Moore & Shirley - [2020] FamCA 56

FAMILY COURT OF AUSTRALIA

MOORE & SHIRLEY

[2020] FamCA 56

FAMILY LAW – CHILDREN – where final parenting orders were made in November 2018 changing the child’s living arrangements from living with the mother to living with the father and spending supervised time with the mother – where the mother seeks orders that the child live with her and spend supervised time with the father – where the father asks that the court determine the Rice & Asplund question as a threshold issue – where the Court is not persuaded that the mother has established a sufficient change in circumstances – where the mother’s Initiating Application is dismissed.

Family Law Act 1975 (Cth)

Bennett and Bennett (1991) FLC 92–191
Caracini & Paglietta [2009] FamCAFC 188
CDJ v VAJ (1998) 197 CLR 172
DL & W (2012) FLC 93-496
Freeman and Freeman (1987) FLC 91-857
G & G [2000] FamCA 12
In the Marriage of McEnearey (1980) FLC 90 – 866
King v Finneran (2001) FLC 93–079
Marsden & Winch (2009) 42 Fam LR 1
Miller & Harrington (2008) FLC 93-383
Newling and Newling; Mole (Applicant) (1987) FLC 91-856
Poisat & Poisat (2014) FLC 93-597
Rice v Asplund (1979) FLC 90-725

APPLICANT:

Ms Moore

RESPONDENT:

Mr Shirley

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Queensland

FILE NUMBER:

PAC

3139

2013

DATE DELIVERED:

7 February 2020

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Hogan J

HEARING DATE:

30 January 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Page of Queen’s Counsel

SOLICITOR FOR THE APPLICANT:

Fallu McMillan Lawyers

THE RESPONDENT:

In person

THE INDEPENDENT CHILDREN’S LAWYER:

Ms Huth

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Queensland

Orders

IT IS ORDERED THAT

The Initiating Application filed 7 August 2019 is dismissed.
In the event that Mr Shirley and/or the Independent Children’s Lawyer seeks an order that Ms Moore pay the costs of and incidental to the Initiating Application filed 7 August 2019:
(a)the applicant for an order for costs shall file and serve brief written submissions in support of such application for costs within fourteen (14) days of today; and
(b)Ms Moore shall file and serve any brief written submissions in answer to the submissions filed and served by any applicant seeking costs within a further fourteen (14) days thereafter; and
(c)the applicant for an order for costs shall file and serve any brief further written submissions, strictly in reply to the submissions served by Ms Moore, within seven (7) days of its service,
and any such application for costs shall be considered in Chambers.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Moore & Shirley has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of 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 Moore & Shirley

Details

AGLC: Moore & Shirley [2020] FamCA 56
Case: [2020] FamCA 56
Decision Date: 7 February 2020

CaseChat Overview and Summary

In the matter of *Moore & Shirley*, heard by Hogan J, the mother sought to vary final parenting orders made in November 2018. These earlier orders had stipulated that the child live with the father and have supervised time with the mother. The mother's application sought orders for the child to live with her and spend supervised time with the father. The father, as a preliminary matter, requested the court determine the *Rice & Asplund* question.

The central legal issue before the court was whether the mother had established a sufficient change in circumstances to warrant a variation of the existing final parenting orders. This required the court to consider the threshold question of whether there had been a material change in the circumstances of the child since the making of the final orders.

Hogan J was not persuaded that the mother had demonstrated a sufficient change in circumstances to justify altering the existing arrangements. Consequently, the mother's Initiating Application was dismissed. The court also made orders regarding the process for any subsequent application for costs.

Orders

Orders of the court

IT IS ORDERED THAT

The Initiating Application filed 7 August 2019 is dismissed.

In the event that Mr Shirley and/or the Independent Children’s Lawyer seeks an order that Ms Moore pay the costs of and incidental to the Initiating Application filed 7 August 2019:

(a) the applicant for an order for costs shall file and serve brief written submissions in support of such application for costs within fourteen (14) days of today; and

(b) Ms Moore shall file and serve any brief written submissions in answer to the submissions filed and served by any applicant seeking costs within a further fourteen (14) days thereafter; and

(c) the applicant for an order for costs shall file and serve any brief further written submissions, strictly in reply to the submissions served by Ms Moore, within seven (7) days of its service,

and any such application for costs shall be considered in Chambers.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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