RATHBURN & DELREY - [2021] FCCA 1042

FEDERAL CIRCUIT COURT OF AUSTRALIA

RATHBURN & DELREY

[2021] FCCA 1042

Catchwords:
FAMILY LAW – Parenting – consideration of the rule in Rice & Asplund – finely balanced case – threshold met.

Legislation:

Family Law Act 1975 (Cth), ss.60CC, 64B

Cases cited:

Bennett& Bennett (1991) FLC 92-191
D & Y (1995) FLC 92-581
In the Marriage of Rice and Asplund (1979) FLC 90-725, 6 Fam LR 570
King and Finneran [2001] FamCA 344
Marsden and Winch [2009] FamCAFC 152
Searson & Searson [2017] FamCAFC 119
SPS & PLS [2008] FamCAFC 16

Applicant:

MR RATHBURN

Respondent:

MS DELREY

File Number:

BRC 7105 of 2020

Judgment of:

Judge Lapthorn

Hearing date:

26 November 2020

Date of Last Submission:

26 November 2020

Delivered at:

Brisbane

Delivered on:

17 May 2021

REPRESENTATION

Solicitors for the Applicant:

ABA Lawyers

Solicitors for the Respondent:

Self represented

ORDERS

The Response filed 21 July 2020 be dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 7105 of 2020

MR RATHBURN

Applicant

And

MS RATHBURN

Respondent

REASONS FOR JUDGMENT

Introduction

I am asked to determine an application to vary final parenting orders made by consent on 30 August 2017 (the 2017 orders) in relation to three boys: 12 year old X, 10 year old Y, and 8 year old Z. These orders provided for the parents to have equal shared parental responsibility and for the boys to live primarily with their mother. The boys spend time with their father at different times over an eight week cycle. I will set out that order later in this judgment.
If the father is successful in his application filed 10 June 2020, he would seek orders for the children to live with the parties in a week about arrangement. The mother opposes his application and seeks the application be dismissed by way of a preliminary determination without the necessity of proceeding to trail. It is her case that the father has not demonstrated a change of circumstance significant enough to warrant a new hearing in accordance with the decision in Rice & Asplund[1].
[1] In the Marriage of Rice and Asplund (1979) FLC 90-725, 6 Fam LR 570
Throughout this judgment I will refer to the applicant as the father and the respondent as the mother. X, Y and Z will be collectively referred to as either the children or the boys. I mean no disrespect in doing so.

Legal Approach

Although the court has the power to vary or set aside parenting orders[2], a court is usually reluctant to entertain a fresh application for parenting arrangements because it is rarely in a child’s best interest to have ongoing litigation about his or her care and wellbeing. The Full Court of the Family Court in Rice & Asplund held:
[The court] should not lightly entertain an application to reverse an earlier custody order. … the…

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 RATHBURN & DELREY

Details

AGLC: RATHBURN & DELREY [2021] FCCA 1042
Case: [2021] FCCA 1042
Decision Date: 17 May 2021

CaseChat Overview and Summary

In the matter of *Rathburn & Delrey*, heard before Judge Lapthorn, the dispute concerned parenting arrangements. The applicant sought orders for the children to live with them and spend time with the respondent, while the respondent sought to dismiss the applicant's application.

The central legal issue before the Court was whether the threshold established by the rule in *Rice v Asplund* had been met. This rule requires an applicant to demonstrate that there are substantial reasons for making an order that deviates from the status quo, particularly when considering the impact on the children. The Court was tasked with determining if the circumstances presented by the applicant were sufficiently significant to warrant a change in the existing parenting arrangements.

Judge Lapthorn found that the case was finely balanced, indicating a careful consideration of competing arguments and evidence. Ultimately, the Court determined that the threshold established by the rule in *Rice v Asplund* had been met, justifying a departure from the status quo. This determination suggests that the Court was satisfied that substantial reasons existed to alter the existing parenting arrangements in favour of the applicant's proposed orders.

Consequently, the Court ordered that the Response filed on 21 July 2020 be dismissed.

Orders

Orders of the court

The Response filed 21 July 2020 be dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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