Lai and Sinclair

[2013] FCCA 1584

FEDERAL CIRCUIT COURT OF AUSTRALIA

LAI & SINCLAIR [2013] FCCA 1584

Catchwords:
FAMILY LAW – Children – parenting orders – application to vary parenting orders – where mother wishes to take child out of Australia to see maternal grandfather who is seriously ill – the rule in Rice & Asplund considered – where applicant has shown a sufficient change of circumstances to justify a re-examination of the issue of travel outside Australia – application to proceed to final hearing.

Legislation:

Family Law Act 1975 (Cth), s.60CA

Freeman & Freeman (1987) FLC 91-857
Gough & Apostolou [2013] FamCA 249

Hayman & Hayman (1976) FLC 90-140
King & Finneran [2001] FamCA 344; (2001) FLC 93-079
Marsden & Winch [2009] FamCAFC 152
Miller & Harrington [2008] FamCAFC 150; (2008) 39 Fam LR 654; FLC 93-383; 220 FLR 300
Rice & Asplund (1979) FLC 90-725
SPS & PLS [2008] FamCAFC 16; (2008) 39 Fam LR 295; FLC 93-363

Applicant: MS LAI

Respondent: MR SINCLAIR

File Number: SYC 3552 of 2010

Judgment of: Judge Scarlett

Hearing date: 6 August 2013

Date of Last Submission: 6 August 2013

Delivered at: Sydney

Delivered on: 11 October 2013

REPRESENTATION

Solicitors for the Applicant: Legal Aid NSW (Duty Solicitor)

Solicitors for the Respondent: MMD Law

ORDERS

1. The Response filed on 25 July 2013 insofar as it seeks interim Orders dismissing the Application brought by the mother to vary the orders made on 20 March 2012 and interim parenting Orders is dismissed.

2. The Application will proceed to a final hearing on a date to be fixed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 3552 of 2010

MS LAI

Applicant

And

MR SINCLAIR

Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application by the mother of a little boy called X for permission to travel overseas with him to China to see her father, the child’s maternal grandfather, who is seriously ill and no longer able to travel. The child was born on (omitted) 2008 and is therefore 5 years old.

2. The father opposes the Application on the basis that this matter has already been judicially decided as recently as 20 March 2012 and, consequently, the Court should have regard to the rule in Rice & Asplund, [1]that the Court should not lightly entertain an application to reverse an earlier parenting order. The Court would need to be satisfied that there is some changed circumstance that would justify such a serious step or that a new factor had arisen.  

   [1] (1979) FLC 90-725

Background

1. The mother’s application will involve a variation or suspension of the Orders made by this Court after a final hearing on 20 March 2012. On that date, Federal Magistrate Altobelli, as his Honour then was, made orders by consent providing that:

   a)The parties are to have equal shared parental responsibility for the child;

   b)The child is…