Gaston and Sankot-Gaston

FEDERAL MAGISTRATES COURT OF AUSTRALIA

GASTON & SANKOT-GASTON [2009] FMCAfam 478

FAMILY LAW – Parenting orders – preliminary application to dismiss in accordance with Rice & Asplund.

Family Law Act 1975, ss.65D, 65DAA

Rice & Asplund (1979) FLC 90-725
Bennett & Bennett (1991) FLC 92-191
King & Finneran (2001) FLC 93-079
F & C [2004] FamCA 568
CDJ v VAJ (1998) 197 CLR 172
Miller & Harrington [2008] FamCAFC 150
Cortes & Cabrera [2007] FMCAfam 293
SPS & PLS [2008] FamCAFC 16
Archbold & Archbold (1984) FLC 91-532

Applicant: MR GASTON

Respondent: MS SANKOT-GASTON

File Number: BRC 1456 of 2009

Judgment of: Wilson FM

Hearing date: 14 April 2009

Date of Last Submission: 14 April 2009

Delivered at: Brisbane

Delivered on: 18 May 2009

REPRESENTATION

Counsel for the Applicant: N/A

Solicitors for the Applicant: In person

Counsel for the Respondent: N/A

Solicitors for the Respondent: Biggs Fitzgerald Pike

ORDERS

1. The application filed 24 February 2009 is dismissed.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BRC 1456 of 2009

MR GASTON

Applicant

And

MS SANKOT-GASTON

Respondent

REASONS FOR JUDGMENT

1. On 17 June 2002, and again in January 2006, the parents of [X], born [in] 1997, and [Y] born [in] 1999 agreed to parenting orders in respect of their two children.  The father now seeks to have the latter orders discharged, and for alternative parenting orders to be made in their place.  The mother opposes the father’s application, and submits that the father’s application should be dismissed at this early stage of the new proceedings, in accordance with the principle stated in Rice & Asplund (1979) FLC 90-725. I will refer in more detail to the so-called ‘principle’ in due course.

2. By his initiating application, filed 24 February 2009, the father sought interim and final parenting orders, in identical terms.  The father’s proposed orders were:

   (1)That all previous orders or parenting plans be discharged.

   (2)That the parents equally share parental responsibility for long term decision making for the children, [X] born [in] 1997 and [Y] born [in] 1999.

   (3)That notwithstanding the provisions of order 2:-

   (a)The mother shall be responsible for the daily care, welfare and development of the children when they are living with her, and

   (b)The father shall be responsible for the daily care, welfare and development of the children when they are living with him.

   (4)The mother and father shall:-

   (a)Keep the other informed at all times of their residential address and landline telephone numbers;

   (b)Keep the other parent informed of the names and addresses of treating medical or other health practitioners who treat the children, and authorise these practitioners to provide the other parent with information that they are lawfully able to provide about the children;

   (c)Inform the other parent as soon as reasonably practicable of any medical condition, or significant health issue or significant injury suffered by the children.