VENTURA & VENTURA - [2020] FamCA 1127

FAMILY COURT OF AUSTRALIA

VENTURA & VENTURA

[2020] FamCA 1127

FAMILY LAW – PARENTING – non-compliance with final orders – whether the orders ought to be varied – consideration of the rule in Rice & Asplund – allegations of risk – untested expert evidence – costs application – no basis on which to vary orders – allegations of risk unsubstantiated – application dismissed – no orders as to costs.

Family Law Act 1975 (Cth) ss 60B, 60CC, 61DA, 65DAA, 117

Anderson & Anderson [1982] FamCA 36
DS & DS [2003] FMCAfam 365
Goode & Goode [2006] FamCA 1346

Rice & Asplund [1978] FamCA128

APPLICANT:

Ms Ventura

RESPONDENT:

Mr Ventura

FILE NUMBER:

SYC

9191

2020

DATE DELIVERED:

23 December 2020

PLACE DELIVERED:

Sydney via videoconference

PLACE HEARD:

Sydney via videoconference

JUDGMENT OF:

Altobelli J

HEARING DATE:

22 December 2020

REPRESENTATION

ADVOCATE FOR THE APPLICANT:

Mr Boyce

SOLICITOR FOR THE APPLICANT:

Boyce Family Law & Mediation

COUNSEL FOR THE RESPONDENT:

Ms Tabbernor

SOLICITOR FOR THE RESPONDENT:

Freedman & Gopalan Solicitors

Orders

The Application for interim orders contained in the Application filed by the Applicant on 18 December 2020 be dismissed.
Within 6 weeks of the date of this order, both parents are to enrol in the ‘Keeping Kids in Mind’ or equivalent program, and are to each provide evidence of same to the other’s legal representative upon enrolment.
The matter be referred to the Docket Registrar for further case management of the final orders sought in the Application filed 18 December 2020.
Each party pay their own costs.
The parties have leave to relist the matter before Justice Altobelli on 7 days’ notice within 90 days of today’s date should there be any further difficulty with the implementation of the final parenting orders made by this Court on 19 November 2019.

NOTATION

The Respondent father may be filing a Contravention Application.

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 Ventura & Ventura 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 SYDNEY

FILE NUMBER: SYC 9191 of 2020

MS VENTURA

Applicant

And

MR VENTURA

Respondent

EX TEMPORE REASONS FOR JUDGMENT

This matter came before me yesterday in my capacity as duty judge in the Sydney Family Court in the week before Christmas. The following short form reasons for judgment explain why the Court has made the orders it has made.
In circumstances where the father was not spending time with the children contrary to a very recent order of the Court, the matter was listed…

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 VENTURA & VENTURA

Details

AGLC: VENTURA & VENTURA [2020] FamCA 1127
Case: [2020] FamCA 1127
Decision Date: 23 December 2020

CaseChat Overview and Summary

In the matter of *Ventura & Ventura*, Justice Altobelli of the Federal Circuit and Family Court of Australia considered an application by the Applicant mother seeking to vary final parenting orders made on 19 November 2019. The Applicant alleged non-compliance with these orders and raised concerns about risk, presenting untested expert evidence. The Respondent father sought dismissal of the application.

The primary legal issues before the Court were whether the existing final parenting orders ought to be varied based on the Applicant's allegations of risk and non-compliance, and whether the rule in *Rice & Asplund* applied to the circumstances. The Court also considered a costs application.

Justice Altobelli found no basis upon which to vary the final orders, concluding that the allegations of risk raised by the Applicant were unsubstantiated and the expert evidence was untested. Consequently, the Applicant's application for interim orders was dismissed. The Court also ordered both parents to enrol in a parenting program within six weeks and referred the matter for further case management regarding the final orders sought. Each party was ordered to pay their own costs. The parties were granted leave to relist the matter within 90 days should further difficulties arise in implementing the final parenting orders.

Orders

Orders of the court

The Application for interim orders contained in the Application filed by the Applicant on 18 December 2020 be dismissed.

Within 6 weeks of the date of this order, both parents are to enrol in the ‘Keeping Kids in Mind’ or equivalent program, and are to each provide evidence of same to the other’s legal representative upon enrolment.

The matter be referred to the Docket Registrar for further case management of the final orders sought in the Application filed 18 December 2020.

Each party pay their own costs.

The parties have leave to relist the matter before Justice Altobelli on 7 days’ notice within 90 days of today’s date should there be any further difficulty with the implementation of the final parenting orders made by this Court on 19 November 2019.

NOTATION

The Respondent father may be filing a Contravention Application.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.