DL & W

Case [2012] FamCAFC 5


FAMILY COURT OF AUSTRALIA

DL & W [2012] FamCAFC 5

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.

Family Law Act 1975 (Cth)

Bennett and Bennett (1991) FLC 92-191

B & J [2009] FamCAFC 103
Caracini & Paglietta [2009] FamCAFC 188
CDJ v VAJ (1998) 197 CLR 172
Freeman and Freeman (1987) FLC 91-857
Goode and Goode (2006) FLC 93-286
Gotch & Gotch [2009] FamCAFC 3
Gronow v Gronow (1979) 144 CLR 513
House v The King (1936) 55 CLR 499
King and Finneran (2001) FLC 93-079
Marsden v Winch (2009) 42 Fam LR 1
McEnearney and McEnearney (1980) FLC 90-866
Miller & Harrington (2008) FLC 93-383
Reid & Lynch (2010) FLC 93-448
Rice and Asplund (1979) FLC 90-725
SPS and PLS (2008) FLC 93-363
Zabaneh and Zabaneh (1986) FLC 91-766

APPELLANT: Mr DL
RESPONDENT: Ms W
FILE NUMBER: MLC 9895 of 2009
APPEAL NUMBER: SA 97 of 2010
PLACE DELIVERED: Perth
PLACE HEARD: Melbourne
JUDGMENT OF: May, Thackray and Strickland JJ
HEARING DATE: 29 July 2011
LOWER COURT JURISDICTION: Federal Magistrates Court
LOWER COURT JUDGMENT DATE: 1 December 2010
LOWER COURT MNC: [2010] FMCAfam 1345

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Hault
SOLICITOR FOR THE APPELLANT: Hall & Wilcox
COUNSEL FOR THE RESPONDENT: Mr Puckey
SOLICITOR FOR THE RESPONDENT: T J Mulvany & Co

Orders

  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.

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

  1. This is the father’s appeal against an order of Federal Magistrate Hughes made on 1 December 2010 dismissing his application for parenting orders. 

  2. The father had sought a…

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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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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