Masters and Gaskell - [2016] FCCA 2401

FEDERAL CIRCUIT COURT OF AUSTRALIA

MASTERS & GASKELL

[2016] FCCA 2401

Catchwords:
FAMILY LAW – Rice and Asplund principle – consent orders made after extensive cross-examination – issues regarding father’s mental health, insight and animosity towards the mother and her family – no change of circumstances.

Legislation:

Family Law Act 1975, s.65D(2)

Cases cited:

In the Marriage of Rice and Asplund (1979) FLC 90-725
SPS & PLS [2008] FamCAFC 16
Marsden & Winch [2009] FamCAFC 152
Reid & Lynch [2010] FamCAFC 184
Freeman & Freeman (1987) FLC 91-857

Applicant:

MR MASTERS

Respondent:

MS GASKELL

File Number:

MLC 4415 of 2011

Judgment of:

Judge Harland

Hearing dates:

15 & 16 August 2016

Date of Last Submission:

16 August 2016

Delivered at:

Melbourne

Delivered on:

15 September 2016

REPRESENTATION

The Applicant:

In person

Counsel for the Respondent:

Ms Goldthrop

Solicitors for the Respondent:

Barbayannis Lawyers

ORDERS

The application filed 7 January 2015 be dismissed.
That the respondents file and serve written submissions on or before 6 October 2016 if she seeks to pursue her application for costs.
That the father file and serve written submissions and a financial statement in response to the respondent’s application for costs on or before 27 October 2016.
That the parties have liberty to apply to seek an oral hearing with respect to costs, such request to be made on or before 13 October 2016.
That the father be permitted to provide a copy of the reports of Dr D, Dr E, Mr T and these reasons to any counsellor and other medical professionals he may attend from time to time.

NOTATION

A.The orders made 26 July 2012 remain in full force and effect.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 4415 of 2011

MR MASTERS

Applicant

And

MS GASKELL

Respondent

REASONS FOR JUDGMENT

The issue for me to determine is whether or not there are sufficient changes in circumstance to justify the Court revisiting the final parenting orders made in 2012. The mother says that the father has not established a change of circumstances and that his application should be dismissed pursuant to the principles referred to in Rice & Asplund (1979) FLC 90-725 (“Rice & Asplund”).
On 8 April 2015 Judge Curtain made interim orders, listing matter for final hearing, ordering a family report, making trial directions and ordering that since time with the father be supervised by an agreed third party noting that it is currently being supervised by the mother and maternal grandmother. Due to the way the matter came before me I determined that it was appropriate that the parties and the family consultant be cross-examined.

History

The father is 37 years old. He appeared without legal representation in the previous and the current proceedings. The mother is 32 years old.
X was born on (omitted) 2011. He is now 5 years…

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 Masters and Gaskell

Details

AGLC: Masters and Gaskell [2016] FCCA 2401
Case: [2016] FCCA 2401
Decision Date: 15 September 2016

CaseChat Overview and Summary

In the matter of Masters and Gaskell, heard before Judge Harland, the dispute concerned an application filed on 7 January 2015. The specific nature of the dispute is not detailed in the provided text, beyond the fact that it led to an application and subsequent orders regarding costs and the dissemination of reports.

The court was required to determine the disposition of the application filed in January 2015. Additionally, the court needed to establish a process for addressing applications for costs, including the timelines for parties to file and serve written submissions, and to consider whether an oral hearing concerning costs would be necessary. The court also had to decide on the father's ability to share specific reports and the court's reasons with medical and counselling professionals.

Judge Harland dismissed the application filed on 7 January 2015. The court then set out a detailed timetable for the parties to address costs, requiring the respondents to file submissions by 6 October 2016 if pursuing costs, and the father to respond with submissions and a financial statement by 27 October 2016. Parties were granted liberty to apply for an oral hearing on costs by 13 October 2016. Furthermore, the father was permitted to provide copies of the reports from Dr D, Dr E, and Mr T, along with the court's reasons, to any counsellor or medical professional he might consult. The existing orders from 26 July 2012 were confirmed to remain in full force.

Orders

Orders of the court

The application filed 7 January 2015 be dismissed.

That the respondents file and serve written submissions on or before 6 October 2016 if she seeks to pursue her application for costs.

That the father file and serve written submissions and a financial statement in response to the respondent’s application for costs on or before 27 October 2016.

That the parties have liberty to apply to seek an oral hearing with respect to costs, such request to be made on or before 13 October 2016.

That the father be permitted to provide a copy of the reports of Dr D, Dr E, Mr T and these reasons to any counsellor and other medical professionals he may attend from time to time.

NOTATION

A. The orders made 26 July 2012 remain in full force and effect.

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.