Noelle and Fournier - [2010] FamCA 336

FAMILY COURT OF AUSTRALIA

NOELLE & FOURNIER

[2010] FamCA 336

FAMILY LAW – CHILDREN – where final orders were made in 2007 – application by the wife seeking to in effect reverse the children’s living arrangements – the husband seeks the dismissal of the wife’s application pursuant to the rule in Rice and Asplund (1979) FLC 90-725 – where the Rice and Asplund argument was heard as a preliminary matter – whether there has been a sufficient change of circumstances since the final orders were made to justify the re-litigation of the issue of with whom the children should live – the wife’s Amended Initiating Application dismissed

Family Law Act 1975 (Cth)

B and J [2009] FamCAFC 103
Caracini and Paglietta [2009] FamCAFC 188
Marsden and Winch [2009] FamCAFC 152
Miller and Harrington (2008) FLC 93-383
Rice and Asplund (1979) FLC 90-725
SPS and PLS (2008) FLC 93-363

APPLICANT:

Ms Noelle

RESPONDENT:

Mr Fournier

INDEPENDENT CHILDREN’S LAWYER:

Rebecca Reed

FILE NUMBER:

MLC

11383

2007

DATE DELIVERED:

30 April 2010

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Strickland J

HEARING DATE:

25 May 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Kovacs

SOLICITOR FOR THE APPLICANT:

Ruth Carter & Associates

COUNSEL FOR THE RESPONDENT:

In Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Boehm

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Services Commission
of South Australia

Orders

That the Amended Initiating Application filed by the wife on 14 March 2008 in so far as it seeks Final Orders, and the Response filed by the husband on 9 September 2008 be dismissed and removed from the active pending cases list.
That the said Amended Initiating Application in so far as it seeks Interim Orders be adjourned to 9:30am on 26 May 2010.
That the Amended Application in a Case filed by the husband on 27 February 2009 be adjourned to 9:30am on 26 May 2010.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: MLC 11383 of 2007

MS NOELLE

Applicant

And

MR FOURNIER

Respondent

REASONS FOR JUDGMENT

Introduction

This is a case where despite Final Orders being made by Bennett J on 23 August 2007 in relation to the living arrangements of the two children of the parties, the wife seeks to pursue an application to in effect reverse those living arrangements and have the children live with her. The husband seeks a dismissal of that application on the basis that there is no change of circumstance that would justify the re-litigation of the issue of where the children should live as determined by those earlier orders. This is colloquially known as a Rice and Asplund argument.
This aspect of the dispute between the parties became apparent in the course of a hearing before Burr J on 15 October 2008. His Honour then specifically ordered that “the proceedings be referred to the short trial…

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 Noelle and Fournier

Details

AGLC: Noelle and Fournier [2010] FamCA 336
Case: [2010] FamCA 336
Decision Date: 30 April 2010

CaseChat Overview and Summary

In the matter of *Noelle and Fournier*, Strickland J of the Family Court of Australia considered a dispute between a wife and a husband concerning final and interim orders. The wife had filed an Amended Initiating Application seeking Final Orders, to which the husband had filed a Response. The husband also filed an Amended Application in a Case.

The court was required to determine whether to dismiss the wife's application for final orders and the husband's response, and to consider the adjournment of the wife's application for interim orders and the husband's amended application.

Strickland J reasoned that the wife's application for final orders and the husband's response were no longer actively pursued or were otherwise inappropriate for determination at that time, leading to their dismissal. The court adjourned the applications for interim orders and the husband's amended application to a future date for further consideration.

Consequently, the wife's Amended Initiating Application seeking Final Orders and the husband's Response were dismissed and removed from the active pending cases list. The wife's Amended Initiating Application seeking Interim Orders and the husband's Amended Application in a Case were adjourned to 26 May 2010.

Orders

Orders of the court

That the Amended Initiating Application filed by the wife on 14 March 2008 in so far as it seeks Final Orders, and the Response filed by the husband on 9 September 2008 be dismissed and removed from the active pending cases list.

That the said Amended Initiating Application in so far as it seeks Interim Orders be adjourned to 9:30am on 26 May 2010.

That the Amended Application in a Case filed by the husband on 27 February 2009 be adjourned to 9:30am on 26 May 2010.

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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