SKINNER & CLUNY - [2018] FamCA 478

FAMILY COURT OF AUSTRALIA

SKINNER & CLUNY

[2018] FamCA 478

FAMILY LAW – CHILDREN – Rise & Asplund issue – Whether there has been sufficient change in circumstances since final parenting orders of 2012 to justify re-litigation – Where father seeks re-litigation of parenting orders – Where mother opposes further litigation - Where child has recently been diagnosed with anxiety – Where child was very young at the time of last orders – Where parties are no longer agreeable to orders made in 2012 – Where parties appear intent on litigating indefinitely – Where considerations are finely balanced in this matter – Where it is in the child’s best interests to re-litigate the appropriate parenting arrangements for the child.

FAMILY LAW – CHILDREN – Application for discharge of Independent Children’s Lawyer – Where the mother asserts that the Independent Children's Lawyer was negligent in not bringing an application in relation to the Rice & Asplund issue prior to trial and for not issuing subpoenae – Where court finds no merit in mother’s arguments – Application dismissed.

Family Law Act 1975 (Cth) ss 68L, 68LA, 69ZQ, 70NBA

Skinner & Cluny (No 2) [2012] FamCA 465
Cluny & Skinner [2018] FamCA 15

Cluny & Skinner [2017] FamCA 255

Cluny & Skinner (No2) [2017] FamCA 547
Dean & Susskind [2012] FamCA 897
Sawyer & Sawyer [2015] FamCA 982
Knibbs & Knibbs [2009] FamCA 840
Paco & Racina [2014] FamCAFC 195
Leroux & Leroux [2015] FamCA 1128
Lloyd & Lloyd & The Child Representative (2000) FLC 93-045
Rice & Asplund (1979) FLC 90-725

APPLICANT:

Mr Skinner

RESPONDENT:

Ms Cluny

INDEPENDENT CHILDREN’S LAWYER:

Ms Miles

FILE NUMBER:

BRC

812

2010

DATE DELIVERED:

26 June 2018

PLACE DELIVERED:

Cairns

PLACE HEARD:

Cairns via video link to Brisbane

JUDGMENT OF:

Tree J

HEARING DATE:

13 March 2018

REPRESENTATION

THE APPLICANT:

In person

THE RESPONDENT:

In person

COUNSEL FOR THE INDEPENDENT

CHILDREN'S LAWYER :

Ms McDiarmid

SOLICITORS FOR THE INDEPENDENT CHILDREN'S LAWYER:

Kelly Lawyers

Orders

The Trial Management Hearing in this matter be resumed at 2:15pm on 1 August 2018 by Global Meet Teleconference (noting the dial in details remain the same as previously advised).

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Skinner & Cluny has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CAIRNS VIA VIDEO LINK TO BRISBANE

FILE NUMBER: BRC812/2010

Mr Skinner

Applicant

And

Ms Cluny

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

On 17 November 2017, I conducted the Trial Management Hearing of these parenting proceedings. On that…

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.

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Details

AGLC: SKINNER & CLUNY [2018] FamCA 478
Case: [2018] FamCA 478
Decision Date: 26 June 2018

CaseChat Overview and Summary

This matter concerned an application by the father to re-litigate parenting orders made in 2012, which the mother opposed. The court was required to determine whether there had been a sufficient change in circumstances since the final parenting orders were made to justify re-litigation, considering the best interests of the child. Additionally, the court addressed an application by the mother for the discharge of the Independent Children's Lawyer, alleging negligence in their conduct.

The primary legal issue was whether the circumstances had changed sufficiently to warrant a review of the existing parenting orders, a question often referred to as the *Rice & Asplund* issue. This involved balancing the finality of court orders against the need to ensure arrangements remain in the child's best interests. The court also had to consider the mother's allegations of negligence against the Independent Children's Lawyer, specifically their failure to initiate proceedings regarding the *Rice & Asplund* issue and to issue subpoenas prior to the trial.

In determining the *Rice & Asplund* issue, the court noted that the child was very young when the 2012 orders were made and had recently been diagnosed with anxiety. Furthermore, the parties were no longer in agreement with the existing orders and appeared intent on ongoing litigation. Weighing these factors, the court found that it was in the child's best interests to re-litigate the appropriate parenting arrangements. The application to discharge the Independent Children's Lawyer was dismissed, as the court found no merit in the mother's arguments regarding alleged negligence.

The court ordered that the Trial Management Hearing in this matter be resumed at 2:15pm on 1 August 2018 by Global Meet Teleconference.

Orders

Orders of the court

The Trial Management Hearing in this matter be resumed at 2:15pm on 1 August 2018 by Global Meet Teleconference (noting the dial in details remain the same as previously advised).

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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