McCLEASE and Barnicoat and Anor

FEDERAL CIRCUIT COURT OF AUSTRALIA

McCLEASE & BARNICOAT & ANOR [2018] FCCA 1658

Catchwords:
FAMILY LAW – Parenting – consideration of principle in Rice & Asplund – previous determinations of parenting Orders in the NSW District Court and Supreme Court – approval given by Director-General for the Mother to institute proceedings in this Court – no relevant change in circumstances to warrant a change to the existing Orders for the Mother to spend only supervised time with the children.

Legislation:

Family Law Act 1975 (Cth), ss.60CA, 60CC(2A), 69ZK(1) & (2)

Cases cited:
Carriel v Lendrum (2015) 53 Fam LR 157
Marsden v Winch (2010) 42 Fam LR 1
Miller v Harrington (2008) 220 FLR 300; (2009) 39 Fam LR 654
In the Marriage of N [1991] FamCA 54
Newling & Newling (1987) 11 Fam LR 974
O’Brien & O’Brien [2017] FamCAFC 219
Poisat & Poisat (2014) FLC 93-597

Rice & Asplund (1979) FLC ¶90-725

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

Applicant: MS MCCLEASE

First Respondent: MR BARNICOAT

Second Respondent: MR SIMPSON

File Number: CAC 1742 of 2017

Judgment of: Judge Neville

Hearing date: 13 April 2018

Date of Last Submission: 13 April 2018

Delivered at: Canberra

Delivered on: 19 April 2018

REPRESENTATION

Solicitors for the Applicant: D.N. Wilson & Co

Counsel for the 1^st Respondent: Mr Stagg

Solicitors for the 1st Respondent:	Legal Aid ACT
Solicitors for the 2nd Respondent:	Legal Aid NSW

ORDERS

(1)The Mother’s Application filed on 21 September 2018 be dismissed, the matter be finalised and removed from the docket immediately.  

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CANBERRA

CAC 1742 of 2017

MS MCCLEASE

Applicant

And

MR BARNICOAT

First Respondent

MS SIMPSON

Second Respondent

REASONS FOR JUDGMENT

Introduction

1.These reasons, which have been revised from the transcript, relate to the Mother’s Application, filed 21^st September last year, to vary Orders that were initially made by the District Court of New South Wales on 18^th April 2013, and more recently by the New South Wales Supreme Court on at least two occasions in 2016.  Pursuant to Orders made in the Courts to which I have referred, the children, who are the subject of the Application, [X] (aged 8 years) and [Y] (aged 10 years) live with their respective Fathers in South Australia ([X] [8 years] and [Y] [10 years]), and country New South Wales ([Z] [aged 7 years]).

2.Also in accordance with those Orders, the Mother spends only supervised time with the children in South Australia and in Town A. 

3.The primary or fundamental reason given by the Mother that grounds her current Application, notwithstanding the multiple Court events and Orders to which I have referred, is the simple fact that the children are now older and therefore,…