Shaw and Brennan & Anor - [2011] FamCA 538

FAMILY COURT OF AUSTRALIA

SHAW & BRENNAN AND ANOR

[2011] FamCA 538

FAMILY LAW - CHILDREN – Final parenting orders made at previous hearing – parties seek to vary final orders – mother also seeks new parenting orders regulating father’s care of the child – Rice v Asplund (1979) FLC 90-725 principles – where there has been no change in circumstances – some orders proposed by the parties are made by consent – all other applications for parenting orders dismissed

FAMILY LAW - COSTS – Independent Children’s Lawyer’s application for costs of and incidental to previous hearing – father agrees to pay his share of the costs – mother opposes the application for costs – where the mother is unemployed – where the mother’s husband earns comfortable income – finding that the mother’s husband’s income relevant to her capacity to pay costs – parties shall bear the costs equally

FAMILY LAW - COSTS – Father’s application for costs in opposing mother’s application for parenting orders – where both parties are self-represented – costs are confined to liabilities incurred for professional legal services – costs do not include compensation for litigant in preparing and conducting case – father’s application dismissed – Mother’s application for costs – where mother’s costs relates to legal consultations – no basis for mother’s application – mother’s application dismissed

FAMILY LAW - PROCEDURAL ORDERS – Injunction – Father’s application to restrain mother from filing further applications – mother’s applications were not frivolous, vexatious or abuse of process – application dismissed – father’s application to destroy subpoenaed documents from previous hearing – existing orders restrain mother from showing documents to the child – mother wishes to retain documents – order for mother to deliver up and destroy all subpoenaed documents

Family Law Act 1975 (Cth) ss 21(2), 38(2), 61B, 64B, 65DAC, 65DAE, 65LA, 68B, 114, 117(2A)(g), 117(3), 118
Family Law Rules 2004 rr 11.04(1)(b), 15.30(4), 15.27(2)
High Court Rules 2004 r 8.07.2(a)

Allesch v Maunz (2000) 203 CLR 172
Cachia v Hanes (1994) 179 CLR 403
Hearne v Street (2008) 235 CLR 125
Marsden v Winch (2009) 42 Fam LR 1
Miller v Harrington (2008) 39 Fam LR 654
Northern Territory of Australia v GPAO (1999) 196 CLR 553
Re JJT; Ex parte Victoria Legal Aid (1998) 195 CLR 184
Rice v Asplund (1979) FLC 90-725
Marriage of Vlug & Poulos (1997) FLC 92-778
Williams v Spautz (1992) 174 CLR 509

APPLICANT:

Mr Shaw

1st RESPONDENT:

Ms Brennan

2nd RESPONDENT:

Mr Brennan

INDEPENDENT CHILDREN’S LAWYER:

Adamson Solicitors

FILE NUMBER:

SYF

3250

2006

DATE DELIVERED:

12 July 2011

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Sydney

JUDGMENT OF:

Austin J

HEARING DATE:

15, 16 & 17 June 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Not Applicable

SOLICITOR FOR THE APPLICANT:

Not Applicable

COUNSEL FOR THE 1ST RESPONDENT:

Not Applicable

SOLICITOR FOR THE 1ST RESPONDENT:

Not Applicable

COUNSEL FOR THE 2ND RESPONDENT:

Not Applicable

SOLICITOR FOR THE 2ND RESPONDENT:

Middletons Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr P. Braine

SOLICITOR…

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 Shaw and Brennan & Anor

Details

AGLC: Shaw and Brennan & Anor [2011] FamCA 538
Case: [2011] FamCA 538
Decision Date: 12 July 2011

CaseChat Overview and Summary

The case of *Shaw and Brennan & Anor* involved applications to vary final parenting orders previously made by Austin J. The mother sought to vary these orders and also sought new orders concerning the father's care of the child. The court considered the principles established in *Rice v Asplund*, particularly in circumstances where there had been no change in circumstances since the final orders were made.

The primary legal issues before the court were whether to vary the existing final parenting orders, and if so, on what basis, given the absence of a material change in circumstances. Additionally, the court was required to determine applications for costs made by the Independent Children's Lawyer and the father, and to consider the mother's applications for costs. Procedural applications, including an injunction to restrain further filings by the mother and an order for the destruction of subpoenaed documents, were also before the court.

Austin J determined that, in the absence of a demonstrated change in circumstances, the applications to vary the final parenting orders should be dismissed, with the exception of certain proposed orders that were made by consent. The court found that the mother's husband's income was relevant to the mother's capacity to pay costs, and consequently ordered that the parties bear the Independent Children's Lawyer's costs equally. The father's application for costs was dismissed as it related to self-represented litigant costs, and the mother's application for costs was also dismissed due to a lack of basis. The father's application for an injunction to restrain the mother from filing further applications was dismissed, as her applications were not found to be frivolous or vexatious. However, the mother was ordered to deliver up and destroy all subpoenaed documents.

Orders

Orders of the court

The father shall within 7 days pay the Independent Children’s Lawyer’s costs of and incidental to the proceedings concluded by orders and reasons published on 27 August 2008, fixed in the sum of $3,632.20.

The mother shall within 7 days pay the Independent Children’s Lawyer’s costs of and incidental to the proceedings concluded by orders and reasons published on 27 August 2008, fixed in the sum of $3,632.20.

Order 9 made on 27 August 2008 is amended to include the father’s wife as a person permitted to collect the child from the mother on behalf of the father.

For the purposes of compliance with Order 10 made on 27 August 2008, the father is permitted to excise his employee number and the official transportation numbers from the work roster provided by him to the mother.

The mother shall forthwith deliver up to the Registrar of the Sydney registry of the Family Court of Australia for destruction all documents presently in her possession which are copies of documents produced pursuant to subpoenas issued in proceedings number SYF 3250/2006 prior to 27 August 2008.

The Initiating Application filed by the mother on 17 September 2009 is dismissed.

The Response to an Application in a Case filed by the father on 20 October 2009 is dismissed.

The Reply filed by the mother on 5 May 2011 is dismissed.

The Application in a Case filed by the father on 5 May 2011 is dismissed.

10.

The Response to an Application in a Case filed by the mother on 14 June 2011 is dismissed.

11.

Leave is granted to the father to furnish to the principal of any school attended by the child, O, born on … March 2006:

(a) A sealed copy of the orders made on 27 August 2008; and

(b) A sealed copy of these orders.

12.

Costs of and incidental to the applications determined by these orders are reserved for 28 days.

13.

Any and all outstanding applications are 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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