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Telford & Telford

Telford & Telford

Case [2022] FedCFamC2F 876 6 July 2022

Jurisdiction

Rule in Rice v Asplund

Best Interests of the Child

Change of Circumstances

Summary Dismissal

Costs

Family Law

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Telford & Telford [2022] FedCFamC2F 876

File number(s): SYC 1050 of 2016

Judgment of: JUDGE DICKSON

Date of judgment: 6 July 2022

Catchwords:
FAMILY LAW – Parenting - Rice v Asplund application – where final orders were made in September 2020 following a six day Trial – where father was unhappy with final orders but did not file an Appeal - father now seeks to reopen litigation on account of an alleged change of circumstances – mother seeks that the father’s application be summarily dismissed or dismissed on the grounds of no change of circumstances – father’s application filed a short period after final orders – where no significant change of circumstances - where it is not in the children’s best interests to re-open the litigation – applications dismissed

COSTS – mother seeks a cost order against the father – where father submits he has a modest income – impecuniosity is not a bar to a cost order being made -where father has been wholly unsuccessful in his application – order for father to pay mother’s costs of and incidental to the application

Legislation:
Family Law Act 1975 (Cth) ss 45A, 117

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 10.09

Cases cited:
Aldred & Aldred; Westpac Banking Corporation [1986] 10 FamLR 1083

Arthurman & Arthurman [2019] FamCAFC 214

Bigg & Suzi [1998] FamCA 14, (1998) FLC 92-799

Carriel & Lendrum (2015) FLC 93-640

D & D (Costs)(No 2) (2010) FLC 93-435

Ferreday & Layh [2021] FamCA 648

Freeman & Freeman (1987) FLC 91-857

Hunter & Hunter [2014] FamCA 199

I & I (No.2) [1995] FamCA 80, (1995) FLC 92-625, 22 Fam LR 557

Jenkins and Anor & Jenkins and Anor [2011] FamCAFC 69

Josephs & Lorenzo [2022] FedCFamC2F 506

Karlsson & Karlsson [2020] FamCAFC 207

Lysaght Building Solutions Proprietary Limited (t/as Highline Commercial Construction) v Blanalko Pty Ltd (2013) 42 VR 27

McEnearney & McEnearney (1980) FLC 90-866

Medlon & Medlon (No 6) (Indemnity Costs) [2015] FamCAFC 157

PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL [2005] FamCA 158; (2005) 33 Fam LR 123

Pelerman& Pelerman [2000] FamCA 881

Rice v Asplund (1979) FLC 90-725

SPS & PLS (2008) FLC 93-363

Taylor v Taylor (1979) 25 ALR 418

Division: Division 2 Family Law

Number of paragraphs: 85

Date of hearing: 10 June 2022

Place: Adelaide

The Applicant: Appeared in person by Microsoft Teams

Counsel for the Respondent: Ms Tabbernor by Microsoft Teams

Solicitor for the Respondent: L & M Law
ORDERS

SYC 1050 of 2016

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR TELFORD

Applicant

AND:
MS TELFORD

Respondent

ORDER MADE BY:

JUDGE DICKSON

DATE OF ORDER:

6 JULY 2022

THE COURT ORDERS THAT:
1.The father’s Initiating Application filed 26 August 2021 and Amended Initiating Application for Final Orders filed 29 November 2021 be dismissed.
2.The mother’s Response to Initiating…

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: Telford & Telford [2022] FedCFamC2F 876
Case: [2022] FedCFamC2F 876
Decision Date

CaseChat Overview and Summary

The matter before the Court is an application by the father, Mr Telford, to vary final parenting orders made by the Court on 18 September 2020. The mother, Ms Telford, opposes the father's application and seeks a dismissal of the application and an order for costs against the father. The Court heard argument between the parties on 10 June 2022. The father filed his Initiating Application on 26 August 2021 seeking variations to the final parenting orders made by the Court on 18 September 2020. The mother opposes the father's application and seeks that it be dismissed on the grounds of no change of circumstances. The mother seeks an order that the father's application be summarily dismissed pursuant to rule 10.09 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) and/or that the father's application be dismissed on the basis of the rule in Rice v Asplund. The mother also seeks an order for costs against the father. In deciding whether to grant the father's application to vary the final parenting orders, the Court considered whether the father had demonstrated a sufficient change of circumstance to justify further litigation. The Court also considered whether there was a real likelihood of orders being varied in a significant way, as a result of a new hearing, and weighed the potential detriment to the children caused by the litigation itself. The Court found that there was no substantial change of circumstance that would warrant the re-opening of the litigation. The father's application is dismissed. The mother's application for costs against the father is successful. The father is ordered to pay the mother's costs of and incidental to the application fixed in the sum of $12,000.00 plus GST. The mother's costs are to be paid by the father within 90 days of the date of the Court's orders.

Orders