Naldi and Naldi

[2018] FCCA 2413

FEDERAL CIRCUIT COURT OF AUSTRALIA

NALDI & NALDI [2018] FCCA 2413

Catchwords:
PARENTING – Rule in Rice & Asplund - where final parenting orders made by consent on 5 June 2008 – hearing of preliminary issue - where the Father seeks to discharge those orders – where the Court dismissed the father’s application.

Legislation:

Family Law Act 1975, ss.60CA, 64B, 65AA, 60CC, 65D

Cases cited:

CDJ v VAJ [1998] HCA 67
Edwards & Edwards (2006) FLC 93-306
Gaul & Gaul (2000) FamCA 12
Gotch v Gotch [2009] FamCAFC 3
King v Finneran (2001) FLC 93-079
Marsden & Winch [2009] FamCAFC 152;
Miller v Harrington (2008) 39 FamLR 654
Poisat & Poisat [2014] FamCAFC 128
Reid & Lynch (2010) FLC 93-448
Rice & Asplund (1997) FLC 90-275

SCVG & KLD [2014] FamCAFC 42

Searson & Searson [2017] FamCAFC 119
SPS & PLS [2008] FAMCAFC 16; (2008) 39 FamLR 295; FLC 93-363
Watson & Watson [2018] FCCA 1791

Applicant: MR NALDI

Respondent: MS NALDI

File Number: SYC 7071 of 2017

Judgment of: Judge Harper

Hearing date: 4 April 2018

Date of Last Submission: 4 April 2018

Delivered at: Sydney

Delivered on: 31 August 2018

REPRESENTATION

Counsel for the Applicant: Ms Cantrall

Solicitors for the Applicant: Jordan Djundja Lawyers

Counsel for the Respondent: Mr Longworth

Solicitors for the Respondent: Somerville Legal

ORDERS

1. The Initiating Application filed 26 October 2017 be dismissed.

2. The proceedings be removed from the active pending cases list.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 7071 of 2017

MR NALDI

Applicant

And

MS NALDI

Respondent

REASONS FOR JUDGMENT

Introduction

1. These proceedings concern the child, [X], born 2003 presently 15 years of age (“[X]”). The parties also share another child, [Y], born 2000, who is presently 18 years of age (“[Y]”) (collectively referred to as “the children”).

2. By way of Initiating Application filed 26 October 2017, the Applicant father, Mr Naldi (“the father”) seeks that final parenting orders made by consent by the Federal Circuit Court of Australia on 5 June 2008 (“2008 orders”) be discharged and that in their place, fresh parenting orders be made with respect to [X].

3. By way of Response, the Respondent mother, Ms Naldi (“the mother”) sought the father’s Initiating Application be dismissed.

4. It was common ground, between the parties, that the father’s application requires consideration of the application of the rule, as it is called, in Rice & Asplund (1997) FLC 90-275 (“Rice & Asplund”).

Background

1. The father was born 1975 and is presently 43 years of age.

2. The mother was born 1975 and is presently 42 years of age.

3. The parties commenced cohabitation in 1999 and married on 2001.

4. On 27 February 2005, the parties separated. At this time, the children were aged 5 and 1 ½ years of age respectively.

5. On 31…