Trevor and Trevor - [2016] FamCA 756

FAMILY COURT OF AUSTRALIA

TREVOR & TREVOR

[2016] FamCA 756

FAMILY LAW – PRACTICE AND PROCEDURE – Leave to Reopen – Where final judgment as to parenting and property orders reserved – Where mother seeks to reopen her parenting case – Where mother alleges an incident at the father’s place of employment shows the father’s propensity for violence – Where mother alleges the father has left the children unsupervised –Where consideration of applicable principles – Mother’s application for leave to reopen dismissed.

FAMILY LAW – PARENTING – Interim proceedings – Where mother seeking a suspension of the father’s time with the children – Where mother alleges the father has left the children unsupervised – Where final judgment as to parenting and property orders reserved – Where Independent Children’s Lawyer does not support a suspension of the father’s time with the children – Mother’s application dismissed.

Australian Securities and Investments Commission v Rich [2006] NSWSC 826
Mallard & Mallard [2011] FamCA 876
Suell & Suell (Re-Opening) [2009] FamCA 55
Urban Transport Authority of NSW v Nweiser (1982) 28 NSWLR 471

APPLICANT:

Ms Trevor

RESPONDENT:

Mr Trevor

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW Town X Family Law

FILE NUMBER:

DUC

435

2013

DATE DELIVERED:

7 September 2016

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

2 September 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Gillies

SOLICITOR FOR THE APPLICANT:

Kevin Hockey & Associates

COUNSEL FOR THE RESPONDENT:

Mr Reeves

SOLICITOR FOR THE RESPONDENT:

Brendon Dunstan Solicitor

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Mahony

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW Town X Family Law

Orders

That the mother’s application to reopen be dismissed.
That the mother’s application for suspension of the children’s time with the father be dismissed.
That in the event of any application for costs of the present application the father file and serve submissions within 28 days from this date and the mother file and serve any submissions in response within a further 14 days with judgment thereafter be reserved to chambers.

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 Trevor & Trevor 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 PARRAMATTA

FILE NUMBER: DUC 435 of 2013

Ms Trevor

Applicant

And

Mr Trevor

Respondent

REASONS FOR JUDGMENT

The mother, being the respondent in the primary parenting and property proceedings, makes application by way of application in a case filed on 18 July 2016 to reopen the evidence in the trial and for an…

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 Trevor and Trevor

Details

AGLC: Trevor and Trevor [2016] FamCA 756
Case: [2016] FamCA 756
Decision Date: 7 September 2016

CaseChat Overview and Summary

In the matter of *Trevor and Trevor*, Foster J of the Federal Circuit and Family Court of Australia considered applications made by the mother concerning her children and their time with the father. The mother sought to reopen previous orders and suspend the children's time with the father.

The central legal issues before the court were whether the mother had established sufficient grounds to reopen final parenting orders and whether there were compelling reasons to suspend the existing arrangements for the children's time with the father.

Foster J dismissed the mother's applications. The reasoning applied by the court focused on the high threshold required to reopen final parenting orders, which generally necessitates demonstrating a significant change in circumstances or new material that was not previously available. The court found that the mother had not met this threshold. Furthermore, the court determined that the evidence presented did not support a finding that the children's time with the father should be suspended, indicating that the existing orders were considered to be in the children's best interests.

The court ordered that the mother's application to reopen be dismissed and her application for suspension of the children's time with the father be dismissed. Provisions were made for the parties to make submissions regarding costs.

Orders

Orders of the court

That the mother’s application to reopen be dismissed.

That the mother’s application for suspension of the children’s time with the father be dismissed.

That in the event of any application for costs of the present application the father file and serve submissions within 28 days from this date and the mother file and serve any submissions in response within a further 14 days with judgment thereafter be reserved to chambers.

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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