Kaplan & Kaplan - [2022] FedCFamC2F 1748

Federal Circuit and Family Court of Australia
(DIVISION 2)
Kaplan & Kaplan [2022] FedCFamC2F 1748

File number(s): MLC 6744 of 2016

Judgment of: JUDGE HARLAND

Date of judgment: 16 December 2022

Catchwords: FAMILY LAW – parenting – threshold hearing – whether or not there has been a significant change of circumstances.

Legislation: Family Law Act 1975 (Cth) ss 4, 69ZN

Cases cited:
Garza & Hammill [2022] FedCFamC1A 142

Marsden & Winch [2013] FamCAFC 177

Miller & Harrington (2008) FLC 93-383

Oberlin & Infeld [2021] FamCAFC 66

Rice & Asplund [1978] FamCA 84

Division: Division 2 Family Law

Number of paragraphs: 56

Date of hearing: 30 November 2022

Place: Melbourne

Counsel for the Applicant: Ms Renou

Solicitor for the Applicant: Patford-Smith Legal Services

Counsel for the Respondent: Mr Dunlop

Solicitor for the Respondent: Ryan Carlisle Thomas
ORDERS

MLC 6744 of 2016

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR KAPLAN

Applicant

AND:
MS KAPLAN

Respondent

order made by:

JUDGE HARLAND

DATE OF ORDER:

16 DECEMBER 2022

THE COURT ORDERS THAT:
1.The Application for Final Orders filed 26 August 2022 be dismissed.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Kaplan & Kaplan has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE HARLAND:

X and Y are 12 and 10 years old and live with their mother in the Town B area. They spend time with their father three weekends in a four week period, who lives in the Town C area approximately 1.5 to 2 hours away. The father seeks to revisit parenting orders the parties consented to on 7 May 2018. He says there has been a significant change of circumstances since those orders were made and that it is in the children’s best interests that those orders be revisited. The mother seeks a summary dismissal of the father’s application relying on the principle developed in Rice and Asplund [1978] FamCA 84. The parties acknowledge that due to the distance between the parties’ homes it is not feasible for there to be a more shared care arrangement. The orders the father seeks would reverse the children’s living arrangements.
The argument was heard as a threshold matter with oral and written submissions without cross-examination. The father prepared his affidavit without a lawyer but was represented…

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 Kaplan & Kaplan

Details

AGLC: Kaplan & Kaplan [2022] FedCFamC2F 1748
Case: [2022] FedCFamC2F 1748
Decision Date

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, Kaplan sought to revisit parenting orders that were consented to in 2018. The mother opposed the application and sought a summary dismissal relying on the principle developed in Rice and Asplund. The father prepared his affidavit without legal assistance but was represented by counsel at the threshold hearing. The court had to decide whether there had been a significant change of circumstances since the 2018 orders were made, warranting a revisitation of those orders. In reaching its decision, the court considered the principle in Rice and Asplund, the evidence before it, and the impact of any further proceedings on the children. The court found that the father’s evidence, taken at its highest, did not establish a significant change of circumstances. The changes the father sought would require the children to change schools and reverse their living arrangements. The court was not satisfied that the father’s complaints, individually or together, warranted a revisitation of the 2018 orders. The court also found that further proceedings would not be in the children’s best interests. The court dismissed the father’s application.

Orders