Gerardine and Coulter - [2013] FamCA 85

FAMILY COURT OF AUSTRALIA

GERARDINE & COULTER

[2013] FamCA 85

FAMILY LAW – ORDERS – Application to vary previous consent orders

Family Law Act 1975 (Cth)

Lindon v The Commonwealth of Australia (No 2) [1996] HCA 14; (1996) 70 ALJR 541
Mann & Prewett [2009] FamCA 929
Miller and Harrington [2008] FamCAFC 150
Rice v Asplund (1979) FLC 90-725
SPS and PLS [2008] FamCAFC 16, (2008) FLC 93-363

APPLICANT:

Mr Gerardine

RESPONDENT:

Ms Coulter

FILE NUMBER:

MLC

557

2011

DATE DELIVERED:

14 January 2013

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

19 October 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Bartfeld QC with Ms Vohra

SOLICITOR FOR THE APPLICANT:

Taussig Cherrie Fildes

COUNSEL FOR THE RESPONDENT:

Mr Schonell SC

SOLICITOR FOR THE RESPONDENT:

Pure Legal Lawyers

Orders

That the initiating application of the husband filed on 11 July 2012 (as amended on 20 September 2012) together with the response of the wife thereto filed 30 July 2012 are transferred to the Sydney Registry of the Family Court of Australia for listing on a date to be fixed by the registrar.
That the application in a case filed by the wife on 2 August 2012 and any response thereto by the husband are dismissed.

IT IS CERTIFIED:

That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel, including senior counsel to attend.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Gerardine & Coulter has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 557 of 2011

Mr Gerardine

Applicant

And

Ms Coulter

Respondent

REASONS FOR JUDGMENT

On 13 July 2011, final parenting orders were made between the parties in the Federal Magistrates Court. Those orders were made at the request of, and with the consent of, the parties. The matter finalised part of the way through the contested hearing at which both were represented by senior legal practitioners.
A year later, the husband has sought to vary the orders not only in a significant way but on the face it, to re-run the case that he initially presented and wanted to run in the Federal Magistrates Court. However, he also now puts forward an alternative proposal but that would also mean a departure from the existing regime.
The wife strongly opposes any alteration of the 2011 orders and seeks a dismissal of the husband’s application before it proceeds further.
Mr Gerardine (the husband) filed this application for substantive parenting orders on 20 September 2012 but it was Ms Coulter (the wife) who brought an interlocutory application on 2 August 2012 not only opposing the application but also seeking its immediate dismissal on the basis of the principles set out in Rice v Asplund (1979) FLC 90-725. In the alternative, the wife sought orders that if the husband’s application was permitted to proceed,…

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.

Continue reading Gerardine and Coulter

Details

AGLC: GERARDINE & COULTER [2013] FamCA 85
Case: [2013] FamCA 85
Decision Date: 14 January 2013

CaseChat Overview and Summary

The matter of *Gerardine and Coulter* concerned an application before Cronin J of the Family Court of Australia. The dispute involved proceedings initiated by the husband on 11 July 2012, which were subsequently amended on 20 September 2012, and a response filed by the wife on 30 July 2012. A separate application in a case was filed by the wife on 2 August 2012, with a response from the husband.

The court was required to determine the appropriate venue for the proceedings initiated by the husband and wife, and whether the wife's subsequent application in a case should be dismissed.

Cronin J ordered that the initiating application of the husband and the wife's response thereto be transferred to the Sydney Registry of the Family Court of Australia for listing. Furthermore, the court dismissed the application in a case filed by the wife on 2 August 2012, along with any response by the husband. The court also certified that it was reasonable to engage counsel, including senior counsel, to attend the proceedings.

Orders

Orders of the court

That the initiating application of the husband filed on 11 July 2012 (as amended on 20 September 2012) together with the response of the wife thereto filed 30 July 2012 are transferred to the Sydney Registry of the Family Court of Australia for listing on a date to be fixed by the registrar.

That the application in a case filed by the wife on 2 August 2012 and any response thereto by the husband are dismissed.

IT IS CERTIFIED:

That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel, including senior counsel to attend.

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.