Fishwick & Bradwell
[2022] FedCFamC1F 710
Federal Circuit and Family Court of Australia
(DIVISION 1)
Fishwick & Bradwell [2022] FedCFamC1F 710
File number(s): NCC 3499 of 2020 Judgment of: SMITH J Date of judgment: 9 September 2022 Catchwords: FAMILY LAW – Parenting – Rice & Asplund - Where the Applicant withdrew their Application and is dismissed Legislation: Family Law Act 1975 (Cth) Cases cited: Rice & Asplund [1978] FamCA 84 Division: Division 1 First Instance Number of paragraphs: 9 Date of hearing: 9 September 2022 Place: Newcastle Solicitor Advocate for the Applicant: Ms Rutkowska Solicitor for the Applicant: Ark Law Lawyers Solicitor for the First Respondent: Litigant in Person Solicitor Advocate for the Second and Third Respondents: Mr Wooi Solicitor for the Second and Third Respondents: Wooi Legal Counsel for the Fourth Respondent: Mr Anderson Solicitor for the Fourth Respondent: Crown Solicitors Office ORDERS
NCC 3499 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS FISHWICK
Applicant
AND: MR BRADWELL
First Respondent
MS B BRADWELL
Second Respondent
MR C BRADWELL (and another named in the Schedule)
Third Respondent
order made by:
SMITH J
DATE OF ORDER:
9 SEPTEMBER 2022
THE COURT ORDERS THAT:
1.The Amended Initiating Application filed 28 February 2022 is withdrawn and is dismissed.
2.No order as to costs.
3.The matter be removed from the list of matters awaiting finalisation and all future listing dates be vacated.
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 the pseudonym Fishwick & Bradwell has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
SMITH J:
These are short oral reasons for decision in respect of a defended hearing that had been listed before me today about whether or not there had been sufficient changes in circumstances to warrant a reopening of parenting proceedings in relation to X, born in 2008 and presently 14 years of age.
The parties to the proceedings are: the Applicant, Ms Fishwick, who is X’s mother; and, the First Respondent, Mr Bradwell, who is his father, but who has not taken part in the proceedings and does not appear today and in whose absence I consider it appropriate to proceed; and the Second and Third Respondents Ms B Bradwell and Mr C Bradwell who are the paternal grandparents; and, the Fourth Respondent, the Secretary of the Department of Communities and Justice.
There are orders in place pursuant to a decision of her Honour Justice Cleary which was published on 21 March 2012, just over ten years ago. At that time X was just four. The reasons are set out in that decision and I need not restate them here.
Because of certain events that occurred the mother filed, on 23 September 2020, an Initiating Application seeking to revisit those orders. The matter came before me today based on her Amended Initiating Application of 28 February 2022.
Her Application, which was to vary the orders which in effect give parental responsibility to the grandparents and to the Department, and also to vary where X lives which is with the paternal grandparents, was opposed by both the paternal grandparents and the Secretary.
The Secretary had filed an Application in a Proceeding together with their Amended Response seeking to have the matter listed for hearing for a preliminary determination of whether the matter should proceed to a final hearing noting the principles in Rice & Asplund and this is before me today.
I have had the opportunity prior to today, thanks to the assistance provided by the Department and their provision of very detailed court books containing all parties’ materials, to consider all the material that was sought to be relied upon. The mother, who has now obtained a solicitor who is extremely experienced in this field, indicated during the course of the day that she no longer presses her application. I wish to indicate that I think that is a very sensible and prudent approach as it would have been extremely difficult, to say the least, for the mother to succeed on the application before me on the evidence here today.
It is certainly my hope that the paternal grandparents, the Department, and the mother can work together, as I understand they have at various times in the past, to facilitate a relationship between X and the mother in a way that is safe for X. I congratulate the parties on sensibly resolving this matter.
I also note that, quite fairly and appropriately, neither the Department nor the paternal grandparents seeks costs, so each party will bear their own costs. In those circumstances I will enter orders that dismiss the mother’s Application and note that therefore the existing orders continue.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Smith. Associate:
Dated: 9 September 2022
SCHEDULE OF PARTIES
NCC 3499 of 2020 Respondents
Fourth Respondent:
SECRETARY, DEPARTMENT OF COMMUNITIES AND JUSTICE
0
0
0