Gotch and Gotch

[2008] FMCAfam 898

FEDERAL MAGISTRATES COURT OF AUSTRALIA

GOTCH & GOTCH [2008] FMCAfam 898

FAMILY LAW – Final parenting orders – existing orders not varied – no changed circumstance.

Family Law Act 1975, s.60CC(2), 60CC(3), 60CC(4), 60CC(4A)

Rice and Asplund (1979) FLC 90–725
Gotch & Gotch [2006] FMCAfam 769

Applicant: MS GOTCH

Respondent: MR GOTCH

File Number: BRC 5979 of 2007

Judgment of: Turner FM

Hearing date: 11 August 2008

Date of Last Submission: 11 August 2008

Delivered at: Melbourne

Delivered on: 11 August 2008

REPRESENTATION

Counsel for the Applicant: Mr. Turnbull

Solicitors for the Applicant: Berry Family Lawyers

Counsel for the Respondent: Mr. Galloway (by telephone link)

Solicitors for the Respondent: BMLaw Solicitors

ORDERS

1. The application filed 30 June 2008 is dismissed.

2. The applicant pay the costs of the respondent fixed in the sum of $2,200.00 within 28 days.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

BRC 5979 of 2007

MS GOTCH

Applicant

And

MR GOTCH

Respondent

REASONS FOR JUDGMENT

1. The issue before the Court involves what is referred to as the rule in Rice and Asplund (1979) FLC 90–725 being that:

   “a court  should not lightly entertain an application to reverse an earlier custody order… Therefore, the court would need to be satisfied by the applicant… there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material…It is a question of finding that here are circumstances which require the Court to consider afresh how the welfare of the child should be best served.  These principles apply whether the original order is made by consent or after a contested hearing…” (Evatt CJ)

2. The orders of the Court on 16 June 2006 include Order 8:

   “8.  That the father, at his election, may enjoy the contact set out in Order 6(d) and (e) in Australia.”

3. By application filed on 30 June 2008, the applicant mother seeks interim orders including:

   “5.  That paragraph 7(sic “8”) of the Final Orders dated 16 June 2006 be stayed.”

4. The change sought is very significant.

5. In considering the mother’s application to relocate to the United States of America, Federal Magistrate Baumann stated in Gotch & Gotch [2006] FMCAfam 769 at paragraphs 46–49:

   “46. Clearly, the practicalities of exercising contact can present a difficulty.  There is a general lack of evidence of how n the future the financial position of the parties will alter.  For example, although the mother is hopeful, and I think with some degree of confidence, of obtaining worthwhile employment and/or undertaking further studies in the USA, nonetheless her capacity to contribute to air fares would be reduced.

   47.  So fundamental do I believe it, however, to the children having contact with their father, at least in a way which can be guaranteed by a…