SCVG and KLD - [2009] FMCAfam 708

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SCVG & KLD

[2009] FMCAfam 708

FAMILY LAW – Rice & Asplund threshold issue – whether change of circumstances warrants revisiting parenting orders – no existing order for parental responsibility – child with serious ongoing medical condition – threshold met.

Family Law Act 1975, ss.60CC, 61C, 61DA

Cortes & Cabrera [2007] FMCAfam 293
G & G (2000) FamCA 12
Gotch & Gotch [2009] FamCAFC 3
King & Finneran (2001) FLC 93-079
Marriage of McEnearney (1980) FLC 90-866
Miller & Harrington [2008] FamCAFC 150
Rice & Asplund (1979) FLC 90-725
SPS & PLS [2008] FamCAFC 16
SCVG & KLD [2008] FMCAfam 1147

Applicant:

SCVG

Respondent:

KLD

File Number:

SYC4380 of 2008

Judgment of:

Altobelli FM

Hearing date:

6 April 2009

Date of Last Submission:

6 April 2009

Delivered at:

Sydney

Delivered on:

10 July 2009

REPRESENTATION

Counsel for the Applicant:

Mr Richardson SC

Solicitors for the Applicant:

Adrian Twigg & Co

Counsel for the Respondent:

Ms Rees

Solicitors for the Respondent:

Macphillamys

ORDERS

The Mother’s Application for summary dismissal of the Father’s Application filed 29 July 2008 be dismissed.
If the Mother is to amend the Response filed 1 October 2008, an Amended Response must be filed and served within 28 days.
The matter is adjourned to 17 August 2009 at 9.30am for mention.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYC4380 of 2008

SCVG

Applicant

And

KLD

Respondent

REASONS FOR JUDGMENT

Introduction

This is, in effect, what is commonly known as an application for summary dismissal of an application for parenting orders relating to two children, [X] who is seven years old, and [Y] who will be five years old next month. The children’s father is the applicant in this case. He would like to vary orders made by Moore J on 17 May 2006. The children’s mother is the respondent who asks the Court to dismiss the father’s application on a summary basis. In effect she asks the Court not to allow the father’s application to proceed. The mother argues that there are no changed circumstances that would warrant a reconsideration of the orders made 17 May 2006. The mother’s application is commonly known as a Rice & Asplund application, based on the case of that name reported at (1979) FLC 90-725.

Background

At an earlier stage of these proceedings I dismissed an oral application made by the father and published my reasons on 24 October 2008 reported at [2008] FMCAfam 1147. I adopt and incorporate into the present reasons for judgment the Background referred to at paragraphs 2-4 of that judgment.
The father’s application filed 29 July 2008 seeks to set aside and discharge the orders of Moore J from an operative date. He applies for equal shared parental responsibility, for the children to be returned to Sydney and to live with him, and to…

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 SCVG and KLD

Details

AGLC: SCVG and KLD [2009] FMCAfam 708
Case: [2009] FMCAfam 708
Decision Date: 10 July 2009

CaseChat Overview and Summary

The case of SCVG and KLD involved a dispute between a mother and father over child custody arrangements. The matter was heard by the Family Court of Australia. The mother filed an application for summary dismissal of the father’s application, which was subsequently opposed by the father. The legal issues before the court centred on the appropriate course of action regarding the mother's application for summary dismissal and the necessity of amending the response filed by the mother.

The court deliberated on whether the mother's application for summary dismissal should be dismissed, and if so, whether the mother should be granted leave to amend her response. The court considered the procedural fairness and the implications of the mother's application for summary dismissal, ultimately concluding that the application should be dismissed. The court also required that if the mother were to amend her response, she must file and serve an amended response within a specified timeframe.

Following these determinations, the court adjourned the matter to a future date for further mention. The dismissal of the summary dismissal application and the requirement for an amended response if necessary, were intended to ensure that the matter could proceed with appropriate procedural steps. The adjournment allowed for any further submissions or evidence to be presented at a later stage.

Orders

Orders of the court

1. The Mother’s Application for summary dismissal of the Father’s Application filed 29 July 2008 be dismissed.

2. If the Mother is to amend the Response filed 1 October 2008, an Amended Response must be filed and served within 28 days.

3. The matter is adjourned to 17 August 2009 at 9.30am for mention.

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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