Errington and Samuels and Ors

FAMILY COURT OF AUSTRALIA

ERRINGTON & SAMUELS AND ORS [2011] FamCA 98

FAMILY LAW - CHILDREN – Lengthy hearing in 2007 – application for dismissal – relying on principles set out in Rice & Asplund – proceedings summarily dismissed

Family Law Act 1975 (Cth)

Rice v Asplund (1979) FLC 90-725

Wickam v Jones [2010] FamCA 837

APPLICANT MOTHER Ms Errington

FIRST RESPONDENT FATHER Mr Samuels

SECOND RESPONDENT GRANDFATHER Mr Samuels Snr

THIRD RESPONDENT GRANDMOTHER Mrs Samuels

FILE NUMBER: HBC 284 of 2009

DATE DELIVERED: 25 February 2011

PLACE DELIVERED: Launceston

PLACE HEARD: Hobart

JUDGMENT OF: Benjamin J

HEARING DATE: 2 February 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

COUNSEL FOR THE FIRST RESPONDENT: Mr Turnbull

SOLICITOR FOR THE FIRST RESPONDENT: Ogilvie Jennings

COUNSEL FOR SECOND RESPONDENT: In person

COUNSEL FOR THIRD RESPONDENT: In person

Orders

1. All pending applications between the parties are dismissed.

2. This matter be removed from the list of cases requiring determination.

   IT IS CERTIFIED

3. Pursuant to Rule 19.50 of the Family Law Rules 2004, it was reasonable to engage counsel to attend.

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

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: HBC: 284 of 2009

Ms Errington

Applicant

And

Mr Samuels

First Respondent

And

Mr Samuels Snr

Second Respondent Grandfather

And

Mrs Samuels

Third Respondent Grandmother

REASONS FOR JUDGMENT

INTRODUCTION

1. Ms Errington (“the mother”) filed an application in the Federal Magistrates Court in Lismore on 2 August 2010 seeking an order that K (“the child”) (who at the date of this hearing was aged about twelve and a half) live with her at her then address in northern New South Wales and that there be no restrictions upon which State the mother’s address is located within.  The mother now lives in South East Queensland and wants the child to live with her at that address.

2. The child has been living in Tasmania with his paternal grandparents, Mr and Mrs Samuels (“the paternal grandfather and paternal grandmother”), since an order was made by Mushin J in June 2007.  The child’s father, Mr Samuels Jnr (“the father”), lives close to his parents and spends regular time with the child.  The respondents all oppose the orders sought by the mother.  They want the child to continue living with his grandparents in Tasmania.

3. The proceedings were transferred from the Federal Magistrates Court in Lismore to the Family Court, Hobart Registry.

4. The paternal grandparents and the father sought an order that the proceedings commenced by the mother be dismissed pursuant to the principles set out in Rice v Asplund (1979) FLC 90-725.

5. That application for dismissal was heard by me at Hobart on 2 February 2011.  The mother and the paternal grandparents were self-represented, the father was represented by Mr Turnbull of counsel.

BACKGROUND

1. The mother is aged 30 and now lives in X which is apparently a quiet town on the…