Simco & Cripps - [2021] FedCFamC2F 717

Federal Circuit and Family Court of Australia
(DIVISION 2)
Simco & Cripps [2021] FedCFamC2F 717

File number: SYC 5662 of 2020

Judgment of: JUDGE MORLEY

Date of judgment: 20 October 2021

Catchwords: FAMILY LAW – Rice & Asplund hearing – Mother moved cities with the child pending delivery of final orders after contested hearing – Court finds in favour of reopening proceedings – matter expedited.

Cases cited:
Defrey & Radnor [2021] FamCAFC 67

Nielsen & Springer (No. 2) [2020] FamCA 1079

Rice & Asplund [1978] FamCA 84

SPS & PSL [2008] FamCAFC 16

Swenson & Brantley (No. 2) [2020] FamCAFC 205

Trewitt & Brock [2021] FedCFamC1A 9

Division: Division 2 Family Law

Number of paragraphs: 74

Date of hearing: 12 April 2021

Place: Sydney

Solicitor for the Applicant: Litigant in person

Counsel for the Respondent: Ms Petrie

Solicitor for the Respondent: Capon & Hubert Lawyers
ORDERS

SYC 5662 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS SIMCO

Applicant

AND:
MR CRIPPS

Respondent

order made by:

JUDGE MORLEY

DATE OF ORDER:

20 OCTOBER 2021

THE COURT ORDERS THAT:
1.The Application of the Father, that the Mother’s application to re-open the proceedings pursuant to the principle in Rice & Asplund is dismissed.
2.The application of the Father to transfer the proceedings to the Canberra Registry is dismissed.
3.The Final Hearing of this matter is expedited, so far as is possible.

PENDING FURTHER ORDERS, THE COURT ORDERS:
4.That both the Mother and the Father do all things necessary to ensure that the child X born in 2011 attends such face to face school days as occur at B School, Canberra, for the remainder of the 2021 school year.
5.That until the start of the 2022 school year beginning at the start of Term 1 2022, the parents are to each comply fully with the final parenting orders made on 28 November 2019.
6.That from and including the first day of X’s school attendances for the 2022 school year, orders 4, 5, and 7 of the final orders made on 28 November 2019 are suspended.
7.That the parents shall by no later than 12 November 2021 agree upon a school within reasonable proximity to the Mother’s place of residence in Sydney to be attended by X in the 2022 school year, and in the event no such agreement is reached by the parents by 12 November 2021, then each shall notify the Chambers of Judge Morley by no later than 4:00PM on 15 November 2021 and the proceedings will be relisted thereafter at 9:30AM on 29 November 2021 for determination by the Court of the school to be attended by X for the 2022 school year.
8.THE COURT NOTES THAT the matter has not been listed on 29 November 2021 currently and will only be relisted upon the parties advising Chambers per order 4 herein.
9.That from the commencement of the school year 2022, X shall spend time with his Father as follows:
10.During school term, each alternate…

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 Simco & Cripps

Details

AGLC: Simco & Cripps [2021] FedCFamC2F 717
Case: [2021] FedCFamC2F 717
Decision Date

CaseChat Overview and Summary

This case concerns a parenting matter between Ms Simco, the mother, and Mr Cripps, the father. The court was required to decide whether there were sufficient changed circumstances to justify a reconsideration of the parenting arrangements for their child, X. The mother sought to relocate X from Canberra to Sydney, and the father opposed this move. The court found that there were sufficient changed circumstances to warrant a reconsideration of the parenting arrangements. The court dismissed the father's application to transfer the proceedings to the Canberra Registry and ordered that the matter be expedited. Pending further orders, the court ordered that X attend school in Canberra for the remainder of the 2021 school year and that the parents comply with the final parenting orders made on 28 November 2019. The court also ordered that the parents agree on a school for X to attend in the 2022 school year and that they notify the court if they were unable to reach an agreement. The court noted that the matter had not been listed for relisting on 29 November 2021 and would only be relisted upon the parties advising the court. The court further ordered that from the commencement of the school year 2022, X would spend time with his father on alternate weekends during school term, during whole of the Term 1, 2, and 3 school holidays, during the school holidays at the end of Term 4, and on Father's Day weekend. The court also ordered that X communicate with his parents by telephone or video chat program or application, and that all changeovers at the start and end of X's time with his father occur by the mother delivering X to the father's place of residence at the start of the time and the mother collecting X from the father's place of residence at the end of the time.

Orders