Roberts and Mansfield - [2011] FamCA 544

FAMILY COURT OF AUSTRALIA

ROBERTS & MANSFIELD

[2011] FamCA 544

FAMILY LAW - CHILDREN – application by the father seeking variation of previous final parenting orders – where the mother seeks the dismissal of the father’s application pursuant to the rule in Rice and Asplund (1979) FLC 90-725 – where the issue was determined as a preliminary matter – consideration of whether there had been a change or new factors arising in the circumstances sufficient to require further hearing – where it was in the best interests of the child that proceedings be concluded – father’s application dismissed.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 65D(2), 69ZN, 69ZQ & 69ZR

Family Law Rules 2004 rr 1.04, 1.06, 1.07, 1.10, 1.12, 10.12, 10.13 & 10.14

F & C & Child Representative [2004] FamCA 568
Marsden & Winch [2009] FamCAFC 152
Rice and Asplund (1979) FLC 907-25

APPLICANT:

Mr Roberts

RESPONDENT:

Ms Mansfield

FILE NUMBER:

ADC

1639

2008

DATE DELIVERED:

14 July 2011

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Dawe J

HEARING DATE:

23 May 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Elekwachi

SOLICITOR FOR THE APPLICANT:

FNE Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Cocks

SOLICITOR FOR THE RESPONDENT:

Ian Charman & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mrs Lindsay

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Services Commission of SA

Orders

The father’s Initiating Application filed on 29 November 2010 is dismissed.
Remove all proceedings from the active pending list.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 1639 of 2008

Mr Roberts

Applicant

And

Ms Mansfield

Respondent

REASONS FOR JUDGMENT

Introduction

The father Mr Roberts brings proceedings against the mother Ms Mansfield in which he seeks that the Court determine the parenting orders to be made in relation to the child of the parties L born in December 2006.
The mother brings an interim application seeking that the proceedings be dismissed relying upon the principles in Rice and Asplund (1979) FLC 907-25 on the basis that there has not been a sufficient change in circumstances to require further litigation.

The hearing

With the consent of all parties, the hearing proceeded on the basis that the preliminary issue would be determined on the papers currently before the Court.
At the interim hearing the following counsel appeared; Mr Elekwachi for the father, Ms Cocks for the mother and Mrs Lindsay for the Independent Children’s Lawyer.
On 23 May 2011 I heard the submissions of counsel. Judgment was reserved.

Background and relevant chronology

The applicant father was born in October 1971 and is therefore aged 39. The mother was born in April 1977 and is therefore aged 34. The history of events in the relationship with the parties has been the subject of some dispute, however, it would appear that having met in 2004, they commenced a relationship in…

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 Roberts and Mansfield

Details

AGLC: Roberts and Mansfield [2011] FamCA 544
Case: [2011] FamCA 544
Decision Date: 14 July 2011

CaseChat Overview and Summary

In the matter of *Roberts and Mansfield*, heard before Dawe J, the father sought to initiate proceedings concerning the parenting arrangements for the parties' child. The specific nature of the dispute, beyond the father's initiation of proceedings, is not detailed in the provided text.

The central legal issue before the court was whether the father's Initiating Application, filed on 29 November 2010, should be dismissed. This required the court to consider the merits or procedural validity of the application as presented.

Dawe J ordered the dismissal of the father's Initiating Application filed on 29 November 2010. Consequently, the court also ordered the removal of all proceedings from the active pending list, indicating a cessation of the legal action.

Orders

Orders of the court

The father’s Initiating Application filed on 29 November 2010 is dismissed.

Remove all proceedings from the active pending list.

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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