Mann & Prewett - [2009] FamCA 929

FAMILY COURT OF AUSTRALIA

MANN & PREWETT

[2009] FamCA 929

FAMILY LAW – CHILDREN – Application of the rule in Rice v Asplund (1979) FLC 90-725 – final orders made by consent in March 2008 – final orders permitted the mother to temporarily relocate and provide for her return – mother now residing with new partner and seeks to permanently relocate – mother asserts she can no longer afford to live in Sydney and would be separated from her partner – no sufficient change in circumstances – mother’s application dismissed

Family Law Act 1975 (Cth)

Hartnett v Sampson (No. 10) (2008) FLC 93-350
Rice v Asplund (1979) FLC 90-725

APPLICANT:

Ms Mann

RESPONDENT:

Mr Prewett

FILE NUMBER:

SYC

645

2008

DATE DELIVERED:

24 September 2009

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Fowler J

HEARING DATE:

11 September 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Kearney

COUNSEL FOR THE RESPONDENT:

Mr Schonell

Orders

The mother’s Application filed 24 April 2009 and amended on 4 June 2009 be and is hereby dismissed.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 645 of 2008

MS MANN

Applicant

And

MR PREWETT

Respondent

REASONS FOR JUDGMENT

Introduction

In the current proceedings before the Court the mother seeks to vary parenting orders made by consent on 5 March 2008. The question arises whether upon the application of the principle in Rice v Asplund (1979) FLC ¶90-725 the mother’s application should be dismissed.

Background facts

The father was born in 1967 and is aged 42 years.
The mother was born in 1970 and is aged 39 years.
The parties married in March 2004.
In June 2004 the parties’ daughter, X, was born and is aged 5 years.
The parties finally separated on 14 February 2005. At this time the mother resided in a property at B in Sydney.
In mid 2006 the child commenced attending at the day care centre at E where she remained for a period of 18 months until January 2008.
In 2007 the mother’s partner, Mr C, established his business in the Southern Highlands area and thereafter operated the business.
In mid 2007 the mother sold her business and was thereafter unemployed.
In December 2007 the mother entered into a lease in respect of premises known at M for a period of 12 months commencing on 2 January 2008.
In January 2008 the mother and child commenced residing at M. Thereafter and until 6 February 2008 the father attended in M for time with the child by informal agreement.
On 2 January 2008, before moving to M, the mother enrolled the child in day care at G Centre in M.
On 6 February 2008 the father commenced proceedings in the Federal Magistrates Court in Sydney.
On 25 February 2008 Interim Parenting Orders were made by Federal Magistrate Altobelli.
Those Orders provided:
THE…

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 Mann & Prewett

Details

AGLC: Mann & Prewett [2009] FamCA 929
Case: [2009] FamCA 929
Decision Date: 24 September 2009

CaseChat Overview and Summary

The proceedings concerned an application by the mother, who sought to vary existing court orders concerning her child, X. The father, Prewett, was the respondent. The matter came before Fowler J in the Family Court of Australia.

The primary legal issue before the court was whether there had been a significant change in X’s circumstances warranting a reconsideration of the existing orders, and whether it was in X’s best interests to address these issues in the current proceedings rather than dismissing them. The mother argued that such changes and issues existed, making dismissal contrary to X’s best interests.

Fowler J disagreed with the mother's submissions. His Honour was satisfied that dismissing the proceedings was in X’s best interests. Consequently, the mother's application, as amended, was dismissed.

Orders

Orders of the court

The mother’s Application filed 24 April 2009 and amended on 4 June 2009 be and is hereby dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

6.43 The Mother repeats the matters outlined above.6.44Conclusion. It is submitted that the material before the Court demonstrates that there are both:6.44.1significant changes in [X’s] circumstances which warrant a reconsideration of the Orders, and a judicial determination as to that which is in [X’s] best interests; and,6.44.2significant issues with the existing Orders which mean that it is preferable that the Orders be addressed in the present proceedings, permitting a timely disposition of all issues prior to [X’s] commencement at school in 2010.[sic] such that the Court could not be satisfied that dismissal of the proceedings at this time is in [X’]s best interests.I do not agree with either proposal 6.44.1 or 6.44.2 above. I am satisfied that an order dismissing the proceedings is in the interest of X and I propose to so order.

Ratio Decidendi

Legal Principle Established

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