POPE & LETTEN

[2014] FCCA 2032

FEDERAL CIRCUIT COURT OF AUSTRALIA

POPE & LETTEN [2014] FCCA 2032

Catchwords:
FAMILY LAW – Parenting – Rice & Asplund – whether there has been a change in circumstances – application dismissed.

Legislation:

Family Law Act 1975

DL & W [2012] FamCAFC 5
Lagham & Lagham (1981) FLC 91-014
Marsden & Winch [2009] FamCAFC 152
In the marriage of McEnerney [2001] FamCA 344
Rice v Asplund (1979) FLC 90-725

Applicant: MR POPE

Respondent: MS LETTEN

File Number: MLC 5706 of 2013

Judgment of: Judge McGuire

Hearing date: 29 August 2014

Date of Last Submission: 29 August 2014

Delivered at: Melbourne

Delivered on: 12 September 2014

REPRESENTATION

Counsel for the Applicant: Ms Williams

Solicitors for the Applicant: Septimus Jones & Lee

Counsel for the Respondent: Ms Tulloch

Solicitors for the Respondent: Lewenberg & Lewenberg

ORDERS

1. The mother’s application filed by way of an Amended Response on 18 June 2014 seeking parenting orders is dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 5706 of 2013

MR POPE

Applicant

And

MS LETTEN

Respondent

REASONS FOR JUDGMENT

The Application

1. The mother is the applicant in proceedings concerning two children, X, born (omitted) 2002 (aged 12 years) and Y, born (omitted) 2004 (aged 10 years).

2. On 17 January 2014 my colleague Judge Hughes made final orders after a six-day trial held over November and December 2013. Those orders provided inter alia:

   a)that the parents have equal shared parental responsibility for X and Y;

   b)that X and Y live with the mother;

   c)that X and Y spend the time with the father as follows:

   i)each second weekend from after school on Thursday until the commencement of school on Monday;

   ii)any other week from after school on Thursday until the commencement of school on Friday;

   iii)for half of all school holidays;

   iv)such additional or alternative times as agreed between the parties.

3. The mother filed her application on 18 June 2014, some five months after her Honour’s final orders.  The respondent father raises an issue that there has been no material, substantial or significant change in circumstances since the making of those orders and that consequently the application should be dismissed under what is commonly known as the principle in Rice v Asplund[1].

   [1] (1979) FLC 90-725

4. The mother’s application came before Judge Stewart for a first mention and directions in a duty list on 26 July 2014.  Her Honour then listed it for hearing with a one-day duration on 29 August 2014.  Her Honour was unable to hear the matter due to her conduct of an ongoing trial, and hence the matter was placed before me.  When called on before me, counsel for the mother argued that the Rice v Asplund issue should be determined as a part of a full trial with testing of the evidence and with an estimated hearing time of two to three days. Counsel…