RUPERT & RUPERT - [2020] FCCA 1469

FEDERAL CIRCUIT COURT OF AUSTRALIA

RUPERT & RUPERT

[2020] FCCA 1469

Catchwords:
FAMILY LAW – Parenting – application for summary dismissal – Rice & Asplund threshold issue – consent orders made – father relocates closer to child’s residence – allegations child’s educational, social and developmental needs unmet by home schooling – allegations consent orders are not being implemented.

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

SPS & PLS [2008] FamCAFC 16

Stativa & Stativa[2015] FamCAFC 170

Tindall & Saldo [2016] FamCAFC 146

Applicant:

MR RUPERT

Respondent:

MS RUPERT

File Number:

WOC 229 of 2020

Judgment of:

Judge M Neville

Hearing date:

1 June 2020

Date of Last Submission:

1 June 2020

Delivered at:

Sydney

Delivered on:

5 June 2020

REPRESENTATION

Solicitors for the Applicant:

Mr Buckley of Thexton Lawyers

Counsel for the Respondent:

Mr Ford

Solicitors for the Respondent:

Maguire & Mcinerney Lawyers

THE COURT ORDERS THAT:

The Initiating Application filed by the father on 27 February 2020 be dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

WOC 229 of 2020

MR RUPERT

Applicant

And

MS RUPERT

Respondent

REASONS FOR JUDGMENT

Mr Rupert (the father) and Ms Rupert (the mother) are the parents of X, presently aged 17 years, Y, presently aged 14 years and Z, presently aged 8 years.
On 3 December 2018 final orders were made, by consent, resolving parenting and property matters between the parties.
The father now seeks to vary those parenting orders insofar as they relate to Z. The mother seeks the application be summarily dismissed and invokes the principle in Rice & Asplund.
The application for summary dismissal was heard on 1 June 2020.

Background

The parents started to live together in 1998. They married in 2000. X was born in 2002, Y was born in 2005 and Z was born in 2012. All 3 children were born in the B region of New South Wales.
The parties separated in October 2018. At the time of separation, the family was living on the C Region in Queensland. Upon separation, the mother returned to City D, New South Wales, taking the children with her. The father remained on the C Region.
On 24 November 2018, the parties signed consent orders in relation to both property and parenting matters. On 29 November 2018, the parties filed an Application for Consent Orders together with the proposed orders. The consent orders were then made on 3 December 2018 (“the consent orders”).
The consent orders provided, relevantly:
a)That the parents have equal shared parental responsibility for the children.
b)That the children live with the mother.
c)X and Y spend time with the father at times they may…

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 RUPERT & RUPERT

Details

AGLC: RUPERT & RUPERT [2020] FCCA 1469
Case: [2020] FCCA 1469
Decision Date: 5 June 2020

CaseChat Overview and Summary

In the matter of *Rupert & Rupert*, heard by Judge M Neville, the father sought to vary existing consent orders concerning parenting arrangements for the child. The father had relocated closer to the child’s residence, and the mother alleged that the child’s educational, social, and developmental needs were not being met through home schooling, and that the existing consent orders were not being implemented. The mother applied for summary dismissal of the father's application.

The central legal issue before the court was whether the father's application to vary the consent orders should be summarily dismissed, applying the threshold test established in *Rice & Asplund*. This required the court to determine if the mother's allegations, if proven, would be sufficient to warrant a variation of the existing orders, or if the father's application lacked a sufficient evidentiary basis to proceed to a full hearing.

Judge M Neville reasoned that the mother's allegations concerning the unmet educational, social, and developmental needs of the child, as well as the non-implementation of the consent orders, raised serious issues that warranted further investigation. The court found that these allegations, if substantiated, could constitute a material change in circumstances or demonstrate that the current arrangements were not in the child's best interests, thus meeting the threshold for a variation. Consequently, the court dismissed the father's Initiating Application filed on 27 February 2020.

Orders

Orders of the court

The Initiating Application filed by the father on 27 February 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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