FEDERAL CIRCUIT COURT OF AUSTRALIA
| HADAWAY & BECKHAM | [2018] FCCA 3681 |
| Catchwords: FAMILY LAW – Parenting Orders – Rule in Rice & Asplund – Failure to establish a significant change of circumstance. |
| Legislation: Family Law Act 1975 |
| Cases cited: Rice & Asplund (1979) FLC 90-725 |
| Applicant: | MR HADAWAY |
| Respondent: | MS BECKHAM |
| File Number: | BRC 7341 of 2015 |
| Judgment of: | Judge Lapthorn |
| Hearing date: | 3 May 2018 |
| Date of Last Submission: | 3 May 2018 |
| Delivered at: | Brisbane |
| Delivered on: | 14 December 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Hackett |
| Solicitors for the Applicant: | PPCS Lawyers |
| Counsel for the Respondent: | Dr Brasch QC |
| Solicitors for the Respondent: | Damien Greer Lawyer |
ORDERS
That the Amended Initiating Application filed 28 March 2018 be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Hadaway & Beckham is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRC 7341 of 2015
| MR HADAWAY |
Applicant
And
| MS BECKHAM |
Respondent
REASONS FOR JUDGMENT
Introduction
I am asked to determine an application to set aside final parenting orders made by consent on 11 April 2016 (“the consent orders”) in relation to [X]. [X] was born 2013 and is presently aged 5.
The thrust of the consent orders provide for [X] to live with his mother in Brisbane and spend time with his father at Location A. The parties have equal shared parental responsibility. By his Initiating Application filed 9 February 2018 the father now seeks to have those orders set aside. The mother opposes his application and seeks the application be dismissed.
When the matter came before me on 3 May 2018. I was asked to make a preliminary determination as whether the father had demonstrated a change of circumstance significant enough to warrant a new hearing in accordance with the decision in Rice & Asplund[1].
[1] (1979) FLC 90-725
Throughout this judgment I will refer to the applicant as the father and the respondent as the mother. I mean no disrespect in doing so.
Legal Approach
A Court is usually reluctant to entertain a fresh application for parenting arrangements because it is rarely in a child’s best interest to have ongoing litigation about his or her care and wellbeing. The Full Court of the Family Court in Rice & Asplund held:
The court should not lightly entertain an application to reverse an earlier custody order. It would need to be satisfied by the Applicant that there was some changed circumstance which would justify such a serious step, some new factor arising, or, at any rate, some factor which was not disclosed at the previous hearing which…
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- Hadaway and Beckham [2018] FCCA 3681
- Case
- [2018] FCCA 3681
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CaseChat Overview and Summary
The central legal issue before the court was whether the Amended Initiating Application filed by the applicants on 28 March 2018 should be dismissed. The court was required to determine the merits of this application for dismissal.
Judge Lapthorn ordered that the Amended Initiating Application filed on 28 March 2018 be dismissed. No further reasoning or legal principles applied by the court in reaching this decision are provided in the excerpt.
Orders
Orders of the court
1.
That the Amended Initiating Application filed 28 March 2018 be dismissed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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