Howell and Garson (No.3) - [2017] FCCA 3343

FEDERAL CIRCUIT COURT OF AUSTRALIA

HOWELL & GARSON (No.3)

[2017] FCCA 3343

Catchwords:
FAMILY LAW – Schooling – whether there is a sufficient change in circumstance to warrant embarking on a hearing.

Legislation:

Family Law Act 1975 (Cth)

Howell & Garson (No.2) [2016] FCCA 3050
Marsden & Winch [2009] FamCAFC 152
Miller & Harrington [2008] FamCAFC 150
Rice & Asplund [1978] FamCA 84
Searson & Searson [2017] FamCAFC 119
SPS & PLS [2008] FamCAFC 16
Walter & Walter [2016] FamCAFC 56

Applicant:

MR HOWELL

Respondent:

MS GARSON

File Number:

SYC 4888 of 2009

Judgment of:

Judge McNab

Hearing date:

20 December 2017

Date of Last Submission:

20 December 2017

Delivered at:

Melbourne

Delivered on:

22 December 2017

REPRESENTATION

Counsel for the Applicant:

Mr Dickson QC

Solicitors for the Applicant:

Kenna Teasdale Lawyers

Counsel for the Respondent:

Ms Dellidis

Solicitors for the Respondent:

Nicholes Family Lawyers

ORDERS

The application be dismissed.
The Applicant pay the Respondent’s costs fixed in the sum of $7,631 with a stay of 30 days.

AND THE COURT NOTES THAT:

A.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 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 Annexure A and these particulars are included in these orders.

IT IS NOTED that publication of this judgment under the pseudonym Howell & Garson (No.3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

SYC 4888 of 2009

MR HOWELL

Applicant

And

MS GARSON

Respondent

REASONS FOR JUDGMENT

(Delivered Ex-Tempore)

By an amended initiating application filed on 15 December 2017, the applicant father seeks interim orders in the following terms:
(1)That at all times necessary be abridged to allow this Application to be heard as a matter of urgency, prior to Friday 8 December 2017.
(2)The Applicant Father, Respondent Mother, and the child [X] (“[X]”) born (omitted) 2006, attend Ms L for the purposes of the preparation of a Family Report, with interviews for the Family Report to be held on Friday 5 January 2018.
(3)The Family Report address the following matters:
(a)The question of the school [X] should attend for the commencement of her secondary education in 2018;
(b)Any views expressed by [X] and any factors (such as [X]’s maturity and level of understanding) that would affect the weight the Court should give on those wishes;
(c)The matters set out in section 60CC of the Family Law Act 1975 and;
(d)Any other matters that Ms L considers important to the welfare and best interests of [X].
(4)Both parties be and are hereby restrained from discussing with [X] the question of her school attendance in 2018 pending attendance upon Ms L.
(5)Such further and other Orders as this Honourable Court deems appropriate.
An initiating application was filed on 14 November 2017, however, the application was refused by the registrar.
The final orders that the father seeks are:
(1)Order 1…

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 Howell and Garson (No.3)

Details

AGLC: Howell and Garson (No.3) [2017] FCCA 3343
Case: [2017] FCCA 3343
Decision Date: 22 December 2017

CaseChat Overview and Summary

In *Howell and Garson (No.3)*, the applicant sought to have certain orders set aside. The respondent opposed this application. The matter came before Judge McNab in the Family Court of Australia.

The primary legal issue before the Court was whether the applicant had established sufficient grounds to justify setting aside the existing orders. This involved an examination of the applicant's arguments and the evidence presented in support of those arguments.

Judge McNab dismissed the application. The Court found that the applicant had not met the threshold required to set aside the orders. Consequently, the applicant was ordered to pay the respondent's costs, fixed at $7,631, with a stay of 30 days. The orders also included particulars of obligations and consequences of contravention, as required by sections 65DA(2) and 62B of the *Family Law Act 1975*.

Orders

Orders of the court

The application be dismissed.

The Applicant pay the Respondent’s costs fixed in the sum of $7,631 with a stay of 30 days.

AND THE COURT NOTES THAT:

A. Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 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 Annexure A and these particulars are included in these orders.

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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