FAMILY LAW – APPEAL – CHILDREN – Where final parenting orders were made in 2004 in relation to the child – Appeal from the decision of the Federal Magistrate dismissing the father’s application seeking a variation of the 2004 orders upon application of the principles in Rice and Asplund (1979) FLC 90-725 – Whether the Federal Magistrate correctly applied the principles Rice and Asplund – Where a family report was prepared and tendered by consent prior to the Federal Magistrate’s consideration of the Rice and Asplund issue – Once the family report had failed to bring about a negotiated resolution, it was open to the Federal Magistrate to entertain the application for the proceedings to be dismissed – Whether the Federal Magistrate gave inappropriate weight to the family report – Her Honour did not give the family report any more weight than was appropriate – No appellable error found – Appeal dismissed.
FAMILY LAW – APPEAL – COSTS OF THE APPEAL – In circumstances where the father was wholly unsuccessful – Father to pay the mother’s costs of the appeal.
The appellant pay the respondent’s costs of and incidental to the appeal as agreed and in default of agreement, as assessed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym DL & W has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Appeal Number: SA 97 of 2010 File Number: MLC 9895 of 2009
Mr DL
Appellant
And
Ms W
Respondent
REASONS FOR JUDGMENT
Introduction
This is the father’s appeal against an order of Federal Magistrate Hughes made on 1 December 2010 dismissing his application for parenting orders.
The father had sought a…
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.
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Details
AGLC
DL & W [2012] FamCAFC 5
Case
[2012] FamCAFC 5
Decision Date
CaseChat Overview and Summary
In the Federal Circuit and Family Court of Australia, the father appealed a decision of a Federal Magistrate that dismissed his application to vary final parenting orders made in 2004 concerning his child. The father argued that the Federal Magistrate incorrectly applied the principles from Rice and Asplund when dismissing his application. The case involved the interpretation and application of the principles from Rice and Asplund, particularly in the context of a family report prepared prior to the Federal Magistrate’s consideration of the application.
The central legal issue was whether the Federal Magistrate erred in applying the principles from Rice and Asplund and whether she appropriately considered the family report. The court needed to determine if the Federal Magistrate gave inappropriate weight to the family report and whether her decision to dismiss the application was justified. The court found that the Federal Magistrate did not give the family report more weight than was appropriate, and therefore, no error was found in her decision. The court further held that the father, being wholly unsuccessful in his appeal, should pay the mother’s costs of the appeal.
The appeal was dismissed, and the appellant was ordered to pay the respondent's costs of and incidental to the appeal as agreed, or assessed if an agreement could not be reached. The court upheld the decision of the Federal Magistrate, confirming that the principles from Rice and Asplund were correctly applied, and no procedural errors were made in the handling of the case.
Orders
Orders of the court
1.
The appeal be dismissed.
2.
The appellant pay the respondent’s costs of and incidental to the appeal as agreed and in default of agreement, as assessed.