Fisher & Fisher (No 2) - [2023] FedCFamC1F 1046

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Fisher & Fisher (No 2) [2023] FedCFamC1F 1046

File number(s): CSC 191 of 2019

Judgment of: JARRETT J

Date of judgment: 8 December 2023

Catchwords: FAMILY LAW – PARENTING – Application to vary parenting orders – Final orders restrained the applicant from relocating out of the City B area – Applicant held no intention to relocate at time of trial – Applicant subsequently formed intention to relocate to City J – Change of circumstances established – Change of circumstances not material – Application dismissed

Legislation:
Family Law Act 1975 (Cth) s 62G(2)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 8.15(3)(e)

Cases cited:
Defrey & Radnor [2021] FamCAFC 67

Fisher & Fisher [2022] FedCFamC1F 921

Marsden v Winch (2009) 42 Fam LR 1,[58]

Miller & Harrington (2008) FLC 93-383, [105]

Rader & Haines (No 2) [2023] FedCFamC1A 115, [62]

Rice & Asplund (1979) FLC 90-725

SPS and PLS (2008) FLC 93-363, [81]; [84]

The Marriage of D & Y (1995) FLC 92-581

U & U (2002) 29 Fam LR 74, [176]

Division: Division 1 First Instance

Number of paragraphs: 31

Date of hearing: 17 November 2023

Place: Brisbane

Counsel for the Applicant: Ms Musumeci

Solicitors for the Applicant: Strategic Lawyers

Solicitors for the Respondent: Litigant in person

ORDERS

CSC 191 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS FISHER

Applicant

AND:
MR FISHER

Respondent

ORDER MADE BY:

JARRETT J

DATE OF ORDER:

8 DECEMBER 2023

THE COURT ORDERS THAT:
1.The application filed on 21 April, 2023 is dismissed.
2.Counsel and solicitor for the applicant who appeared on 17 November, 2023 must appear before the court at 9.30am on 19 December, 2023 and may make submissions they see fit concerning the matter raised in paragraph [31] of the reasons for judgment delivered on 8 December, 2023.

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 a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JARRETT J:

On 2 December, 2022 Baumann J made final parenting and property adjustment orders between these parties following a five-day hearing: Fisher & Fisher [2022] FedCFamC1F 921. The parenting orders concerned their children, X (now 13 years of age) and Y (now 12 years of age).…

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.

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Details

Case: [2023] FedCFamC1F 1046
Decision Date: 8 December 2023

CaseChat Overview and Summary

In the matter of Fisher & Fisher (No 2), Ms Fisher applied to vary parenting orders that restrained her from relocating out of the City B area. Mr Fisher opposed the application. The application was heard by Jarrett J in the Family Court of Australia, Division 1. Ms Fisher sought to vary the parenting orders to allow her to relocate to City J. The central legal issue before the court was whether there had been a material change of circumstances since the original orders were made that warranted a variation of the parenting orders. A secondary issue was whether any such change was material enough to justify altering the parenting arrangements.

The court found that Ms Fisher had established a change of circumstances by demonstrating her intention to relocate to City J. However, the court determined that the change was not material enough to warrant a variation of the existing parenting orders. The court considered several factors, including the impact of the relocation on the children, the quality of the relationship between the children and each parent, and the practicality and feasibility of maintaining a meaningful relationship between the children and the non-relocating parent. The court concluded that the proposed relocation would not significantly benefit the children and would potentially harm their relationship with the non-relocating parent. Consequently, the court dismissed the application and made orders requiring the applicant's counsel and solicitor to make submissions on a specific matter raised in the reasons for judgment.

Orders

Orders of the court

CSC 191 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS FISHER

Applicant

AND:

MR FISHER

Respondent

ORDER MADE BY:

JARRETT J

DATE OF ORDER:

8 DECEMBER 2023

THE COURT ORDERS THAT:

1. The application filed on 21 April, 2023 is dismissed.

2. Counsel and solicitor for the applicant who appeared on 17 November, 2023 must appear before the court at 9.30am on 19 December, 2023 and may make submissions they see fit concerning the matter raised in paragraph [31] of the reasons for judgment delivered on 8 December, 2023.

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	CSC 191 of 2019
Judgment of:	JARRETT J
Date of judgment:	8 December 2023
Catchwords:	FAMILY LAW – PARENTING – Application to vary parenting orders – Final orders restrained the applicant from relocating out of the City B area – Applicant held no intention to relocate at time of trial – Applicant subsequently formed intention to relocate to City J – Change of circumstances established – Change of circumstances not material – Application dismissed
Legislation:	Family Law Act 1975 (Cth) s 62G(2) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 8.15(3)(e)
Cases cited:	Defrey & Radnor [2021] FamCAFC 67 Fisher & Fisher [2022] FedCFamC1F 921 Marsden v Winch (2009) 42 Fam LR 1,[58] Miller & Harrington (2008) FLC 93-383, [105] Rader & Haines (No 2) [2023] FedCFamC1A 115, [62] Rice & Asplund (1979) FLC 90-725 SPS and PLS (2008) FLC 93-363, [81]; [84] The Marriage of D & Y (1995) FLC 92-581 U & U (2002) 29 Fam LR 74, [176]
Division:	Division 1 First Instance
Number of paragraphs:	31
Date of hearing:	17 November 2023
Place:	Brisbane
Counsel for the Applicant:	Ms Musumeci
Solicitors for the Applicant:	Strategic Lawyers
Solicitors for the Respondent:	Litigant in person

CSC 191 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS FISHER Applicant
AND:	MR FISHER Respondent

ORDER MADE BY:	JARRETT J
DATE OF ORDER:	8 DECEMBER 2023