Paglietta and Caracini

FAMILY COURT OF AUSTRALIA

PAGLIETTA & CARACINI [2008] FamCA 725

FAMILY LAW – PRACTICE AND PROCEDURE - Application - Dismissal or Striking Out - Rice & Asplund
FAMILY LAW – COSTS - Circumstances justifying order

Family Law Act 1975 (Cth)

Rice & Asplund (1978) 6 FamLR 570

APPLICANT: Mr Paglietta

RESPONDENT: Ms Caracini

FILE NUMBER: SYC 2546 of 2008

DATE DELIVERED: 11 August 2008

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Justice Le Poer Trench

HEARING DATE: 11 August 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Mulvey

SOLICITOR FOR THE APPLICANT: Logical Legal Solicitors

COUNSEL FOR THE RESPONDENT: Ms Cleary

SOLICITOR FOR THE RESPONDENT: Georgiou & Co

Orders

1. The Response to an Application in a Case filed by the mother on 13 June 2008 be dismissed.

2. I reserve each party’s costs to be determined by the trial Judge or by application once final parenting orders have been made.

3. I request the docket Registrar list this matter before herself for directions for the parties to meet with a Family Consultant.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 2546 of 2008

Mr Paglietta

Applicant

And

Ms Caracini

Respondent

REASONS FOR JUDGMENT

1. Before the Court are competing applications between the parents in relation to the only child of the union, born in June 1997, now 11 years of age.  The proceedings were commenced on 5 May 2008 by application for final orders filed by the father.  In that application, in general terms, he seeks an order for equal shared time in respect of the child on a week about basis. There are other orders sought along with that principal application. 

2. 2.        The mother filed a response on 11 June 2008 and she sought that the husband's application be dismissed.  The application is framed having regard to the decision of Rice & Asplund (1978) 6 FamLR 570. In that decision at page 572 the following was said by the Full Court:

   The principles which, in my view, should apply in such cases are that the Court should have regard to any earlier order and to the reasons for and the material on which that order was based.  It should not lightly entertain an application to reverse an earlier custody order.  To do so would be invite endless litigation for, as Mr Brand submitted, change is an ever present factor in human affairs. Therefore, the Court would need to be satisfied by the applicant that, to quote Barber J:

   There is some changed circumstance which will justify such a serious step, some new factor arising or at any rate some factor which was not disclosed at the previous hearing which would have been material (passage quoted in Hayman (1976) FLC 90-140).

   These are not necessarily matters for a preliminary submission but they are matters that a judge should consider in his reasons for decision.  It…