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Starr & Dell

Starr & Dell

Case [2023] FedCFamC2F 1517 29 November 2023

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Starr & Dell [2023] FedCFamC2F 1517

File number(s): CAC 1770 of 2021

Judgment of: JUDGE W J NEVILLE

Date of judgment: 29 November 2023

Catchwords: FAMILY LAW – Parenting – consideration of principle in Rice & Asplund – Father continues to seek to spend time with his now 10 year old daughter who is significantly resistant to spending time with him – Father has significant criminal history – a number of factual contentions to support Application not established by the Father – Father contends that the Mother effectively subverts his attempts to improve the relationship with his daughter – best interest considerations of the child point clearly to recognition time only between Father and daughter.

Legislation: Family Law Act 1975 (Cth)

Cases cited:
Carriel v Lendrum (2015) 53 Fam LR 157

Defrey and Radnor [2021] FamCAFC 67

Mahoney & Dieter [2020] FamCAFC 88

Marsden v Winch (2010) 42 Fam LR 1

Miller v Harrington (2008) 220 FLR 300; (2009) 39 Fam LR 654

O’Brien & O’Brien [2017] FamCAFC 219

Phillips v Hansford (No.2) (2020) 60 Fam LR 160

Poisat & Poisat (2014) FLC 93-597

Rice & Asplund (1978) 6 Fam LR 570; (1979) FLC ¶90-725

Shan & Prasad (2020) 61 Fam LR 440

SPS & PLS (2008) 217 FLR 164; (2008) FLC ¶93–363; (2009) 39 Fam LR 295

Stern v Colli (2022) 65 Fam LR 548

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

Walter & Walter [2016] FamCAFC 56

Division: Division 2 Family Law

Number of paragraphs: 73

Date of hearing: 13 October 2023

Place: Canberra

Counsel for the Applicant Ms Isaacson

Solicitor for the Applicant Ms Foster

Counsel for the Respondent Mr Stagg

Solicitor for the Respondent Mr Lee

Independent Children’s Lawyer Ms Cruise
ORDERS

CAC 1770 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR STARR

Applicant

AND:
MS STARR

Respondent

ORDER MADE BY:

JUDGE W J NEVILLE

DATE OF ORDER:

29 NOVEMBER 2023

ON A FINAL BASIS, THE COURT ORDERS THAT:
1.The Father’s Application filed 12^th August 2021 be dismissed.
2.Final Orders of 6^th December 2019 be discharged.
3.The Mother shall have sole parental responsibility for the child X (born in 2013) (“the child”).
IT IS NOTED that the intention of the Order for sole parental responsibility made at Order 1 above in favour of the Mother is to vest sole parental responsibility for the child in the Mother for all purposes, including the purposes of the Family Law Act 1975 and section 11 of the Australian Passports Act 2005.
4.The child shall live with the Mother.
5.The Mother shall be at liberty to travel with the child within Australia or overseas in the future for holiday or for any future periods that her Husband receives a defence force posting.
6.Pursuant to Order 5 herein, for the purpose of any future posting the Mother shall:
(a)Notify the Father within 14 days of confirmation of such posting; and
(b)Advise…

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: Starr & Dell [2023] FedCFamC2F 1517
Case: [2023] FedCFamC2F 1517
Decision Date: 29 November 2023

CaseChat Overview and Summary

The matter of Starr & Dell involved Mr Starr, the applicant, and Ms Dell, the respondent, who were previously married and parents to a child born in 2013. Mr Starr sought to increase his time with their daughter, who had significant resistance to spending time with him. The case was heard in the Federal Circuit and Family Court of Australia. The court was required to decide whether the father’s application should be granted, considering the child’s significant resistance and the father's criminal history.

The legal issues the court had to address included whether the father's application should be granted based on the child's best interests, given her significant resistance and the father's criminal history. Additionally, the court had to consider whether the mother's actions had effectively subverted the father's attempts to improve the relationship with his daughter. The court was also required to determine if the father had established the factual contentions necessary to support his application.

The court found that the child's significant resistance to spending time with her father and the father's criminal history weighed heavily against the application. The court did not find the factual contentions presented by the father to be adequately established. Furthermore, the court concluded that the mother had not acted in a manner that effectively subverted the father's attempts to improve the relationship with his daughter. Despite this, the court recognised that the best interests of the child pointed clearly towards limited recognition time only between the father and daughter. Therefore, the court dismissed the father's application, discharged the final orders from 6 December 2019, and confirmed that the mother would have sole parental responsibility for the child.

Orders

Orders of the court

CAC 1770 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR STARR

Applicant

AND:

MS STARR

Respondent

ORDER MADE BY:

JUDGE W J NEVILLE

DATE OF ORDER:

29 NOVEMBER 2023

ON A FINAL BASIS, THE COURT ORDERS THAT:

1. The Father’s Application filed 12th August 2021 be dismissed.

2. Final Orders of 6th December 2019 be discharged.

3. The Mother shall have sole parental responsibility for the child X (born in 2013) (“the child”).

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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Citations

Starr & Dell [2023] FedCFamC2F 1517

Cases Citing This Decision

No citing cases yet.

Cases Cited

Cobb & Landry [2023] FedCFamC2F 847
Citation 1 (Para 1)

…tified that the ‘provisionality’ aspect of certain final orders should be taken into account when addressing the Rice v Asplund issue.[2] [1] [2023] FedCFamC2F 847 [2] T 5…
Defrey & Radnor [2021] FamCAFC 67
Citation 2 (Para 6)

…Perhaps most recently, in Stern v Colli , at [35], the Full Court said (emphasis in original):[31] [35] In Defrey & Radnor [2021] FamCAFC 67after considering what was said in SPS and PLS (2008) 39 Fam LR 295 at [81] and [84], Miller & Harrington (2008) 39 Fam LR 295 at [105] and Marsden v Winch at [58] the Full Cour…
Swenson & Brantley (No.2) [2020] FamCAFC 205
Citation 3 (Para 3)

…More recently again, in Swenson & Brantley (No.2) [2020] FamCAFC 205, the Full Court said (Aldridge J; Austin & Ainslie-Wallace JJ agreeing) said, at [19]: I consider any differences between the two phrases as semantic and not substantial. As the authorities make clear, the essential point in the application of the r…
Mahoney & Dieter [2020] FamCAFC 88
Citation 4 (Para 5)

…close to demonstrating a sufficient change. Taking her case at its highest, it had no reasonable likelihood of success. [30] Mahoney & Dieter [2020] FamCAFC 88. Such matters were originally canvassed by Warnick J in SPS & PLS (2008) 217 FLR 164 especially at [48].…
O'Brien & O'Brien [2017] FamCAFC 219
Citation 5

…[2020] FamCAFC 88 Marsden v Winch (2010) 42 Fam LR 1 Miller v Harrington (2008) 220 FLR 300; (2009) 39 Fam LR 654 O’Brien & O’Brien [2017] FamCAFC 219 Phillips v Hansford (No.2) (2020) 60 Fam LR 160 Poisat & Poisat (2014) FLC 93-597 Rice & Asplund (1978) 6 Fam LR 570; (1979) FLC ¶90-725 Shan & Prasad (2020) 61 Fam LR…
Walter & Walter [2016] FamCAFC 56
Citation 6 (Para 20)

…ssful appeal, by reference to most of the cases to which I have already referred in these reasons, I note briefly the following. [28] Walter & Walter [2016] FamCAFC 56.…
CDW v LVE [2015] WASCA 247
Citation 7 (Para 1)

…edictability with respect to parenting arrangements can be assumed to have upon the interests of the child concerned… [29] [29] CDW v LVE [2015] WASCA 247, at [88] per Martin CJ. [86] In my view his Honour made no error as asserted on behalf of the mother.…
Miller v Harrington [2008] FamCAFC 150
Citation 8 (Para 12)

…nt best interests considerations and also because specific requirements, including legislative requirements, apply . [24] Miller v Harrington (2008) 220 FLR 300; (2009) 39 Fam LR 654.…
Sealey & Archer [2008] FamCAFC 142
Citation 9 (Para 11)

…ot and need not set out all of them from this judgment, save for his Honour’s comments at [48] and [81], which are as follows:[23] [22] SPS & PLS (2008) 217 FLR 164; (2008) FLC ¶93–363; (2009) 39 Fam LR 295. Warnick J was sitting as the Full Court. [23] Warnick J’s comments in SPS & PLS were cited with approval by th…
Gronow v Gronow [1979] HCA 63
Citation 10 (Para 6)

…he primary judge’s discretionary decision is one to which the normal principles in House v The King (1936) 55 CLR 499 and Gronow v Gronow (1979) 144 CLR 513 apply. The primary judge’s task was a two-staged process. First, to make findings of fact as to what changes there had been in circumstances since the making of…
Edwards v Noble [1971] HCA 54
Citation 11 (Para 21)

…ary sense. [54] The bar to appellate intervention where the challenge is to a judge’s fact finding is set high. See Edwards v Noble (1971) 125 CLR 296. [55] In order to succeed in challenging his Honour’s finding that there had been no change in circumstances, it is necessary to demonstrate that the finding was not o…
House v R [1936] HCA 40
Citation 12 (Para 6)

…[22] Consequently, the challenge to the primary judge’s discretionary decision is one to which the normal principles in House v The King (1936) 55 CLR 499 and Gronow v Gronow (1979) 144 CLR 513 apply. The primary judge’s task was a two-staged process. First, to make findings of fact as to what changes there had bee…
House v The King 63 WN 176
Citation 13 (Para 6)

…at is considered. [22] Consequently, the challenge to the primary judge’s discretionary decision is one to which the normal principles in House v The King (1936) 55 CLR 499 and Gronow v Gronow (1979) 144 CLR 513 apply. The primary judge’s task was a two-staged process. First, to make findings of fact as to what changes th…
Rice v Asplund 220 FLR 300
Citation 14 (Para 4)

…ng Application on 29 September 2023. 2.In filing the Initiating Application, the Father must have been aware that he would need to address the rule Rice v Asplund (1979) FLC 90-725 at 78,905: “… It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litiga…

Legislation Cited

Australian Passports Act 2005 (Cth)
1 mention (from Para 8)
Family Law Act 1975 (Cth)
1 mention (from Para 8)

File number(s):	CAC 1770 of 2021
Judgment of:	JUDGE W J NEVILLE
Date of judgment:	29 November 2023
Catchwords:	FAMILY LAW – Parenting – consideration of principle in Rice & Asplund – Father continues to seek to spend time with his now 10 year old daughter who is significantly resistant to spending time with him – Father has significant criminal history – a number of factual contentions to support Application not established by the Father – Father contends that the Mother effectively subverts his attempts to improve the relationship with his daughter – best interest considerations of the child point clearly to recognition time only between Father and daughter.
Legislation:	Family Law Act 1975 (Cth)
Cases cited:	Carriel v Lendrum (2015) 53 Fam LR 157 Defrey and Radnor [2021] FamCAFC 67 Mahoney & Dieter [2020] FamCAFC 88 Marsden v Winch (2010) 42 Fam LR 1 Miller v Harrington (2008) 220 FLR 300; (2009) 39 Fam LR 654 O’Brien & O’Brien [2017] FamCAFC 219 Phillips v Hansford (No.2) (2020) 60 Fam LR 160 Poisat & Poisat (2014) FLC 93-597 Rice & Asplund (1978) 6 Fam LR 570; (1979) FLC ¶90-725 Shan & Prasad (2020) 61 Fam LR 440 SPS & PLS (2008) 217 FLR 164; (2008) FLC ¶93–363; (2009) 39 Fam LR 295 Stern v Colli (2022) 65 Fam LR 548 Swenson & Brantley (No.2) [2020] FamCAFC 205 Walter & Walter [2016] FamCAFC 56
Division:	Division 2 Family Law
Number of paragraphs:	73
Date of hearing:	13 October 2023
Place:	Canberra
Counsel for the Applicant	Ms Isaacson
Solicitor for the Applicant	Ms Foster
Counsel for the Respondent	Mr Stagg
Solicitor for the Respondent	Mr Lee
Independent Children’s Lawyer	Ms Cruise

CAC 1770 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR STARR Applicant
AND:	MS STARR Respondent

ORDER MADE BY:	JUDGE W J NEVILLE
DATE OF ORDER:	29 NOVEMBER 2023