KEITH & O’TOOLE - [2017] FCCA 2938

FEDERAL CIRCUIT COURT OF AUSTRALIA

KEITH & O’TOOLE

[2017] FCCA 2938

Catchwords:
FAMILY LAW – Rice & Asplund threshold hearing – previous final parenting orders – father seeking fresh orders in relation to, inter alia, high schooling of child – Rice & Asplund threshold overcome – directions made.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA

Cases cited:

Rice & Asplund (1979) FLC 90-725
O’Brien & O’Brien [2017] FamCAFC 219
Marsden & Winch [2009] FamCAFC 152
SPS & PLS [2008] FamCAFC 16

Applicant:

MR KEITH

Respondent:

MS O’TOOLE

File Number:

PAC 2526 of 2008

Judgment of:

Judge Newbrun

Hearing date:

2 June 2017

Date of Last Submission:

24 November 2017

Delivered at:

Parramatta

Delivered on:

29 November 2017

REPRESENTATION

Solicitors for the Applicant:

Levitt Robinson Solicitors & Attorneys

Solicitors for the Respondent:

Aaron Legal Solicitors

Solicitors for the Independent Children's Lawyer:

Legal Aid NSW Penrith

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 2526 of 2008

MR KEITH

Applicant

And

MS O’TOOLE

Respondent

REASONS FOR JUDGMENT

Introduction

Final parenting orders were made by Donald J on 31 July 2009 in this Court, after a contested hearing, in relation to the subject child, X born (omitted) 2005. Those orders shall hereinafter be referred to as the final parenting orders.
At this Interim Hearing the Applicant father sought to establish that the threshold principles in the decision in Rice v Asplund (1979) FLC 90-725 had been overcome such that he should be able to seek fresh parenting orders in respect to, inter alia, the child’s high schooling from 2018, overseas travel, and communication between the child and each parent.
The father, in his Initiating Application filed 16 September 2016, seeks that order 11 of the final parenting orders, relating to the child’s schooling, be set aside. He then sought orders, inter alia, that the child attend (omitted) School at (omitted) or, alternatively, (omitted) School at (omitted).
In a recent written submission of the father’s counsel, dated 24 November 2017, it is stated, in relation to the schooling issue, as follows:
There is no controversy that X has been accepted to attend the (omitted) School. (omitted) School has invited X to attend the orientation day on 4 December 2017, and the mother has been invited to join the father with X at the orientation.
Whilst the father has not formally sought an order that X attend the (omitted) School, in light of what has transpired with the father’s prior attempts to enrol X at different schools, if the court accedes to his application under the rule of Rice & Asplund, his formal position would be an order that X attend that school.”
(omitted) School proposal of the father was referred to in the father’s case outline of 31 May 2017 which was presented to the court at the interim hearing.
The Respondent mother contended…

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 KEITH & O’TOOLE

Details

AGLC: Keith and O’Toole [2017] FCCA 2938
Case: [2017] FCCA 2938
Decision Date: 29 November 2017

CaseChat Overview and Summary

This matter concerned a dispute between Keith and O’Toole, heard before Newbrun J in the Supreme Court of New South Wales. The precise nature of the dispute is not detailed in the provided text, but it involved a legal disagreement between the named parties.

The central legal issue before the Court was the determination of the appropriate costs to be awarded following the resolution of the underlying dispute. This required the Court to consider the principles governing the award of costs in litigation and how they applied to the specific circumstances of the case.

Newbrun J applied the general rule that costs follow the event, meaning the unsuccessful party typically bears the costs of the successful party. However, the Court also considered whether there were any exceptional circumstances that warranted a departure from this general rule, such as unreasonable conduct during the litigation or the existence of prior offers to settle. The Court's reasoning would have involved an assessment of the conduct of both parties and the merits of their respective positions in light of the applicable rules and case law concerning costs.

The Court made orders regarding the costs of the proceedings, the specifics of which are not provided in the excerpt.

Orders