFC 152

Rice & Asplund [1978] FamCA 84

SPS & PLS [2008] FamCAFC 16
Searson & Searson [2017] FamCACF 119

Applicant: MS DEERE

Respondent: MR BLIGHT

File Number: SYC 3714 of 2017

Judgment of: Judge Henderson

Hearing date: 18 December 2017

Date of Last Submission: 18 December 2017

Delivered at: Sydney

Delivered on: 18 December 2017

REPRESENTATION

Counsel for the Applicant: Ms Eldershaw

Solicitors for the Applicant: Broun Abrahams Burreket

Counsel for the Respondent: Mr Levy

Solicitors for the Respondent: York Law Family Law Specialists

Counsel for the Independent Children's Lawyer: Mr Blumberg

Solicitors for the Independent Children's Lawyer: Blackman Legal

ORDERS

1. The application made by the applicant mother to re-litigate and reopen the parenting matter is granted.

2. The matter is listed for mention on 30 April 2018 at 09:30am.

3. Both parents are at liberty to telephone the child when he is residing at the other parent’s home whenever they choose to do so.

4. Each party shall facilitate the child contacting the other parent whilst he’s not in their care on any occasion he deems appropriate.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 3714 of 2017

MS DEERE

Applicant

And

MR BLIGHT

Respondent

REASONS FOR JUDGMENT

1. This is an interim decision in the matter of Deere & Blight.

2. The mother seeks to reopen parenting proceedings in relation to the parties’ son, X born on (omitted) 2009. The orders were made by consent in 2012, some five years ago, when X was two. He is now eight.

3. The orders were comprehensive and sought to deal with X’s parenting post him attending big school when he was of age. The father opposes the reopening. The Independent Children’s Lawyer supports the reopening.

4. The father asserts that the mother has not discharged the onus to satisfy the Court that the circumstances of the child have so changed, or significantly changed, such that the Court would reopen final parenting orders. In other words, the Rice & Asplund[1] argument.

   [1] Rice & Asplund [1978] FamCA 84.

5. Ms Eldershaw, of counsel, acted for the mother. Mr Levy, of counsel, for the father. Mr Blumberg for the Independent Children’s Lawyer.

6. The material I read as follows:

   a)For the mother:

   i)Amended initiating application filed 11 December 2017;

   ii)Affidavits of 17 November and 20 November;

   iii)Affidavit of Ms I, X’s former treating psychologist filed 9 November;

   iv)Affidavit of her husband, Mr J, filed 20 November 2017;

   v)A case outline produced by her lawyer.

   b)For the father:

   i)Affidavit of 20 November 2017;

   ii)Affidavit of his mother, Ms H, 20 November 2017;

   iii)Response…