HARLAND & HARLAND - [2020] FamCA 321

FAMILY COURT OF AUSTRALIA

HARLAND & HARLAND

[2020] FamCA 321

FAMILY LAW – PARENTING – Rice & Asplund – Where the mother seeks Orders to relocate the child’s residence – Where the father seeks that application be dismissed pursuant to the principles in Rice & Asplund – Where the mother’s proposal would be a significant change in circumstances for the child – Father’s application dismissed.

AMS v AIF (1999) 199 CLR 160
Mahoney & Dieter [2019] FamCAFC 39
Marsden & Winch (2009) 42 Fam LR 1
Rice & Asplund (1979) FLC 90-725

APPLICANT:

Mr Harland

RESPONDENT:

Ms Harland

FILE NUMBER:

SYC

4699

2015

DATE DELIVERED:

4 May 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Rees J

HEARING DATE:

4 May 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Lethbridge SC

SOLICITOR FOR THE APPLICANT:

NLS Law

SOLICITOR FOR THE RESPONDENT:

Mills Oakley

Orders

IT IS ORDERED

That the father’s interim application, contained in his response filed 19 November 2019, be dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 4699 of 2015

Mr Harland

Applicant

And

Ms Harland

Respondent

REASONS FOR JUDGMENT

Mr Harland (“the father”) and Ms Harland (“the mother”) are the parents of X who is aged seven years.
On 30 November 2017, final parenting orders were made by consent which provide for X to live with the mother and to spend time with the father on Wednesday and Thursday evenings in one week and, in the alternate week for the Thursday evening to be extended until school on Monday.
In addition, the orders provide for X to spend half of the school holidays with the father.
On 16 October 2019, the mother filed an application seeking to relocate X’s place of residence from Sydney to Town P.
That application is opposed by the father who, in a response filed 19 November 2019, seeks an order that the mother’s application be dismissed “pursuant to Rice v Asplund”.

THE LAW

The applicant relies on the principle first enunciated by the Full Court in Rice & Asplund (1979) FLC 90-725 where the Court held:
The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To…

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 HARLAND & HARLAND

Details

AGLC: HARLAND & HARLAND [2020] FamCA 321
Case: [2020] FamCA 321
Decision Date: 4 May 2020

CaseChat Overview and Summary

In *Harland & Harland*, heard before Rees J, the father sought an interim order in family law proceedings. The specific nature of the dispute leading to this application is not detailed in the provided text, beyond the fact that it concerned an interim application made by the father.

The central legal issue before the court was whether to grant the father's interim application, which had been filed on 19 November 2019. The court was required to determine the merits of this application and decide whether it should be dismissed or otherwise dealt with.

Rees J dismissed the father's interim application. The reasoning behind this decision is not elaborated upon in the provided extract, but the outcome was a clear rejection of the father's request for interim relief. The court's final order reflected this dismissal.

Orders

Orders of the court

IT IS ORDERED

That the father’s interim application, contained in his response filed 19 November 2019, be dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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