Meyer and Shipton

[2013] FCCA 307

FEDERAL CIRCUIT COURT OF AUSTRALIA

MEYER & SHIPTON [2013] FCCA 307

Catchwords:
FAMILY LAW – Children – rule in Rice & Asplund.

Rice & Asplund (1979) FLC 90-725

Applicant: MS MEYER

Respondent: MR SHIPTON

File Number: CAC 90 of 2013

Judgment of: Judge Brewster

Hearing date: 19 April 2013

Delivered at: Canberra

Delivered on: 20 May 2013

REPRESENTATION

Counsel for the Applicant: Ms Tonkin

Solicitors for the Applicant: Elringtons

Counsel for the Respondent: Mr Brzostowski

Solicitors for the Respondent: Dobinson Davey Clifford Simpson

ORDERS

1. That the father’s application that the mother’s application filed 22 January 2013 be summarily be dismissed is refused.

2. That pursuant to section 11F of the Family Law Act 1975 (‘the Act’) the parties attend a Child Dispute Conference with a Family Consultant in this Registry on 15 July 2013 at 9.30am and pursuant to section 11C of the Act such conference be reportable.

3. That the matter is adjourned to 24 July 2013 at 10.00am.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT CANBERRA

CAC 90 of 2013

MS MEYER

Applicant

And

MR SHIPTON

Respondent

REASONS FOR JUDGMENT

Introduction

1. A story is told of the Jewish theologian Hillel the Elder.  He was walking with a fellow rabbi when they were accosted by a man who asked if each could summarise the Torah in the time that a man could stand on one leg.  Hillel’s companion struck the man with his stick for his impertinence but Hillel responded.  He said words to the effect “Do not do to anyone what you would not have done to yourself.  That is the Torah.  The rest is commentary.”

2. The same issue arises in this case in relation to Part VII of the Family Law Act 1975 (‘the Act’).  Can one say of that legislation that the only rule is that the best interests of the child are the paramount consideration and the rest is commentary?  In this case that question is raised with respect to what is often termed “the rule” or “the principle” in Rice & Asplund.  The question is whether that rule is a binding rule to be applied in all cases or is it only a guideline, in Hillel’s words only commentary to the principle that the best interests of the child are the paramount consideration?

Background

1. The parties were married on (omitted) 2006 and separated on 12 February 2010.  There is one child of the marriage X who was born on (omitted) 2008 and is therefore aged 4.

2. Prior to the parties’ separation they were living in (omitted).  On separation the mother moved to her mother’s home in (omitted).  She subsequently purchased a property in (omitted).  On 16 November 2010 the parties entered into consent orders with respect to property and the care of the child.  Whilst these orders were expressed to have been made in the Family Court of Australia…