LANE & PARSONS

[2016] FCCA 1056

FEDERAL CIRCUIT COURT OF AUSTRALIA

LANE & PARSONS [2016] FCCA 1056

Catchwords:
FAMILY LAW – “Best interest” considerations for Father to bring further proceedings to change final parenting orders made by consent in 2013 – application of the principles in Rice & Asplund (1979) FLC 90-725 – whether existing parenting orders ought to be reconsidered – whether there has been a sufficient change in circumstances to justify reopening the parenting proceedings – agreement with the parties to determine the Rice & Asplund issue as a preliminary issue and to do so “on the papers” – even had the Father established the necessary change in circumstances, it would still not be in the best interests of the child to reopen proceedings and commence protracted litigation – Father also confirms that since May 2015 the Mother has largely complied with the 2013 consent orders – import of concession by Father of Mother’s compliance with existing final orders.

Legislation:

Family Law Act 1975 (Cth), ss.62G, 69ZN

Cases cited:

Carriel v Lendrum (2015) 53 Fam LR 157
CDW v LVE [2015] WASCA 247
In the Marriage of Cullen (1981) 8 Fam LR 35; (1981) FLC 91-113
In the Marriage of Freeman (1986) 11 Fam LR 293; (1987) FLC 91-857
Marsden v Winch (2010) 42 Fam LR 1
Miller v Harrington (2008) 220 FLR 300; (2009) 39 Fam LR 654
Poisat & Poisat (2014) FLC 93-597

Rice & Asplund (1979) FLC 90-725

SPS & PLS (2008) 217 FLR 164; (2009) 39 Fam LR 295; (2008) FLC 93-363
Walter & Walter [2016] FamCAFC 56

Applicant: MR LANE

Respondent: MS PARSONS

File Number: CAC 1538 of 2009

Judgment of: Judge Neville

Hearing date: 3 November 2015

Date of Last Submission: 25 November 2015

Delivered at: Canberra

Delivered on: 5 May 2016

REPRESENTATION

Solicitors for the Applicant: Irene Pickel, Solicitors, Bowral

Solicitors for the Respondent: Evans Family Lawyers, Canberra

ORDERS

1. The Initiating Application, filed 8^th May 2015, be dismissed.

2. There be no Order as to costs.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CANBERRA

CAC 1538 of 2009

MR LANE

Applicant

And

MS PARSONS

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is a long-running, albeit “stop-start” parenting matter that first began its litigious life in September 2009, when the Mother filed an Initiating Application seeking Orders in relation to now 9 year old X.[1]

   [1] A Family Report was released to the parties on 15^th December 2009 but which only recorded the agreement then reached between the parties.  The Mother has a daughter from a previous relationship, Y, who is aged 8 years.

2. Final orders were made by consent on 2^nd July 2013.  In general terms, those Orders provided for an equal time arrangement for X and his parents and an order for equal shared parental responsibility.

3. On 8^th May 2015, the Father filed an Initiating Application (supported…