Prewett & Mann

This appeal by Mr Prewett, the father, against an order made by Foster FM, on 5 April 2013, which rejected the father’s application for dismissal of Ms Mann’s, the mother’s, application for parenting orders is dismissed. The parents were previously married and are the parents of X, the child, who is aged nine. The parties separated shortly before the child had her first birthday, following which by agreement the child lived with the mother and spent time with the father. Some two and a half years after separation, the mother moved with the child from Sydney’s Eastern Suburbs, where the father also lived, to M, which is south of Sydney. This was the catalyst for an application by the father for parenting orders and injunctions, relevantly to restrain the mother from changing where the child lived to a place outside the Eastern Suburbs of Sydney. Following determination of an application by the father for interim orders, the parties presented proposed consent orders to the Federal Magistrates Court (now Federal Circuit Court). The proposed orders were approved on 5 March 2008. These are the orders which the mother applied to vary by her application filed on 21 December 2012 in the Federal Circuit Court. In his response to that application, filed on 30 January 2013, the father sought that the mother’s application be dismissed. His application was presented upon the basis that the mother failed to establish a significant change in circumstances sufficient to warrant reconsideration of the 5 March 2008 orders. Thus, on the application of the principles referred to in Rice & Asplund (1979) FLC 90-723, it was submitted to his Honour that the mother’s application should be dismissed. The mother resists the appeal and seeks to uphold the decision of the trial judge. The Full Court was satisfied that his Honour’s decision to allow the mother’s application to proceed was properly made and does not warrant appellate interference. The appeal will be dismissed. In the event the father was unsuccessful, the mother sought an order for costs. The father has been wholly unsuccessful and it is proper that an order for costs is made in favour of the mother. Within one (1) month of agreement or assessment as to quantum, the appellant father shall pay the costs of the respondent mother in relation to this appeal.