Dunleavy & Reardon - [2023] FedCFamC2F 803

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Dunleavy & Reardon [2023] FedCFamC2F 803

File number(s): PAC 5954 of 2022

Judgment of: JUDGE MURDOCH

Date of judgment: 30 June 2023

Catchwords: FAMILY LAW – PARENTING - Rice v Asplund – Where the father’s application seeks to discharge final parenting orders made by consent two years prior and increase the time the children spend with him from three nights and four afternoons a week to six overnights a fortnight – Where the mother seeks a dismissal of the father’s application - Where there has been some difficulties between the parties subsequent to the making of the orders but the father has not satisfied the criteria imposed by Rice v Asplund - Application dismissed – Order that the father pay the mother’s costs in a fixed sum.

Legislation:
Family Law Act 1975 (Cth) s 117

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 rr 12.13(4), 12.17

Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 (Cth) Schedule 1

Cases cited:
Byrnes v Brisconnections Management Co Ltd (No 2) [2009] FCA 1432

Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225

Edwards v Edwards (2006) FLC 93 – 306

Hadaway & Beckham [2019] FamCAFC 137

Lenova & Lenova (Costs) [2011] FamCAFC 141

Penfold & Penfold (1980) FLC 90-800; [1980] HCA 4

Poisat & Poisat [2014] FamCAFC 128

Marsden v Winch (2009) FamCAFC 152

Rice v Asplund (1979) FLC 90 – 725

Searson & Searson (2017) FLC 90-725

SPS & PLS (2008) FLC 93 – 363

Division: Division 2 Family Law

Number of paragraphs: 65

Date of hearing: 23 June 2023

Place: Parramatta

Counsel for the Applicant: Ms Hayward

Solicitor for the Applicant: Karen L Haga & Associates

Solicitor for the Respondent: Ms Godden of Godden Lawyers

ORDERS

PAC 5954 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR DUNLEAVY
Applicant

AND:
MS REARDON
Respondent

order made by:

JUDGE MURDOCH

DATE OF ORDER:

30 jUNE 2023

THE COURT ORDERS THAT:
1.The Initiating Application filed on 28 October 2022 is dismissed.
2.The Response filed on 29 November 2022 is dismissed.
3.Within 28 days the Applicant shall pay the Respondent’s costs of and incidental to the proceedings fixed in the sum of $6,546.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under…

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 Dunleavy & Reardon

Details

AGLC: Dunleavy & Reardon [2023] FedCFamC2F 803
Case: [2023] FedCFamC2F 803
Decision Date

CaseChat Overview and Summary

The father, Mr Dunleavy, filed an application to vary final parenting orders made by consent two years prior. The parenting orders provided that the children live with the mother and spend substantial time with the father. The father sought to increase the time the children spend with him from three nights and four afternoons a week to six overnights a fortnight. The mother, Ms Reardon, opposed the application and sought its dismissal. The matter was heard by Judge Murdoch on 23 June 2023 and judgement was reserved. The father's application to re-litigate parenting issues will be dismissed. The court found that there has been some difficulties between the parties subsequent to the making of the current orders, however, the father had not satisfied the criteria imposed by Rice v Asplund to permit his prosecution of these fresh proceedings. The court further found that even if the father had established a material change in circumstances, it would not be in the best interests of the children to be engaged in the process of litigation. The father's application was dismissed and an order was made for the father to pay the mother's costs in a fixed sum of $6,546.

Orders