Kaling and Amato - [2015] FCCA 3587

FEDERAL CIRCUIT COURT OF AUSTRALIA

KALING & AMATO

[2015] FCCA 3587

Catchwords:
FAMILY LAW – Parenting – Rice & Asplund hearing – change in circumstances established.

Legislation:

Family Law Act 1975, s.13C

Rice & Asplund (1979) FLC 90-725
Knaggs & Lew [2015] FCCA 1146
Pope & Letten [2014] FCCA 2032
Miller & Harrington (2008) FLC 93 – 383
SPS & PLS (2008) FLC 93-363
King & Finnerman (2001) FLC 93-079
Carriel & Lendrum [2015] FamCAFC 43
Langham & Langham (1981) FLC 91-014
In the marriage of McEnerney (1980) FLC 90-866
Marsden & Winch [2009] FamCAFC 152
DL & W [2012] FamCAFC 5

Applicant:

MR KALING

Respondent:

MS AMATO

File Number:

PAC 4880 of 2009

Judgment of:

Judge Newbrun

Hearing date:

23 December 2015

Date of Last Submission:

23 December 2015

Delivered at:

Parramatta

Delivered on:

23 December 2015

REPRESENTATION

Solicitor appearing for the Applicant:

Ms Aslam

Respondent:

In person

ORDERS

The interim and final orders sought by the mother in her Response filed 19 July 2013 seeking to dismiss the father’s Initiating Application filed 26 June 2013 are dismissed.
The interim and final orders sought by the mother in her Response filed 19 July 2013 seeking orders that the orders of the Federal Magistrates Court of Australia made on 9 December 2011 continue without variation be dismissed.
Any orders previously sought by the mother seeking to dismiss the father’s Initiating Application filed 26 June 2013 and Amended Initiating Application filed 18 December 2014 are dismissed.
Pursuant to section 68L of the Family Law Act 1975, the interests of the child X born (omitted) 2008 shall be independently represented by a lawyer, and the Legal Aid Commission of New South Wales is requested to arrange the appointment of a lawyer to do so.
The solicitors for the mother and the father shall forthwith forward to the Legal Aid Commission of New South Wales notice of these orders and copies of the documents filed in the proceedings on behalf of their respective clients.
Pursuant to section 62G of the Family Law Act 1975, a Report be prepared for the Court by a Family Consultant nominated by the Manager, Child Dispute Services.
The Court appoints 14 October 2016 at 9.30am as a mention of the proceedings following the release of the Family Report.
The Court appoints 31 March 2016, 10 am, for an interim hearing relating to parenting orders sought by the father in his Initiating Application filed 26 June 2013 and Amended Initiating Application filed 18 December 2014. The Court will allow a maximum time of 1.5 hours in relation to such interim hearing.
Direct the father to file and serve a consolidated Affidavit to be relied upon by him at the said interim hearing on or before 28 February 2016.
Direct the mother to file and serve one consolidated affidavit for the said interim hearing to be filed and served on or before 15 March 2016.
The above affidavits are to be no longer than 10 pages each…

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 Kaling and Amato

Details

AGLC: Kaling and Amato [2015] FCCA 3587
Case: [2015] FCCA 3587
Decision Date: 23 December 2015

CaseChat Overview and Summary

In proceedings before Judge Newbrun, the father sought parenting orders, while the mother sought to dismiss the father's application and have existing orders continue without variation. The dispute concerned the parenting arrangements for the child X.

The court was required to determine whether to dismiss the mother's applications seeking to dismiss the father's initiating application and to continue existing orders without variation. Additionally, the court needed to consider the best interests of the child X and make appropriate orders for the conduct of the proceedings, including the representation of the child and the preparation of a family report.

The judge dismissed the mother's applications to dismiss the father's initiating application and to continue existing orders without variation. The court ordered that the child X's interests be independently represented by a lawyer, requesting the Legal Aid Commission of New South Wales to arrange this appointment. A Family Consultant was also appointed to prepare a report for the court. The proceedings were adjourned for an interim hearing on parenting orders, with directions for the parties to file consolidated affidavits and case outlines. The court indicated that sworn evidence from a previous hearing would be considered at the interim hearing.

Orders

Orders of the court

The interim and final orders sought by the mother in her Response filed 19 July 2013 seeking to dismiss the father’s Initiating Application filed 26 June 2013 are dismissed.

The interim and final orders sought by the mother in her Response filed 19 July 2013 seeking orders that the orders of the Federal Magistrates Court of Australia made on 9 December 2011 continue without variation be dismissed.

Any orders previously sought by the mother seeking to dismiss the father’s Initiating Application filed 26 June 2013 and Amended Initiating Application filed 18 December 2014 are dismissed.

Pursuant to section 68L of the Family Law Act 1975, the interests of the child X born (omitted) 2008 shall be independently represented by a lawyer, and the Legal Aid Commission of New South Wales is requested to arrange the appointment of a lawyer to do so.

The solicitors for the mother and the father shall forthwith forward to the Legal Aid Commission of New South Wales notice of these orders and copies of the documents filed in the proceedings on behalf of their respective clients.

Pursuant to section 62G of the Family Law Act 1975, a Report be prepared for the Court by a Family Consultant nominated by the Manager, Child Dispute Services.

The Court appoints 14 October 2016 at 9.30am as a mention of the proceedings following the release of the Family Report.

The Court appoints 31 March 2016, 10 am, for an interim hearing relating to parenting orders sought by the father in his Initiating Application filed 26 June 2013 and Amended Initiating Application filed 18 December 2014. The Court will allow a maximum time of 1.5 hours in relation to such interim hearing.

Direct the father to file and serve a consolidated Affidavit to be relied upon by him at the said interim hearing on or before 28 February 2016.

10.

Direct the mother to file and serve one consolidated affidavit for the said interim hearing to be filed and served on or before 15 March 2016.

11.

The above affidavits are to be no longer than 10 pages each in length.

12.

Both parties are to forward a case outline document (by email to associate.judgenewbrun@federalcircuitcourt.gov.au) consisting of a short chronology and a list of documents to be relied upon no later than two days prior to the said interim hearing. The Court expects the Independent Children’s Lawyer to be present at the proposed interim hearing and fully participate in such hearing.

13.

In respect of the said interim hearing, the Court proposes, in addition to the Affidavit of each party to be relied upon at the interim hearing, that the sworn evidence given by the parties at the Rice & Asplund hearing will be considered as evidence at the interim hearing.

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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