Hibben & Osava - [2022] FedCFamC2F 1380

Federal Circuit and Family Court of Australia
(DIVISION 2)
Hibben & Osava [2022] FedCFamC2F 1380

File number(s): ADC 3338 of 2019

Judgment of: JUDGE JENKINS

Date of judgment: 27 October 2022

Catchwords: FAMILY LAW – PARENTING – interim hearing – recent final consent orders – Rice & Asplund – material change of circumstances – best interests – interim relocation – application dismissed

Legislation:
Family Law Act 1975 (Cth) ss 60CC, 117, 121, 121(9)(g)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 10.13 and r 10.14(b)

Cases cited:
Marsden & Winch (2009) 42 Fam LR 1

Poisat & Poisat [2014] FamCAFC 128

Rice & Asplund (1979) FLC 90-725

SPS & PLS (2008) 217 FLR 164

Division: Division 2 Family Law

Number of paragraphs: 51

Date of last submission/s: 23 September 2022

Date of hearing: 23 September 2022

Place: Adelaide

Counsel for the Applicant: Ms Lewis

Solicitor for the Applicant: Barnes Brinsley Shaw Lawyers

Counsel for the Respondent: Ms Horvat

Solicitor for the Respondent: Mellor Olsson
ORDERS

ADC 3338 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS OSAVA

Applicant

AND:
MR HIBBEN

Respondent

order made by:

JUDGE JENKINS

DATE OF ORDER:

27 October 2022

THE COURT ORDERS THAT:
1.The mother’s Amended Initiating Application filed 10 June 2022 be dismissed.
2.There be no order as to costs.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Hibben & Osava has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE JENKINS
introduction

This is a parenting matter concerning the one child X born in 2012, aged 10 years.
Final orders were made by consent with respect to X on 22 June 2021 (“the final orders”).
The final orders provided for X to live with the mother, for the mother to have sole parental responsibility and for X to spend time with the father in accordance with his wishes. The orders also provided for the father to be able to communicate with X via email, to send cards, letters and gifts and for the father to be able to attend X’s school events and his extracurricular activities.
At the time the final orders were made, the parties were both living in Adelaide. Although it was understood the mother wished to move to Queensland with X,…

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 Hibben & Osava

Details

AGLC: Hibben & Osava [2022] FedCFamC2F 1380
Case: [2022] FedCFamC2F 1380
Decision Date

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, the case of Hibben & Osava involved a dispute over parenting arrangements for a child, X, born in 2012. Final consent orders had been made on 22 June 2021, providing for X to live with the mother, who had sole parental responsibility, and for the father to have time with X in accordance with his wishes. The final orders also included provisions for the father to communicate with X via email, send cards, letters, and gifts, and attend X's school events and extracurricular activities. The orders further stipulated that X's principal place of residence could not be moved from the Adelaide metropolitan area until he completed year 6 at B School. The mother sought an amendment to these orders, requesting permission to relocate with X to Queensland.

The legal issues before the court were whether there had been a material change in circumstances since the final orders, and if so, whether it was in X's best interests to revisit the parenting orders. The court considered the principles established in Rice & Asplund, which emphasize that the Court should only hear an application to alter an earlier parenting order if there are changed circumstances that would justify such action. The court had to weigh the potential benefit of a variation against the disruption and emotional harm to the child caused by re-litigation.

The court found that while the mother's brother had moved to Queensland, this did not constitute a material change in circumstances. The mother's need for support had not significantly increased, and the father's relationship with X had not improved since the final orders. The court concluded that X's best interests would not be served by permitting the mother to relocate with him at that time. The court dismissed the mother's application and made no order as to costs, as the case was not straightforward, and the mother had raised legitimate arguments.

In summary, the court determined that the circumstances had not changed materially enough to warrant a re-evaluation of the parenting orders, and that it was in X's best interests to remain in Adelaide to allow time for the relationship between X and the father to potentially rebuild. The court's decision aimed to prevent continuous litigation, which is generally not in the child's best interests.

Orders