Lasco and Lasco - [2018] FCCA 498

FEDERAL CIRCUIT COURT OF AUSTRALIA

LASCO & LASCO

[2018] FCCA 498

Catchwords:
FAMILY LAW – Parenting – whether the rule in Rice & Asplund applies so as to preclude the mother from continuing her application.

Legislation:

Family Law Act 1975 (Cth), pt.VII

Cases cited:

Poisat & Poisat [2014] FamCAFC 128
Rice & Asplund (1979) FLC 90-725

Applicant:

MS LASCO

Respondent:

MR LASCO

File Number:

NCC 503 of 2016

Judgment of:

Judge Middleton

Hearing date:

31 January 2018

Date of Last Submission:

31 January 2018

Delivered at:

Newcastle

Delivered on:

6 February 2018

REPRESENTATION

Counsel for the Applicant:

Mr Wilkinson

Solicitors for the Applicant:

Craney Family Solicitors

Counsel for the Respondent:

Mrs Kearney

Solicitors for the Respondent:

Merridy Elphick Lawyers

ORDERS

The application filed by the Applicant Mother on 22 August 2017 is dismissed.
The Respondent Father’s costs of today are reserved.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 503 of 2016

MS LASCO

Applicant

And

MR LASCO

Respondent

REASONS FOR JUDGMENT

Ex tempore

These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

Introduction

By way of an Initiating Application filed 22 August 2017 the mother, Ms Lasco, aged 34, seeks to discharge orders made by consent on 29 March 2016 regarding parenting orders for X born (omitted) 2013 (“the child”), now aged four.
The mother seeks orders thereafter essentially reversing the orders that are currently in place.
The father, Mr Lasco, aged 30, by way of his Response filed 25 October 2017, seeks an order dismissing the mother’s application.
Currently, pursuant to the order of 29 March 2016, the child lives with the father and spends substantial and significant time with the mother.

Background

The parties commenced cohabitation in 2012, married on (omitted) 2015, and separated on 27 November 2015.
The parties attended mediation on 4 December 2015 and reached an agreement whereby the child lives with the father and spends time with the mother, incrementally increasing until alternate weekend time commenced on 1 February 2016.
The father provided an application for consent orders to the mother in January 2016. The mother contacted lawyers at (omitted) and received advice.[1]
[1] See paragraph 30 the mother’s Affidavit filed 22 August 2017.
The father and the mother signed the consent orders. The father’s signature is dated 26 February 2016 and the mother’s signature is dated 24 February 2016.[2]
[2] See Annexure G to the father’s Affidavit filed 25 October 2017.
The mother commenced family dispute resolution in April 2017. The parties attended a mediation on 31 May 2017 and no agreement was reached.
The mother has three children from two former partners; A (aged 14), B (aged 13) and C (aged 8).
Both A and C have been diagnosed…

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 Lasco and Lasco

Details

AGLC: Lasco and Lasco [2018] FCCA 498
Case: [2018] FCCA 498
Decision Date: 6 February 2018

CaseChat Overview and Summary

In *Lasco and Lasco*, heard by Judge Middleton, the Applicant Mother sought to vary an existing parenting order. The specific nature of the dispute concerned the children's living arrangements and the father's time with them.

The central legal issue before the court was whether there had been a significant change in the circumstances of the child since the making of the last parenting order, such that it would be in the child's best interests to reconsider the existing arrangements. The court was required to assess the evidence presented by both parties in light of this threshold question.

Judge Middleton's reasoning focused on the high bar required to vary a final parenting order. The court found that the evidence presented by the Applicant Mother did not demonstrate a significant change in circumstances that would justify a departure from the current orders. Consequently, the application was dismissed. The court also reserved the Respondent Father's costs of the hearing.

Orders

Orders of the court

The application filed by the Applicant Mother on 22 August 2017 is dismissed.

The Respondent Father’s costs of today are reserved.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.