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Josephs & Lorenzo

Josephs & Lorenzo

Case [2022] FedCFamC2F 506 22 April 2022

Appeal

Best Interests of the Child

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Josephs & Lorenzo [2022] FedCFamC2F 506

File number(s): ADC 4244 of 2018

Judgment of: JUDGE BROWN

Date of judgment: 22 April 2022

Catchwords: FAMILY LAW – parenting - child aged thirteen years – application made by father to spend time with child following final order made in November 2020 – at time of final orders child apparently estranged from father – parties agreed to regime of reunification counselling – counselling unsuccessful as child reported to be unwilling to engage with father – whether the rule of Rice & Asplund should be applied – application for summary dismissal – whether there has been a significant change in material circumstances since final order – best interests – consideration of the benefits to be derived by avoidance of further litigation balanced against what such litigation will usefully achieve – matters to be considered – no reasonable prospects of success – application dismissed

Legislation:
Family Law Act 1975 (Cth) Pt VII, Div 12A, ss 45A, 60B(2), 60CA, 60CC(2)-(3), 69ZN(3), 69ZQ,

Family Law Amendment (Family Violence & Other Measures) Act 2018 (Cth)

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 143

Federal Court Act 1976 (Cth) s 31A

Cases cited:
Australian Securities and Investment Commission v Cassimatis (2013) 220 FCR 256.

Bennett & Bennett (1991) FLC 92-191

Josephs & Lorenzo [2019] FCCA 929

CDJ v VAJ (1998) FLC 92-828

Dey v Victorian Railway Commissioners (1949) 78 CLR 62

H v W (1995) 126 Fam LR 788, 797

In the Marriage of McEnearney (1980) FLC 90-866

King & Finneran (2001) FLC 93-079

Lindon v Commonwealth of Australia (No 2) (1996) 136 ALR 251

Marsden v Winch (2009) 42 Fam LR 1

McKellar v Container Terminal Manager Services Limited (1999) 165 ALR 409

Przbylowski v Australian Human Rights Commission (No 2) [2018] FCA 473

R & R: Children’s Wishes (2000) 25 Fam LR 712

Rice v Asplund (1979) FLC 90-725

Riva NSW Ltd v Official Trustee in Bankruptcy [2017] FCA 188

Spencer v Commonwealth of Australia (2010) 241 CLR 118

SPS & PLS [2008] FamCAFC 16

Stativa & Stativa [2015] FamCAFC 170

Walter & Walter [2016] FamCAFC 56

Webster v Lampard (1993) 177 CLR 598

Division: Division 2 Family Law

Number of paragraphs: 127

Date of hearing: 31 March 2022

Place: Adelaide

Counsel for the Applicant: Mr Roberts

Solicitor for the Applicant: Lachlan McAuliffe Barrister & Solicitor

Counsel for the Respondent: Ms Miller

Solicitor for the Respondent: NJ Ireland Barrister & Solicitor
ORDERS

ADC 4244 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR JOSEPHS

Applicant

AND:
MS LORENZO

Respondent

ORDER MADE BY:

JUDGE BROWN

DATE OF ORDER:

22 APRIL 2022

THE COURT ORDERS THAT:
1.The Application filed by the applicant on 31 August 2021 is hereby dismissed.
2.The Respondent be at liberty to file and serve an application for costs within 28 days of these orders with the Applicant given leave to file any response within a further 28…

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 Josephs & Lorenzo

Details

AGLC: Josephs & Lorenzo [2022] FedCFamC2F 506
Case: [2022] FedCFamC2F 506
Decision Date

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, Josephs sought to overturn final orders that had been made in November 2020, in respect of the parenting arrangements for his daughter, X, who was 13 years of age. In those orders, it had been agreed that X would not spend time with Josephs unless and until some form of reunification therapy was successful. Since the final orders were made, X had not spent any time with Josephs and the reunification therapy had not been successful. The mother had applied for the father’s application to be summarily dismissed. In these circumstances, the court was required to determine whether there had been a material change of circumstances since the final orders were made and if not, whether the proceedings should be summarily dismissed. The court determined that the father had no reasonable prospects of successfully pursuing his application and that the best interests of the child would not be served by further litigation. The father’s application was dismissed.

Orders