VALLANS & VALLANS - [2021] FCCA 1001

FEDERAL CIRCUIT COURT OF AUSTRALIA

VALLANS & VALLANS

[2021] FCCA 1001

Catchwords:
FAMILY LAW – Parenting – consideration of the Rule in Rice & Asplund - consideration of whether presumption of equal shared parental responsibility has been rebutted – consideration of whether equal shared parental responsibility or sole parental responsibility in best interests of children

Legislation:

Family Law Act 1975 (Cth), ss.4, 60B, 60CA, 61B, 61C, 61DA, 65DAC

Cases cited:

Bennett& Bennett (1991) FLC 92-191
D & Y (1995) FLC 92-581
Goode v Goode (2007) 36 Fam LR 422, (2006) FLC 93-286
Marsden & Winch [2009] FamCAFC 152
Rice v Asplund (1979) FLC 90-725, [1978] FamCA 84
Searson & Searson [2017] FamCAFC 119
SPS & PLS [2008] FamCAFC 16
Vallans & Vallans [2019] FamCAFC 260, (2019) 60 Fam LR 193

Applicant:

MR VALLANS

Respondent:

MS VALLANS

File Number:

BRC 7407 of 2013

Judgment of:

Judge Lapthorn

Hearing date:

On the papers

Date of Last Submission:

5 November 2020

Delivered at:

Brisbane

Delivered on:

13 May 2021

REPRESENTATION

Counsel for the Applicant:

Mr Ehlers

Solicitors for the Applicant:

Steindl Bradley & Associates

Counsel for the Respondent:

Ms Cullen

Solicitors for the Respondent:

Callaghan Legal

ORDERS

The Application in a Case filed 28 April 2020 be dismissed.
The Respondent file and serve written submissions in relation to costs by no later than 4.00pm on 4 June 2021.
The Applicant file and serve written submissions in relation to costs by no later than 4.00pm on 18 June 2021.
The Respondent file and serve written submissions in reply in relation to costs by no later than 4.00pm on 25 June 2021.

IT IS NOTED that publication of this judgment under the pseudonym Vallans & Vallans is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 7407 of 2013

MR VALLANS

Applicant

And

MS VALLANS

Respondent

REASONS FOR JUDGMENT

Introduction

I am asked to make a determination as to whether it is in the best interests of two children, 10 year old B and 8 year old C, for their parents to have equal shared parental responsibility for them or whether their mother should have sole parental responsibility. In doing so the father submitted that the court should dismiss the mother’s application for sole parental responsibility on the basis that she has not established that a significant change of circumstances has arisen since the making of consent orders in 2015 for the parties to have equal shared parental responsibility. These issues are to be determined without the benefit of observing the parties give their evidence in court as the parties agreed that it could be decided “on the papers”. Having read the evidence filed by the parties, the family report and the written submissions I am satisfied that it is appropriate to proceed in the manner requested.

Background

The father, Mr Vallans is 38 years of age and the mother is 35. They commenced living together in 2008, were married in 2010 and…

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 VALLANS & VALLANS

Details

AGLC: VALLANS & VALLANS [2021] FCCA 1001
Case: [2021] FCCA 1001
Decision Date: 13 May 2021

CaseChat Overview and Summary

In the matter of *Vallans & Vallans*, heard by Judge Lapthorn, the dispute concerned parenting arrangements for the children. The applicant sought orders for sole parental responsibility, while the respondent contended for equal shared parental responsibility.

The court was required to determine whether the presumption of equal shared parental responsibility, as established by the *Family Law Act 1975* (Cth), had been rebutted. Further, the court had to consider whether, in light of all the circumstances, orders for equal shared parental responsibility or sole parental responsibility would be in the best interests of the children. The court also considered the application of the principles established in *Rice & Asplund*.

Judge Lapthorn dismissed the application. The reasons for this decision, including the specific application of the *Rice & Asplund* principles and the assessment of the children's best interests, are detailed in the judgment. The court then made orders regarding the filing and service of written submissions in relation to costs by both the applicant and the respondent.

Orders

Orders of the court

The Application in a Case filed 28 April 2020 be dismissed.

The Respondent file and serve written submissions in relation to costs by no later than 4.00pm on 4 June 2021.

The Applicant file and serve written submissions in relation to costs by no later than 4.00pm on 18 June 2021.

The Respondent file and serve written submissions in reply in relation to costs by no later than 4.00pm on 25 June 2021.

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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