Rowe and Helbig - [2016] FamCA 461

FAMILY COURT OF AUSTRALIA

ROWE & HELBIG

[2016] FamCA 461

FAMILY LAW – PRACTICE AND PROCEDURE – Slip rule – Where the father seeks to amend final orders – Where the Court amends one order but dismisses the application to amend the other order

Family Law Rules 2004 (Cth) r 17.02

Gludau & Gludau (No. 2) (2013) FLC 93-562
Medlow v Medlow (No. 2) [2016] FamCAFC 63

APPLICANT:

Mr Rowe

RESPONDENT:

Ms Helbig

FILE NUMBER:

PAC

5421

2010

DATE DELIVERED:

10 June 2016

PLACE DELIVERED:

Sydney

PLACE HEARD:

IN CHAMBERS

JUDGMENT OF:

Rees J

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

O’Sullivan Legal

SOLICITOR FOR THE RESPONDENT:

In person

Orders

IT IS ORDERED

That the application of the father, filed 31 May 2016 to amend Order 15 made 9 March 2015 is dismissed.
Pursuant to the slip rule, Order 16 made 9 March 2016 is amended and the following order is made:
16.That, subject to Order 17, from the second weekend following the period in Order 14, the children shall spend unsupervised time with the mother, each alternate weekend, from Friday afternoon when school finishes until Monday morning when school begins, with the mother or her nominee to collect the children from school and return them to school.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Rowe & Helbig has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: PAC 5421 of 2010

Mr Rowe

Applicant

And

Ms Helbig

Respondent

REASONS FOR JUDGMENT

Proceedings between Mr Rowe (“the father”) and Ms Helbig (“the mother”) in relation to parenting were heard over a number of days and judgment was delivered on 9 March 2015.
The orders, relevantly, provided for a graduated program of time for the children to spend with the mother. A dispute has arisen about the proper form of those orders.
On 31 May 2016, the father filed an application to amend orders 15 and 16 made on 9 March 2015, pursuant to the slip rule. That application was supported by an affidavit sworn 31 May 2016. That application is opposed by the mother.
Orders were made for the mother to file any affidavit material upon which she relied and for both parties to make written submissions in relation to the application. The mother relies upon a response filed 8 June 2016, an affidavit sworn by her on 8 June 2016 and written submissions dated 8 June 2016. By her response, the mother asks that the application be dismissed and that the father pay her costs.

THE LAW

Rule 17.02, which came into effect on 1 January 2016, provides:
(1)       The court may at any time vary or set aside an order, if:
(a) it was made in the absence of a party; or
(b)   it was obtained by fraud; or
(c)   it is interlocutory; or
(d)   it is an injunction or for the appointment of a…

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 Rowe and Helbig

Details

AGLC: Rowe and Helbig [2016] FamCA 461
Case: [2016] FamCA 461
Decision Date: 10 June 2016

CaseChat Overview and Summary

The case of *Rowe and Helbig* concerned an application by the father to amend an order made on 9 March 2015. The application sought to alter Order 15 of the original judgment. The proceedings were heard by Rees J.

The primary legal issue before the court was whether the father's application to amend Order 15 should be granted. Additionally, the court considered the application of the slip rule to amend Order 16, also made on 9 March 2015, to reflect the intended orders of the court.

Rees J dismissed the father's application to amend Order 15. However, the court exercised its power under the slip rule to amend Order 16. This amendment clarified the arrangements for the children's time with the mother, stipulating that from the second weekend following a specified period, the children would spend unsupervised time with the mother on alternate weekends, commencing Friday afternoon and concluding Monday morning, with specific collection and return arrangements detailed.

Orders

Orders of the court

IT IS ORDERED

That the application of the father, filed 31 May 2016 to amend Order 15 made 9 March 2015 is dismissed.

Pursuant to the slip rule, Order 16 made 9 March 2016 is amended and the following order is made:

16. That, subject to Order 17, from the second weekend following the period in Order 14, the children shall spend unsupervised time with the mother, each alternate weekend, from Friday afternoon when school finishes until Monday morning when school begins, with the mother or her nominee to collect the children from school and return them to school.

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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