RUNDLE & JAYNES - [2020] FCCA 1629

FEDERAL CIRCUIT COURT OF AUSTRALIA

RUNDLE & JAYNES

[2020] FCCA 1629

Catchwords:
FAMILY LAW – Parenting – application for summary dismissal – Rice & Asplund threshold issue – consent orders made in 2017 – father has re-partnered and had 1 child from that relationship – mother has re-partnered and has had 3 children from that relationship - where the father seeks that the child live in a week about arrangement from 2022 – where the mother is resistant to this.

Legislation:

Family Law Act 1975 (Cth), s.45A

Federal Circuit Court Rules 2001 (Cth) r.13.10

Cases cited:

Marsden & Winch [2009] FamCAFC 152

McEnearney & McEnearney (1980) FLC 90-866

Poisat & Poisat [2014] FamCAFC 128

Rice & Asplund (1979) FLC 90-725

Searson & Searson [2017] FamCAFC 119

SPS & PLS [2008] FamCAFC 16

Stativa & Stativa[2015] FamCAFC 170

Tindall & Saldo [2016] FamCAFC 146

Applicant:

MR RUNDLE

Respondent:

MS JAYNES

File Number:

SYC 7123 of 2019

Judgment of:

Judge M Neville

Hearing date:

2 June 2020

Date of Last Submission:

2 June 2020

Delivered at:

Sydney

Delivered on:

19 June 2020

REPRESENTATION

Solicitors for the Applicant:

Mr Williams of Williams & Co Solicitors

Counsel for the Respondent:

Ms Sproston

Solicitors for the Respondent:

Lourdes Legal

THE COURT ORDERS THAT:

The mother’s application for summary dismissal of the father’s Amended Initiating Application filed on 24 February 2020 be dismissed.

THE COURT ORDERS, IN CHAMBERS, THAT:

Pursuant to s.11F of the Family Law Act1975, the parties attend a Child Dispute Conference with a Family Consultant nominated by the Child Dispute Section on Level 2 in this Registry on 4 September 2020 at 10.00am for the Applicant and 11.00am for the Respondent and pursuant to section 11C of the Act, such conference be reportable. The parties are advised that if a person fails to comply with this order or any instruction the consultant gives to the person, the consultant must report the failure to the Court.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 7123 of 2019

MR RUNDLE

Applicant

And

MS JAYNES

Respondent

REASONS FOR JUDGMENT

Mr Rundle (“the father”) and Ms Jaynes (“the mother”) are the parents of X (“X”), presently aged 7 years.
On 8 February 2017, final orders were made, by consent, resolving parenting matters between the parties.
The father now seeks to vary those parenting orders such that X eventually live with the parents in an equal time and week about arrangement.
The mother seeks the application be summarily dismissed and invokes the principle in Rice & Asplund.
The application for summary dismissal was heard on 2 June 2020.

Background

The parties married in 2011 and X was born in 2013. The parties separated on 22 July 2015 when X was aged 2 years and were divorced on 19 November 2016.
The parties entered into final parenting orders, by consent,…

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 RUNDLE & JAYNES

Details

AGLC: RUNDLE & JAYNES [2020] FCCA 1629
Case: [2020] FCCA 1629
Decision Date: 19 June 2020

CaseChat Overview and Summary

In the matter of *Rundle & Jaynes*, heard by Judge M Neville, the dispute concerned parenting arrangements for a child. The father sought to vary existing consent orders made in 2017 to implement a week-about living arrangement for the child, commencing in 2022. The mother, who had re-partnered and had three children from that relationship, was resistant to this proposed change. The father had also re-partnered and had one child from that relationship.

The central legal issue before the court was whether the father's application to vary the parenting orders should be summarily dismissed, as sought by the mother. This required the court to consider the threshold established in *Rice & Asplund* for varying final parenting orders, particularly in circumstances where significant time has passed since the original orders were made and the parties' family circumstances have changed.

The court determined that the mother's application for summary dismissal should be dismissed. The reasoning applied was that the father's application raised arguable issues that warranted further consideration, and therefore did not meet the stringent threshold for summary dismissal. The court found that the changes in the parties' circumstances, including the birth of new children to both parents, were potentially significant enough to justify a re-examination of the existing parenting orders.

Consequently, the court ordered that the mother's application for summary dismissal be dismissed. Further, pursuant to s.11F of the *Family Law Act 1975*, the parties were directed to attend a Child Dispute Conference with a Family Consultant on 4 September 2020. This conference was to be reportable under s.11C of the Act, with parties advised that failure to comply with the order or the consultant's instructions would be reported to the Court.

Orders

Orders of the court

The mother’s application for summary dismissal of the father’s Amended Initiating Application filed on 24 February 2020 be dismissed.

THE COURT ORDERS, IN CHAMBERS, THAT:

Pursuant to s.11F of the Family Law Act 1975, the parties attend a Child Dispute Conference with a Family Consultant nominated by the Child Dispute Section on Level 2 in this Registry on 4 September 2020 at 10.00am for the Applicant and 11.00am for the Respondent and pursuant to section 11C of the Act, such conference be reportable. The parties are advised that if a person fails to comply with this order or any instruction the consultant gives to the person, the consultant must report the failure to the Court.

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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