Karalis and Bella - [2010] FMCAfam 798

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KARALIS & BELLA

[2010] FMCAfam 798

FAMILY LAW – Parenting orders – mother seeking to discharge final parenting orders made in 2006 – Rice & Asplund – alleged incidents involving child – where there has been a sufficient change of circumstances – damage to child of re-opening parenting proceedings – application dismissed.

Family Law Act 1975, Part VII, ss.55A, 60CA, 60CC, 61DA, 64B, 65D

In the Marriage of D & Y (1995) 18 Fam LR 662; (1995) FLC 92-581
In the Marriage of McEnearney (1980) FLC 90-866
In the Marriage of Rice & Asplund (1978) 6 Fam LR 570; (1979) FLC 90–725
In the Marriage of Schorel (1990) 14 Fam LR 105; (1990) FLC 92-144
Marsden & Winch [2009] FamCAFC 152; (2009) 42 Fam LR 1
Miller v Harrington [2008] FamCAFC 150; 39 Fam LR 654; (2008) FLC 93-383
P & S (No.2) (2007) FMCAfam 1039
SPS v PLS [2008] FamCAFC 16; (2008) 39 Fam LR 295; (2008) FLC 93-363
Sklovsky & Gastin [2007] FamCA 540

Applicant:

MS KARALIS

Respondent:

MR BELLA

File Number:

SYC 3391 of 2010

Judgment of:

Monahan FM

Hearing date:

30 June 2010

Date of Last Submission:

30 June 2010

Delivered at:

Sydney

Delivered on:

30 July 2010

REPRESENTATION

Counsel for the Applicant:

Mr Jackson

Solicitors for the Applicant:

Konstan Lawyers

Counsel for the Respondent:

Mr Maurice

Solicitors for the Respondent:

Greg Morahan & Co.

THE COURT ORDERS THAT:

The Mother’s Initiating Application filed 31 May 2010 be dismissed.
Paragraphs 7 and 8 of the orders made 10 June 2010 be discharged.
The Father’s Application seeking costs be adjourned for hearing on a date to be fixed.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYC 3391 of 2010

MS KARALIS

Applicant

And

MR BELLA

Respondent

REASONS FOR JUDGMENT

Introduction

By her Initiating Application filed 31 May 2010, MS KARALIS (“the mother”) seeks various parenting orders against MR BELLA (“the father”) in respect of their child [X] born in 2002 (“[X]” or “the child”) including an order that the current parenting orders be discharged.
The mother’s application is opposed by the father who filed a Response on 10 June 2010.
In summary, the mother is seeking to discharge the final parenting orders made in the Family Court of Australia by Cohen J on 30 June 2006. These final orders arose from his Honour’s decision delivered and published on the day[1] and following a four-day defended hearing that commenced on 30 January 2006. The father is seeking, inter alia, for the mother’s application to be dismissed, and for his costs in this matter to be paid by the mother on an indemnity basis.
[1] Bella & Karalis (Unreported, FCoA, 30 June 2006).
In addition to seeking the discharge of the parenting orders made by his Honour, the mother is now seeking final orders…

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 Karalis and Bella

Details

AGLC: Karalis and Bella [2010] FMCAfam 798
Case: [2010] FMCAfam 798
Decision Date

CaseChat Overview and Summary

In this case, the mother, MS KARALIS, seeks various parenting orders against the father, MR BELLA, in respect of their child, [X], born in 2002. The mother's application is opposed by the father who filed a Response on 10 June 2010. The mother is seeking to discharge the final parenting orders made in the Family Court of Australia by Cohen J on 30 June 2006. The father is seeking, inter alia, for the mother's application to be dismissed, and for his costs in this matter to be paid by the mother on an indemnity basis. The legal issue before the court was whether there had been a sufficient change of circumstances to warrant a rehearing of the parenting issues. The court found that there was no sufficient change of circumstances to warrant a rehearing of the parenting issues. The court found that the re-opening of this matter would be further damaging to [X], already vulnerable because of her medical condition and the continuing hostility in her parents' relationship. The court dismissed the mother's initiating application. The court also discharged paragraphs 7 and 8 of the interim orders made 10 June 2010. The father's application for costs was adjourned for hearing on a date to be fixed.

Orders