NULTY & KENDRICKS - [2019] FCCA 2720

FEDERAL CIRCUIT COURT OF AUSTRALIA

NULTY & KENDRICKS

[2019] FCCA 2720

Catchwords:
FAMILY LAW – Application to discharge appointment of Independent Children’s Lawyer – application to discharge or vary final parenting orders made by consent – Rice & Asplund threshold hearing – risk to child of exposure to further litigation – Costs.

Legislation:

Family Law Act 1975 (Cth), ss.68L, 68LA, 117

Cases cited:

In the marriage of McEnearney (1980) FLC 90-866
Lloyd and Child Representative (2000) FLC 93-045
Marsden & Winch [2009] FamCAFC 152
Re K [1994] FamCA 21
Rice & Asplund [1978] FamCA 84
SPS & PLS [2008] FamCAFC 16
T & L [2000] FamCA 351
W & M & W [2006] FamCA 512

Applicant:

MS NULTY

Respondent:

MR KENDRICKS

File Number:

SYC 3474 of 2013

Judgment of:

Judge M Neville

Hearing dates:

15 May 2019 and 25 September 2019

Date of Last Submission:

25 September 2019

Delivered at:

Sydney

Delivered on:

3 October 2019

REPRESENTATION

Applicant:

In person

Respondent:

In person

Independent Children's Lawyer:

Ms Weate of Jennifer Weate & Associates

THE COURT ORDERS THAT:

The Applicant’s Initiating Application filed on 15 March 2019 be dismissed.
The Applicant’s Application in a Case filed on 18 July 2019 be dismissed.
The Applicant’s Application in a Case filed on 22 August 2019 be dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 3474 of 2013

MS NULTY

Applicant

And

MR KENDRICKS

Respondent

REASONS FOR JUDGMENT

These are parenting proceedings concerning X (“X”). X was born on … 2003 and is now aged 16 years.
X’s Mother is Ms Nulty. His Father is Mr Kendricks.
X’s interests in the proceedings are represented by an Independent Children’s Lawyer (“ICL”).
After many years of litigation in both the Children’s Court of New South Wales and in this court, final parenting orders were made by consent on 14 February 2017. Those orders provided for X to live with Father, to spend alternate Sundays with the Mother and for his parents to have “joint parental responsibility” for him.
By an Initiating Application filed 15 March 2019, the Mother now seeks to vary or discharge those orders. Her application has been expressed in a number of ways and in broad terms she seeks orders be made that:
a.She have sole parental responsibility for X;
b.X live with her;
c.X spend time with the Father each alternate Sunday;
d.In the alternative, that the parent with whom X lives have sole parental responsibility for him; and
e.That the Court determine where X ought live.
She also seeks a range of ancillary orders designed to support the parenting arrangements she proposes, as well as orders for financial disclosure, “cancellation of child support”, “cost and compensation” to be paid to her by both the Father and the Independent Children’s Lawyer and the discharge of the Independent Children’s Lawyer.
The matter…

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 NULTY & KENDRICKS

Details

AGLC: Nulty and Kendricks [2019] FCCA 2720
Case: [2019] FCCA 2720
Decision Date: 3 October 2019

CaseChat Overview and Summary

In the matter of *Nulty & Kendricks*, heard before Judge M Neville, the applicant sought to discharge the appointment of an Independent Children’s Lawyer and to discharge or vary final parenting orders that had been made by consent. The proceedings involved a threshold hearing concerning the application of the principles established in *Rice & Asplund*. A significant aspect of the dispute revolved around the risk of the child being exposed to further litigation.

The court was required to determine whether the threshold for varying or discharging the final parenting orders had been met, considering the principles of *Rice & Asplund*. Additionally, the court had to assess the appropriateness of continuing the appointment of the Independent Children’s Lawyer in light of the applications made. The question of costs associated with the applications was also before the court.

Judge Neville dismissed the applicant's initiating application filed on 15 March 2019, as well as the subsequent applications in a case filed on 18 July 2019 and 22 August 2019. This outcome indicates that the court found no grounds to discharge or vary the final parenting orders, nor to discharge the Independent Children's Lawyer, and therefore dismissed all applications brought by the applicant.

Orders

Orders of the court

The Applicant’s Initiating Application filed on 15 March 2019 be dismissed.

The Applicant’s Application in a Case filed on 18 July 2019 be dismissed.

The Applicant’s Application in a Case filed on 22 August 2019 be dismissed.

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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