Lambert & Lambert - [2017] FCCA 349

FEDERAL CIRCUIT COURT OF AUSTRALIA

LAMBERT & LAMBERT

[2017] FCCA 349

Catchwords:
FAMILY LAW – Children – where final parenting orders were made by consent in May 2015 – consideration as to whether there were changed circumstances to justify a new hearing – principles in Rice & Asplund (1979) FLC 90-725 discussed – preliminary issue – where best interests of the children is primary consideration – where it is not in the children’s best interest to be involved in further litigation – whether change in circumstances is of sufficient significance to justify revisiting the parenting arrangements – application dismissed.

FAMILY LAW – Costs – Application for indemnity costs – discussion of principles – costs awarded.

Legislation:

Family Law Act 1975, s.117

Federal Circuit Court Rules 2001, r.21.02

Cases cited:

Cochrane & Cochrane [2012] FMCAfam 984
Colgate-Palmolive v Cussons Pty Ltd (1993) 46 FCR 225
Collins & Collins (1985) FLC 91-603
Fitzgerald (as Child Representative for A (Legal Aid Commissioner of Tasmania) v Fish & Anor (2005) 33 Fam LR 123
King & Finneran (2001) FLC 93-079
Kohan & Kohan (1993) FLC 92-340
Latoudis v Casey (1990) 170 CLR 534
Miller & Harrington (2008) FLC 93-383

Munday & Bowman (1997) FLC 92-784

Rice & Asplund (1979) FLC 90-725

Penfold & Penfold (1980) 144 CLR 311
Poisat & Poisat [2014] FamCAFC 128
Prantage & Prantage (2013) FLC 93-544
Re David (Costs) (1998) FLC 92-809
SPS & PLS (2008) FLC 93-363
Wrenstead & Eades [2016] FamCAFC 46

Applicant:

MR LAMBERT

Respondent:

MS LAMBERT

File Number:

PAC 2933 of 2016

Judgment of:

Judge Obradovic

Hearing date:

7 December 2016

Date of Last Submission:

7 December 2016

Delivered at:

Parramatta

Delivered on:

2 March 2017

REPRESENTATION

Counsel for the Applicant:

Ms Conte Mills

Solicitors for the Applicant:

APJ Law

Counsel for the Respondent:

Ms Judge

Solicitors for the Respondent:

Kevin Hockey & Associates

ORDERS

The Response filed 15 July 2016 is dismissed.
The Respondent pay the Applicant’s costs in the amount of $4,400 within 42 days.
Remove all outstanding issues from the list of cases awaiting finalisation.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 2933 of 2016

MR LAMBERT

Applicant

And

MS LAMBERT

Respondent

REASONS FOR JUDGMENT

Introduction

On 28 May 2015 with consent of the parties, the Court made final parenting orders with respect to the parties’ three children:
a)X, born on (omitted) 2002;
b)Y born on (omitted) 2003; and
c)Z born on (omitted) 2003.
(“Final Orders”)
Both Z and Y are to live with the mother pursuant to the Final Orders.
On 27 June 2016, the Mother filed an Initiating Application seeking a recovery order with respect to Z (“the Recovery Application”).
The Recovery Application first came before the Court in a busy duty list on 4 July 2016. For reasons which are explained below, the Recovery Application was adjourned and ultimately the issue…

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 Lambert & Lambert

Details

AGLC: Lambert & Lambert [2017] FCCA 349
Case: [2017] FCCA 349
Decision Date: 2 March 2017

CaseChat Overview and Summary

In *Lambert & Lambert*, the applicant sought to vary final parenting orders made by consent in May 2015. The primary consideration for the court was the best interests of the children.

The central legal issue before the court was whether there had been a sufficient change in circumstances since the making of the final orders to justify revisiting the parenting arrangements. The court was required to consider the principles established in *Rice & Asplund* regarding the circumstances under which final parenting orders can be varied.

Judge Obradovic applied the principles from *Rice & Asplund*, noting that a significant change in circumstances is required to justify a new hearing. The court found that it was not in the children’s best interests to be involved in further litigation and that the alleged changes in circumstances were not of sufficient significance to warrant revisiting the existing parenting orders. Consequently, the application was dismissed. The court also considered an application for indemnity costs, which was granted, ordering the respondent to pay the applicant's costs.

Orders

Orders of the court

The Response filed 15 July 2016 is dismissed.

The Respondent pay the Applicant’s costs in the amount of $4,400 within 42 days.

Remove all outstanding issues from the list of cases awaiting finalisation.

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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