FEDERAL CIRCUIT COURT OF AUSTRALIA
ELMI & MUNRO
[2018] FCCA 3114
Catchwords:
FAMILY LAW – Parenting – five day trial in 2012 before Family Court resulting in complex orders – father applying for alteration to those orders – significant intervening litigation – father wanting change of orders – no evidence that the desired new orders were based on materially changed circumstances – review of authorities on finality of litigation.
RES JUDICATA ESTOPPEL – Circumstances in which doctrine arises – evidence relevant to doctrine.
SO CALLED RULE IN RICE AND ASPLUND – When relevant – when arises – evidence required to invoke – whether the “rule” displaces 400 years of common law and equity learning on res judicata estoppel – discussion.
Legislation:
Family Law Act 1975, s.60CC(3)
Cases cited:
Administration of the Territory of Papua New Guinea v Daera Guba (1973) 130 CLR 353
AMF15 v Minister for Immigration and Border Protection [2016] FCAFC 68
Blair v Curran (1939) 62 CLR 464
Burrell v R (2008) 238 CLR 218
Commonwealth v Spencer (2010) 241 CLR 118
Cox v Dublin City Distillery Co Ltd (No 3) [1917] 1 IR 203
D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1
DJL v Central Authority (2000) 201 CLR 226
Duffield v Scott (1789) 3 Term Rep 374
Ferrer v Arden (1599) 6 Co Rep 7
Green v Weatherill [1929] 2 Ch 213
Hannaford v Hunn (1825) 2 C & P 148
Holland v Clark (1842) 1 Y & CCh Cas 151
Hoysted v Federal Commissioner of Taxation (1925) 37 CLR 290
In the Marriage of Rice v Asplund (1978) FLC 90-725
Irish Land Commission v Ryan [1900] 2 IR 565
Jackson v Goldsmith (1950) 81 CLR 446
Lindon v Commonwealth of Australia (No 2) (1996) 70 ALJR 541
New Brunswick Railway Co v British and French Trust Corporation Ltd [1939] AC 1
Outram v Morewood (1803) 3 East 346
R v Hutchings (1881) 6 QBD 300
Re May (1885) 28 Ch D 516
Re Surfleet’s Estate; Rawlings v Smith (1911) 105 LT 582
The Ampthill Peerage [1976] All ER 411
Other materials:
Handley, K R, Spencer Bower and Handley, res judicata (LexisNexis, 4th ed, 2009)
Applicant:
MR ELMI
Respondent:
MS MUNRO
File Number:
MLC 9529 of 2018
Judgment of:
His Honour Judge Wilson
Hearing date:
4 October 2018
Date of Last Submission:
4 October 2018
Delivered at:
Melbourne
Delivered on:
1 November 2018
REPRESENTATION
Counsel for the Applicant:
Mr G Holmes
Solicitors for the Applicant:
Schetzer Constantinou
Counsel for the Respondent:
Mr R Hoult
Solicitors for the Respondent:
Howard Bear Legal Consulting Services
I ORDER the application filed on 17 August 2018 is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Elmi & Munro is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT Melbourne
MLC 9529 of 2018
MR ELMI
Applicant
And
MS MUNRO
Respondent
REASONS FOR JUDGMENT
Introduction
1. Following…
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CaseChat Overview and Summary
The central legal issues before the Court were whether the father had demonstrated materially changed circumstances justifying a variation of the existing orders, and the application of the doctrines of *res judicata* and issue estoppel, including consideration of the principles discussed in *Rice v Asplund*.
His Honour Judge Wilson dismissed the father's application, finding no evidence that the proposed new orders were necessitated by materially changed circumstances. The Court reviewed authorities concerning the finality of litigation and the circumstances in which *res judicata* and issue estoppel arise, noting that these principles are not displaced by the so-called "rule in Rice and Asplund". The Court concluded that the existing orders should stand.
Orders
Orders of the court
I ORDER the application filed on 17 August 2018 is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Elmi & Munro is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
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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