Farrelly and Farrelly

FEDERAL CIRCUIT COURT OF AUSTRALIA

FARRELLY & FARRELLY [2017] FCCA 2472

Catchwords:
FAMILY LAW – Parenting where final parenting orders were made by consent on 30 November 2016 – consideration as to whether there were changed circumstances to justify a new hearing – principles in Rice & Asplund (1979) FLC 90-725 discussed – preliminary issue – where best interests of the child is primary consideration – whether change in circumstances is of sufficient significance to justify revisiting the parenting arrangements – application dismissed.

Legislation:

Family Law Act 1975, ss.11F, 69ZT

Cases cited:

CDJ v VAJ  (1998) 197 CLR 172; [1998] HCA 67

CDW v LVE [2015] WASCA 247

King & Finneran (2001) FLC 93-079

Marsden & Winch [2009] FamCAFC 152
Miller & Harrington (2008) FLC 93-383

Poisat & Poisat [2014] FamCAFC 128

Reid & Lynch [2010] FamCAFC 184

Rice & Asplund (1979) FLC 90-725

Applicant: MS FARRELLY

Respondent: MR FARRELLY

File Number: SYC 7060 of 2014

Judgment of: Judge Obradovic

Hearing date: 10 October 2017

Date of Last Submission: 10 October 2017

Delivered at: Parramatta

Delivered on: 19 October 2017

REPRESENTATION

Counsel for the Applicant: Ms Cantrall

Solicitors for the Applicant: Mcw Lawyers

Counsel for the Respondent: Mr Maddox

Solicitors for the Respondent: Mark Brown & Associates

ORDERS

1. The Amended Initiating Application filed 3 March 2017 is dismissed.

2. Remove all outstanding issues from the list of cases awaiting finalisation.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYC 7060 of 2014

MS FARRELLY

Applicant

And

MR FARRELLY

Respondent

REASONS FOR JUDGMENT

Introduction

1. On 30 November 2016 with consent of the parties, the Court made final parenting orders with respect to the only child of the parties X, born on (omitted) 2008 (“Final Orders”).

2. Pursuant to the Final Orders, X lives with the mother eight nights per fortnight and with the father six nights per fortnight during the school term.

3. On 15 February 2017, less than 3 months after Final Orders were made, the mother filed an Initiating Application seeking parenting orders different to the Final Orders. That application was amended on 3 March 2017, when the mother filed an Amended Initiating Application. 

4. The matter proceeded on the basis that there was a threshold issue for the Court to determine,[1] that threshold issue being whether the mother’s Amended Initiating Application filed 3 March 2017 is to be dismissed pursuant to the principles in Rice v Asplund.[2]

   [1] See for example Miller & Harrington (2008) FLC 93-383 at [72] where the Full Court said that the rule in Rice and Asplund might be applied either at a preliminary stage or at another stage of parenting proceedings

   [2] (1979) FLC 90-725

5. The mother, inter alia, relied upon the Child Inclusive Child Dispute Conference Memorandum to the Court dated 9 September 2016. However, during closing arguments, it was submitted on behalf of the mother that…