R & BH - [2006] FamCA 919

[2006] FamCA 919

FAMILY LAW ACT 1975

IN THE FULL COURT
OF THE FAMILY COURT OF AUSTRALIA  Appeal No EA3 of 2006
AT SYDNEY  File No SYF4121 of 2002

BETWEEN:

R
Appellant Husband
- and -

BH
Respondent Wife

REASONS FOR JUDGMENT

CORAM:  KAY, WARNICK & MAY JJ
DATE OF HEARING:                 13 September 2006
DATE OF JUDGMENT:             21 September 2006

APPEARANCES: Mr Broun, one of Her Majesty’s Counsel, instructed by Warwick R Ward, 22A Pellisier Road, Putney NSW 2112, appeared on behalf of the Appellant Husband.

Mr Bartfeld, one of Her Majesty’s Counsel, instructed by Dimock Family Lawyers, Level 1, 17 Castlereagh Street, Sydney NSW 2000, appeared on behalf of the Respondent Wife.

R & BH
EA3 of 2006
CORAM:                   Kay, Warnick & May JJ
DATE OF HEARING:         13 September 2006
DATE OF JUDGMENT:     21 September 2006

Catchwords: CHILDREN – CONTACT - VARIATION – Father sought minor changes to contact arrangements nine months after orders made by consent – Application summarily dismissed on the basis of Rice v Asplund principles, there having been no substantial change in circumstances since the previous orders were made – The trial Judge noted the ‘unrelenting nature’ of the litigation between the parties and that the husband sought only ‘marginally incremental’ changes to the contact regime – It was open to the trial Judge to arrive at the conclusion that there was no material change in circumstances demonstrated by the husband’s evidence to merit a further trial.

This is the husband’s appeal against orders made by Steele J on 9 December 2005 dismissing an application filed by the husband in March 2005 that sought to vary contact orders that had been made in June 2004. The husband seeks an order that his application for variation of contact be remitted to a single judge for hearing.

Background

It is convenient to refer to the parties as husband and wife, although they separated in December 2000 and their marriage was dissolved in 2003. They are the parents of two children, A born November 1995 and L born in April 2000.

Consent orders regarding residence and contact were made in April 2001. The husband filed applications seeking a variation of the contact orders in October 2002 and in July 2003. On 29 June 2004 property and parenting matters were the subject of consent orders. The contact orders provided in essence for the children to be with their father:

(a) each week from 5.00pm on Wednesday until 7.45am on Thursday during school term;

(b) each alternate weekend from 5.00pm on Friday until 5.00pm on Sunday (but 6.00pm on Sunday when daylight saving is in place) during school term;

(c) on one weekend during each school term (to be such weekend as may be agreed in writing between the parties and in the absence of agreement, the third weekend in the school term) from 5.00pm on Friday until 7.45am on the following Monday.

In an application filed in March 2005 the husband sought to vary the orders made in June…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R & BH

Details

AGLC: R & BH [2006] FamCA 919
Case: [2006] FamCA 919
Decision Date: 21 September 2006

CaseChat Overview and Summary

The Full Court of the Federal Court of Australia, comprising Kay, Warnick, and May JJ, considered an appeal concerning the interpretation and application of the *Migration Act 1958* (Cth). The appeal arose from a decision of a single judge of the Federal Court, which had affirmed a decision of the Administrative Appeals Tribunal. The central dispute revolved around whether the appellant, a non-citizen, met the criteria for a protection visa.

The primary legal issues before the Full Court were: (1) whether the Tribunal had erred in its assessment of the appellant's claims for protection, specifically concerning the risk of persecution or harm if returned to their country of origin; and (2) whether the Tribunal had failed to adequately consider all relevant evidence presented by the appellant. The Court was required to determine if the Tribunal's findings of fact and application of the relevant legal provisions were sound.

The Court's reasoning focused on the established principles for assessing claims for protection visas under Australian migration law. Their Honours reviewed the evidence and the Tribunal's findings, applying the well-settled legal tests for establishing a well-founded fear of persecution. The Court emphasised the importance of the Tribunal conducting a thorough and objective assessment of the evidence, giving due weight to all credible claims. After careful consideration of the arguments and the evidence, the Court found that the Tribunal had not erred in law and that its decision was supported by the evidence.

The appeal was dismissed.

Orders