Hotchkiss & Marek - [2021] FedCFamC2F 456

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Hotchkiss & Marek [2021] FedCFamC2F 456

File number: MLC 8449 of 2017

Judgment of: JUDGE O'SHANNESSY

Date of judgment: 25 November 2021

Catchwords: FAMILY LAW – Rice & Asplund – change of circumstances established – mother’s evidence taken at its highest on Rice & Asplund test – interim parenting – interim hearing – contested allegations cannot be determined – presumption not applied but extant order for equal shared parental responsibility – different test for whether the presumption applies.

Legislation: Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA, 65DAA.

Cases cited:
Banham & Banham [2021] FamCAFC 132

CDW & LVE (2015) FLC ¶93-683

Dundas & Blake (2013) FLC ¶93-552

Goode & Goode [2006] FLC ¶93-286

Grace & Grace (2020) FLC ¶93-996

Lysons & Lysons [2021] FamCAFC 59

Marsden & Winch (2013) FLC ¶93-560

Rice & Asplund (1979) FLC ¶90-725

Searson & Searson (2017) FLC ¶93-788

SPS & PLS (2008) FLC ¶93-363

Division: Division 2 Family Law

Number of paragraphs: 80

Date of last submissions: 25 November 2021

Date of hearing: 22 November 2021

Place: Melbourne

Counsel for the Applicant: Mr D Mort

Solicitor for the Applicant: White Cleland Lawyers

Counsel for the Applicant: Ms L Colla

Solicitor for the Applicant: Stenta Legal
ORDERS

MLC 8449 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS HOTCHKISS

Applicant

AND:
MR MAREK

Respondent

ORDER MADE BY:

JUDGE O'SHANNESSY

DATE OF ORDER:

25 NOVEMBER 2021

THE COURT ORDERS THAT:
1.The final orders dated 7 November 2018 operate in full force and effect including but not limited to term time (order 4d); school holidays (order 4f), Christmas (order 4(i)) and changeover (orders 8 and 9).
2.For the purpose of the orders of 7 November 2018, and order 1 herein, the Father's time pursuant to Order 4(d)(i) (week 1), recommences on Friday 3 December 2021 and the Father's time pursuant to 4(d)(ii) (week 2), recommences on Wednesday 8 December.
3.The orders of 7 November 2018 be varied to provide that only the children's parents are to attend any changeover.
4.By 4pm on 6 December 2021, both the Mother and Father enrol in and then complete (separately) the Tuning into Kids Program and the Parent Orders Program and provide the other via their lawyers with a copy of their certificate of completion within seven days of receipt.
5.By 4pm on 29 November 2021, the parties be at liberty to provide a copy of the following documents to Dr B (X's counsellor):
(a)the DFFH Report dated 11 October 2021;
(b)the hair follicle test report dated 12 November 2021;
(c)the supervisors report dated 18 November 2021;
(d)the Child Impact Report dated 22 November 2021; and
(e)a copy of these orders.

6.No later than 4.00pm on 1 February 2022, the Mother shall do all acts and things and sign all documents necessary to facilitate a supervised chain of custody hair follicle testing by an appropriate facility to be paid for at her cost as follows
(a)Such test…

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 Hotchkiss & Marek

Details

AGLC: Hotchkiss & Marek [2021] FedCFamC2F 456
Case: [2021] FedCFamC2F 456
Decision Date

CaseChat Overview and Summary

In this case, Ms Hotchkiss and Mr Marek were divorced in January 2018 and have two children together. The proceedings began when Ms Hotchkiss filed an application to vary existing final orders made in November 2018. The final orders included detailed arrangements for the children to spend time with Mr Marek. The application was filed in September 2021. The Father made an application under the rule in Rice & Asplund to dismiss the Mother's application on the basis that there had been no change in circumstances. The matter was heard on 22 November 2021, and judgment was delivered on 25 November 2021. The Court dismissed the Father's Rice & Asplund application and made a number of interim orders to be effective until the final hearing, which is set for March 2023. The interim orders included that the existing final orders would operate in full force and effect, including the term time and school holiday arrangements. The existing arrangements for the children to spend time with Mr Marek would recommence. The Court also made orders for the parties to undertake courses and programs and to refrain from denigrating each other in front of the children. The Court also made orders for the parties to engage in family dispute resolution and to use a parenting app to communicate between each other about the children.

Orders