P & S (No. 2)

[2007] FMCAfam 1039

FEDERAL MAGISTRATES COURT OF AUSTRALIA

P & S (No.2) [2007] FMCAfam 1039

FAMILY LAW – Rice v Asplund – sole parental responsibility – receipt of school reports.

Family Law Act 1975, s.60CA

F & C [2004] FamCA 568
Rice & Asplund (1979) FLC 90-215

Applicant: P

Respondent: S

File Number: SYC 3853 of 2007

Judgment of: Altobelli FM

Hearing date: 2 October 2007

Date of Last Submission: 2 October 2007

Delivered at: Parramatta

Delivered on: 6 December 2007

REPRESENTATION

Applicant: Self Represented

Respondent: Self Represented

ORDERS

1. The Application filed 29 May 2007 is dismissed.

2. Should the Father commence proceedings relating to the Child at some future time, I direct that, if possible, the proceedings be listed before me. If it is not possible to list the matter before me, I direct the parties to file in Court in those proceedings a copy of the orders I have made today and a copy of these reasons.

3. All outstanding applications otherwise be dismissed and the matter removed from the list of cases awaiting finalisation.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYC 3853 of 2007

P

Applicant

And

S

Respondent

REASONS FOR JUDGMENT

Introduction

1. This case is about B who was born in September 1996, and is eleven years old. B’s father, P, is the applicant and, in substance, he seeks orders that would enable him to receive P’s school reports. That is the only order he seeks. B’s mother is S. She opposes that application and asks the court to summarily dismiss the application. She says, in effect, that it is not in B’s best interest for there to be further litigation in relation to him. She invokes the rule in Rice & Asplund (1979) FLC 90-215 (“Rice & Asplund”). I agreed with the mother’s submissions that in this case the Rice v Asplund issue needed to be dealt with as a distinct and preliminary issue. The history of the litigation between these parents is extensive and complex. The harsh reality is that the first order made in relation to B was made on 15 June 1998, when he was not even two years old. For most of his life, B’s parents have been engaged in litigation relating to him.

Background

1. The father is 41 years old. He lives in Sydney and is a computer programmer. The mother is 34 years old. She also lives in Sydney, and is a home maker. The parents appear not to have cohabited. B is eleven years old. He lives with his mother and a step-sibling.

Issues

1. In a Rice v Asplund or summary dismissal application in this context the issues are quite discrete. The issues may be framed as a series of questions

   a)Has there been a change of circumstances to a degree that would justify a reconsideration, even in part, of the previous orders made in relation to B?

   b)Whether or not there has been a change of circumstances is it nonetheless in B’s best interests that his father’s application proceeds…