Hunter & Uppal - [2008] FamCA 425

FAMILY COURT OF AUSTRALIA

HUNTER & UPPAL

[2008] FamCA 425

FAMILY LAW – PRACTICE AND PROCEDURE – application seeking to vary existing parenting orders – determination of preliminary issue – whether threshold requirement established in Rice and Asplund (1979) FLC 90-725 met – father contends numerous changes in circumstances since previous orders – whether cumulative effect of circumstances warrants reconsideration of parenting orders – except for issue of overseas travel, circumstances not sufficient either individually or on cumulative basis to warrant re-opening issues – issue of child’s international travel to be determined after full hearing – remainder of application summarily dismissed.

Family Law Act 1975 (Cth) ss 60B & 60CA
Family Law Amendment (Shared Parental Responsibility) Act 2006

Rice and Asplund (1979) FLC 90-725
King and Finneran (2001) FLC 93-079
F and N (1987) FLC 91-813
Bennett and Bennett (1991) FLC 92-191
F & C and Child Representative [2004] FamCA 568
Bolitho and Cohen (2005) FLC 93-224
Edwards and Edwards (2006) FLC 93-306
Sklovsky and Gastin [2007] FamCA 540
Paskandy and Paskandy (2005) 33 Fam LR 509

APPLICANT:

Mr Hunter

RESPONDENT:

Ms Uppal

INDEPENDENT CHILDREN’S LAWYER:

J Richard Croft

FILE NUMBER:

ADC

1669

2007

DATE DELIVERED:

18 June 2008

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Dawe J

HEARING DATE:

12 March 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

N/A

SOLICITOR FOR THE APPLICANT:

Self-Represented

COUNSEL FOR THE RESPONDENT:

Mr Bowler

SOLICITOR FOR THE RESPONDENT:

Adey Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Boehm

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

J Richard Croft

Orders

Noting that paragraphs 5, 6 and 9 of the father’s application filed on the 28 March 2007 have been dealt with by final consent orders on the 6 September 2007, it is ordered:
(a)Paragraphs 1, 2, 3, 4, 10, 11, 12 and 13 are summarily dismissed.
(b)The father’s application in paragraphs 7 and 8 (being the overseas travel) be referred to the Docket Registrar for directions hearing with a view to preparing the same for final hearing before a Judge of this Court on a date to be fixed.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 1669 of 2007

MR HUNTER

Applicant

And

MS UPPAL

Respondent

REASONS FOR JUDGMENT

Introduction

The preliminary issue to be determined is whether circumstances exist to establish the threshold requirement described as the “rule in Rice and Asplund”. The father has instituted further proceedings. The mother and the Independent Children’s Lawyer assert that the threshold test has not been met.

Hearing

Initially the matter was listed in November 2007, but was adjourned by His Honour Justice Burr on the 23 November 2007 for determination of the Rice and Asplund test issue “at a date and at a time to be fixed by the Court”. The matter was listed before me on the 12 March 2008.
At the hearing…

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 Hunter & Uppal

Details

AGLC: Hunter & Uppal [2008] FamCA 425
Case: [2008] FamCA 425
Decision Date: 18 June 2008

CaseChat Overview and Summary

In *Hunter & Uppal*, heard by Dawe J in the Family Court of Australia, the father sought to vary existing parenting orders. The core of the dispute concerned whether the cumulative effect of numerous alleged changes in circumstances since the making of the previous orders warranted a reconsideration of those orders.

The primary legal issue before the court was whether the threshold requirement, as established in *Rice and Asplund* (1979) FLC 90-725, had been met. This required the court to determine if the circumstances presented by the father, either individually or when considered cumulatively, were sufficient to justify re-opening the parenting orders. A secondary issue related to the child's proposed international travel.

Dawe J found that, with the exception of the issue concerning the child's international travel, the circumstances presented by the father were not sufficient, either individually or on a cumulative basis, to warrant a re-opening of the parenting orders. The court noted that some of the father's original contentions had already been resolved by subsequent consent orders.

Consequently, the court summarily dismissed the father's application in relation to most of the grounds raised. However, the application concerning the child's overseas travel was referred for directions with a view to a final hearing.

Orders

Orders of the court

Noting that paragraphs 5, 6 and 9 of the father’s application filed on the 28 March 2007 have been dealt with by final consent orders on the 6 September 2007, it is ordered:

(a) Paragraphs 1, 2, 3, 4, 10, 11, 12 and 13 are summarily dismissed.

(b) The father’s application in paragraphs 7 and 8 (being the overseas travel) be referred to the Docket Registrar for directions hearing with a view to preparing the same for final hearing before a Judge of this Court on a date to be fixed.

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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