HOLST & BLAKESLEE - [2018] FCCA 195

FEDERAL CIRCUIT COURT OF AUSTRALIA

HOLST & BLAKESLEE

[2018] FCCA 195

Catchwords:
FAMILY LAW – Parenting – consideration of principle in Rice & Asplund – Father’s Application dismissed including for the failure by the Father to file any evidence in support of his Application.

Legislation:

Family Law Act 1975

Cases cited:

Carriel v Lendrum (2015) 53 Fam LR 157
CDW v LVE [2015] WASCA 247
Marsden v Winch (2010) 42 Fam LR 1
Miller v Harrington (2008) 220 FLR 300; (2009) 39 Fam LR 654
Poisat & Poisat (2014) FLC 93-597

Rice & Asplund (1979) FLC ¶90-725

SPS & PLS (2008) 217 FLR 164; (2008) FLC ¶93–363; (2009) 39 Fam LR 295
Walter & Walter [2016] FamCAFC 56

Applicant:

MS HOLST

Respondent:

MR BLAKESLEE

File Number:

CAC 1823 of 2013

Judgment of:

Judge Neville

Hearing date:

25 October 2017

Date of Last Submission:

10 November 2017 (matter determined “on the papers”)

Delivered at:

Canberra

Oral reasons delivered on:

16 November 2017

Written reasons provided on:

15 February 2018

REPRESENTATION

Solicitors for the Applicant:

Legal Aid NSW

Solicitors for the Respondent:

Self represented

Solicitors for the Independent Children's Lawyer:

Evans Family Lawyers

ON A FINAL BASIS, THE COURT ORDERS THAT:

The Independent Children’s Lawyer be discharged.
The Initiating Application filed by the Mother on 16 February 2017 and the Response filed by the Father on 20 March 2017 be dismissed.
Pursuant to s.62B of the Family Law Act 1975 (Cth), information about the family counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.
Pursuant to s.65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet, attached hereto and these particulars are included in these orders.
All extant Applications are dismissed and the matter is now finalised and will be removed immediately from the docket.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CANBERRA

CAC 1823 of 2013

MS HOLST

Applicant

And

MR BLAKESLEE

Respondent

REASONS FOR JUDGMENT

Introduction

On 16^th November 2017 I delivered detailed oral reasons in relation to a very small number of discrete issues regarding the ongoing parenting contest between these parties. For reasons not explained the Father did not attend the delivery of judgment; nor did he attend by telephone (the Father lives (omitted) New South Wales, as does the Mother). After delivery of reasons, the Father later contacted my Chambers to ask for written reasons. These are those reasons, slightly revised, but in no substantive way, from the transcript.
The matter was dealt with by way of written submissions, which is also to confirm, contrary to any belief of the Father, that there was no actual hearing of…

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 HOLST & BLAKESLEE

Details

AGLC: HOLST & BLAKESLEE [2018] FCCA 195
Case: [2018] FCCA 195
Decision Date: 15 February 2018

CaseChat Overview and Summary

Holst & Blakeslee concerned an application by the Father before Neville J in the Family Court of Australia. The Father sought orders relating to parenting arrangements for the child.

The primary legal issue before the court was whether the Father's application should be granted, particularly in light of the principle established in *Rice v Asplund* and the Father's failure to file any supporting evidence.

Neville J dismissed the Father's application. The court applied the principles from *Rice v Asplund*, which require a party seeking to vary existing parenting orders to demonstrate a significant change in circumstances. Crucially, the Father failed to provide any evidence to substantiate his claims or demonstrate a material change in circumstances, which is a prerequisite for the court to consider altering existing arrangements. Without such evidence, the court could not be satisfied that the proposed changes were in the best interests of the child.

Orders