Stubbs & Stubbs (No 2) - [2012] FamCA 981

FAMILY COURT OF AUSTRALIA

STUBBS & STUBBS (NO 2)

[2012] FamCA 981

FAMILY LAW – CHILDREN – application by the mother seeking discharge of final parenting orders upon the basis that there has been a change in circumstances – where the father seeks that the mother’s application be dismissed relying upon the rule in Rice and Asplund (1979) FLC 90-725 – where the matter was recently finalised after a lengthy and complex trial – where new issues had arisen however the Court was of the view that they were of the same nature to those which were previously dealt with at trial – where it was in the best interests of the children for litigation to come to an end – application dismissed.

Family Law Act 1975 (Cth) s 60CA

CDJ v VAJ (1998) 197 CLR 172
DL & W [2012] FamCAFC 5
Hayman and Hayman (1976) FLC 90-140
M v M (1988) 166 CLR 69
Marsden v Winch (2009) 42 Fam LR 1
Miller & Harrington (2008) FLC 93-383
R v R (Children’s wishes) (2002) FLC 93-108
Rice and Asplund (1979) FLC 90-725
SPS and PLS (2008) FLC 93-363

APPLICANT:

Ms Stubbs

RESPONDENT:

Mr Stubbs

INDEPENDENT CHILDREN’S LAWYER:

Mr Stephen

FILE NUMBER:

ADC

1974

2009

DATE DELIVERED:

26 November 2012

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Dawe J

HEARING DATE:

21 June 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Cocks

SOLICITOR FOR THE APPLICANT:

Georgina Parker Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Lindsay

SOLICITOR FOR THE RESPONDENT:

Helen McCance

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Stephen

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Services Commission

Orders

The mother’s Initiating Application filed on 15 December 2011 is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Stubbs & Stubbs (No 2) 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 ADELAIDE

FILE NUMBER: ADC 1974 of 2009

Ms Stubbs

Applicant

And

Mr Stubbs

Respondent

REASONS FOR JUDGMENT

Introduction

By the Initiating Application of the mother filed on 15 December 2011 (Doc 227) she seeks that various parenting orders made by Justice O’Reilly on 9 May 2011 be discharged upon the basis that there has been a significant change in circumstances since those orders were made and that the orders no longer reflect the children’s best interests.
The father opposes the mother’s application relying upon the Rice and Asplund rule arguing that there has not been a change in circumstances which justifies the rehearing of the parenting issues. It was his position that although the facts and allegations now raised by the mother were indeed new, they were of the same nature as those already considered by Her Honour at trial. Counsel for the father argued that the various matters raised by the mother have all been longstanding issues for the children.

The Hearing

At the hearing Ms Cocks of counsel appeared for the mother, Ms…

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 Stubbs & Stubbs (No 2)

Details

AGLC: STUBBS & STUBBS (NO 2) [2012] FamCA 981
Case: [2012] FamCA 981
Decision Date: 26 November 2012

CaseChat Overview and Summary

In *Stubbs & Stubbs (No 2)*, Dawe J of the Family Court of Australia considered an application by the mother. The precise nature of the dispute is not detailed, but it concerned matters arising between the parties, presumably in the context of family law proceedings.

The central legal issue before the court was whether the mother's Initiating Application, filed on 15 December 2011, should be upheld. The court was required to determine the merits of this application and whether it ought to be dismissed.

Dawe J dismissed the mother's Initiating Application. No specific reasoning is provided in the excerpt, but the outcome indicates that the court found no grounds to grant the relief sought by the mother in her application.

Orders

Orders of the court

The mother’s Initiating Application filed on 15 December 2011 is 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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