Haykal and Krawiec (No 3) - [2012] FamCA 379

FAMILY COURT OF AUSTRALIA

HAYKAL & KRAWIEC (NO. 3)

[2012] FamCA 379

FAMILY LAW – CHILDREN – where parenting orders had been made in the Federal Magistrates Court – where the father applies to this Court to have those orders discharged and alternative parenting orders made – where the mother seeks to have the father’s application dismissed – where the mother relies upon the rule in Rice v Asplund – whether there has been a material change of circumstances such that the application for the orders contended for should, in the best interests of the children, proceed to a hearing – where the orders currently sought by the father are almost identical to those sought by him in the Federal Magistrates Court – where there is no evidence of a material change in circumstances – orders made dismissing the father’s application.

FAMILY LAW – PROPERTY – where orders were previously made by consent in the Federal Magistrates Court regarding property settlement – where the husband has filed an application seeking to vary those orders pursuant to s 79A of the Family Law Act – where orders made by consent, inter alia, withdrawing that application.

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

Mann & Prewett [2009] FamCA 929
Miller v Harrington (2008) FLC 93-383
Rice & Asplund (1979) FLC 90-725

APPLICANT:

Ms Krawiec

RESPONDENT:

Mr Haykal

FILE NUMBER:

SYC

731

2009

DATE DELIVERED:

18 May 2012

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Murphy J

HEARING DATE:

17 May 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Schonell SC

SOLICITOR FOR THE APPLICANT:

Michael Conley Lawyers

REPRESENTATION FOR THE

RESPONDENT:

Mr Loukas of Counsel in respect of parenting matters AND Mr Paul, solicitor in respect of financial matters

SOLICITOR FOR THE RESPONDENT:

C Law Firm (Parenting) AND Paul & Paul Lawyers (Financial)

Orders

IT IS ORDERED THAT

The Amended Initiating Application filed by the father on 31 October 2011 be dismissed.
The Application in a Case filed by the father on 2 April 2012 be dismissed.
The proceedings be removed from the Court’s list of active cases.
All documents produced on subpoena be returned to the owners thereof.
Pursuant to s 121(9)(g) of the Family Law Act 1975 an account of these proceedings, namely the transcript of today’s proceedings, Exhibit M1, these Orders and the Reasons for Judgment herewith be approved for publication to the Legal Services Commission or any person or body charged with responsibility for investigating the professional behaviour of the husband’s parenting matters solicitors C Law Firm.
The Reasons for Judgment be expedited and be issued by email in due course to each of the parties.
In the event that either party makes application for costs, any such application shall include a precise minute of orders sought and be contained in written submissions which are to be filed on behalf of each of the parties via email to … within 14 days and each party shall include within those written submissions whether…

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.

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Details

Case: [2012] FamCA 379
Decision Date: 18 May 2012

CaseChat Overview and Summary

In *Haykal and Krawiec (No 3)*, Murphy J of the Federal Circuit Court of Australia considered applications by the father to discharge existing parenting orders and substitute alternative orders, and by the mother seeking dismissal of the father's application. The mother relied on the rule in *Rice v Asplund*, arguing that the father's application should not proceed to a hearing as there had been no material change in circumstances. The court also dealt with a separate property settlement matter where the husband sought to vary previous consent orders, and the wife sought the withdrawal of that application.

The primary legal issue before the court was whether there had been a material change in circumstances sufficient to warrant a hearing of the father's application for new parenting orders, given that the orders sought were substantially the same as those previously considered. In relation to the property matter, the court was required to determine the disposition of the husband's application to vary consent orders.

Murphy J dismissed the father's application for parenting orders, finding no evidence of a material change in circumstances since the previous orders were made. The court applied the principle that a party seeking to vary existing parenting orders must demonstrate a significant change in circumstances to justify a re-litigation of the children's best interests. In the property matter, consent orders were made withdrawing the husband's application to vary the previous property settlement. The court also ordered the return of documents produced on subpoena and approved the publication of certain proceedings and reasons for judgment to the Legal Services Commission.

Orders

Orders of the court

IT IS ORDERED THAT

The Amended Initiating Application filed by the father on 31 October 2011 be dismissed.

The Application in a Case filed by the father on 2 April 2012 be dismissed.

The proceedings be removed from the Court’s list of active cases.

All documents produced on subpoena be returned to the owners thereof.

Pursuant to s 121(9)(g) of the Family Law Act 1975 an account of these proceedings, namely the transcript of today’s proceedings, Exhibit M1, these Orders and the Reasons for Judgment herewith be approved for publication to the Legal Services Commission or any person or body charged with responsibility for investigating the professional behaviour of the husband’s parenting matters solicitors C Law Firm.

The Reasons for Judgment be expedited and be issued by email in due course to each of the parties.

In the event that either party makes application for costs, any such application shall include a precise minute of orders sought and be contained in written submissions which are to be filed on behalf of each of the parties via email to … within 14 days and each party shall include within those written submissions whether each is prepared to permit the issue of costs to be dealt with in chambers without the necessity of further appearance. In the event that one or both parties request oral supplementation of those written submissions that be listed by way of video link before Murphy J at a date and time to be advised.

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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