Fenton and Fenton

[2016] FCCA 3024

FEDERAL CIRCUIT COURT OF AUSTRALIA

FENTON & FENTON [2016] FCCA 3024

Catchwords:
FAMILY LAW – Parenting – two previous defended hearings – change in circumstances – Rice v Asplund principles – application dismissed in that there is no significant or material change in circumstances.

Legislation:

Family Law Act 1975

Cases cited:

Rice v Asplund [1979] FLC 90-725

Cortez v Cabrera [2007] FMCAfam 293@[19]

Applicant: MS FENTON

Respondent: MR FENTON

File Number: HBC 249 of 2010

Judgment of: Judge McGuire

Hearing date: 16 November 2016

Date of Last Submission: 16 November 2016

Delivered at: Hobart

Delivered on: 1 December 2016

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondent: Mr Blissenden

Solicitors for the Respondent: Blissenden Lawyers

ORDERS

1. That the Initiating Application of Ms Fenton filed 7 June 2016 be dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT HOBART

HBC 249 of 2010

MS FENTON

Applicant

And

MR FENTON

Respondent

REASONS FOR JUDGMENT

1. On 7 June 2016 the mother, Ms Fenton, filed an Application seeking parenting orders in respect of the parties three children being X born (omitted) 2002 (aged 14 years), Y born (omitted) 2005 (aged 11 years) and Z born (omitted) 2007 (aged nine years).

2. The mother does not have the benefit of legal representation but has set out her arguments in her affidavit material in a clear and understandable fashion and was articulate in her submissions before me.  The mother has filed a comprehensive affidavit sworn on the 31 October 2016, together with an affidavit filed with her application on 7 June 2016.

3. The respondent is represented by solicitors.  In his response he seeks that the mother’s application be dismissed under the principles in Rice v Asplund[1].  It was agreed, in the circumstances of this matter, that this issue be resolved by way of a preliminary hearing rather than as part of a full trial of the issues. The matter therefore proceeded by way of submissions from the mother and counsel for the respondent father.

   [1] [1979] FLC 90 - 725

Background

1. The parties separated in September 2009 and first began proceedings in this Court in March 2010.

2. On 23rd August 2012 those proceedings were transferred to the Family Court of Australia at Hobart.

3. A two day hearing was conducted before Justice Benjamin in August 2012 and orders were made for the father to have sole parental responsibility for X and the mother to have sole parental responsibility for Y and Z and the children to live with their parents accordingly.

4. In October 2012 the mother surrendered care of Y and Z to the father and relocated herself to Queensland.

5. On 3 October 2012 consent parenting orders were made by Justice Benjamin with the father to have sole parental responsibility for all three children and that those children to live with him. A notation to those orders stated the mother's…