O'Brien & O'Brien

The case of O'Brien & O'Brien involved a dispute between the parents regarding the parenting orders concerning their children. The primary judge dismissed the mother's application for a variation of the 2013 consent orders, which had been made by the parties. The mother appealed against the orders made by Judge Dunkley on 21 December 2016, and the father cross-appealed against the dismissal of his application for contravention orders. The legal issues that the court had to decide included whether the primary judge had erred in his application of the Rice and Asplund test and whether he had improperly restricted his consideration of the evidence. The court also had to determine whether the primary judge had erred in dismissing the mother's application in its entirety and whether the order for indemnity costs was appropriate.

The court found that the primary judge had erred in his application of the Rice and Asplund test, which was not aligned with the Full Court authorities. The court also found that the primary judge had impermissibly restricted his consideration of the evidence by not considering several orders sought on discrete issues not covered in the consent orders. The court further found that the primary judge had erred in dismissing the mother's application in its entirety and that the order for indemnity costs was not supported by the evidence. The court held that the mother's filing of the application was not for an improper purpose, and the father's counsel had not impugned the mother's motives. The court also found that the primary judge had denied the mother procedural fairness by not allowing her to address the point of her apparent mala fides. The court concluded that the appealable error demonstrated required the order to be set aside and the matter to be remitted.

The court allowed the appeal against the orders made by Judge Dunkley on 21 December 2016. Order 2 of the orders made on 21 December 2016 was set aside, and the appellant mother's Further Amended Initiating Application filed on 7 September 2016 was remitted to the Federal Circuit Court of Australia for rehearing by a judge other than Judge Dunkley. Order 1 of the orders made on 21 December 2016 was set aside insofar as it provided for payment of the amount of $9,611, and the amount of $915 was inserted in lieu thereof. The respondent father was ordered to pay the appellant mother's costs of and incidental to the appeal, such costs to be agreed or assessed. The form of the order was subject to the entry of the order in the Court's records.