SMITH & HOLT

[2015] FamCA 64

FAMILY COURT OF AUSTRALIA

SMITH & HOLT [2015] FamCA 64

FAMILY LAW – PARENTING – THRESHOLD ISSUE – RICE & ASPLUND – Further application by mother following protracted history of litigation and final orders in 2009 – Consideration of the “rule” in Rice and Asplund – Consideration as to the best interests of the children – No significant change in circumstances to warrant re-litigation of substantial parenting issues – No reasonable prospect of any change to current parenting orders – Prospect of children becoming again enmeshed in litigation – Consideration as to prospective detrimental effect on the children – Mother’s application dismissed.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA

Goode & Goode (2006) FLC 93-286
Hartnett & Sampson (No. 2) [2009] FamCA 769
Hartnett & Sampson (No. 2) [2011] FamCAFC 221
Marsden v Winch (2009) 42 Fam LR 1
Mazorski & Albright [2007] FamCA 520
McCall & Clark (2009) FLC 93-405
Morton and Berry [2014] FamCAFC 208
MRR v GRR (2010) 240 CLR 461
Poisat [2014] FamCAFC 128
Rice & Asplund [1978] FamCA; [1979] FLC 90-725

APPLICANT: Ms Smith

RESPONDENT: Mr Holt

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Sydney Central

FILE NUMBER: SYC 526 of 2013

DATE DELIVERED: 12 February 2015

PLACE DELIVERED: Parramatta

PLACE HEARD: Sydney

JUDGMENT OF: Foster J

HEARING DATE: 4 February 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr De Robilliard

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Karagiannis

Orders

1. That the mothers Application Initiating Proceedings filed on the 5 February 2013 be dismissed.

2. That the proceedings be removed from the pending cases list.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: SYC 526  of 2013

Ms Smith

Applicant

And

Mr Holt

Respondent

REASONS FOR JUDGMENT

1. The present application before the Court is yet another parenting application arising out of the relationship of these parties.

2. The mother in her initiating application filed on 5 February 2013 in the Federal Circuit Court of Australia seeks parenting orders in relation to the children of the parties’ relationship, B born in 2003 and C born in 2004.

3. In summary the mother seeks final orders that provide:

   a)That the mother have sole parental responsibility for the children;

   b)That the children lived with the mother;

   c)That the children spend time with the father during school term on alternate weekends from Friday after school to Monday before school and each alternate Wednesday from after school to the commencement of school Thursday together with half school holidays and other special days;

   d)That where changeovers are not at school they be outside the D Church, Suburb E;

   e)That the children have telephone contact with the father each Tuesday Thursday and Saturday between 5:00pm and 6:00pm when they are in the mother’s care and telephone contact with the mother on Saturdays between 5:00pm and 6:00pm when…