WALLACE & WALLACE - [2019] FamCA 250

FAMILY COURT OF AUSTRALIA

WALLACE & WALLACE

[2019] FamCA 250

FAMILY LAW – CHILDREN – Interim Hearing – Final parenting orders made on 14 March 2018 – Application of the rule in Rice & Asplund – Where the mother asserts insufficient change in circumstances to re-litigate – Where the Independent Children’s Lawyer does not support the position of the mother – Where the father seeks that the children’s parental responsibility and living arrangements be re-litigated – Where the father’s Response to Initiating Application summarily dismissed – Where re-litigation should be restricted to time and communication and whether it should be recommenced between the father and children – Whether it be in accordance with orders made by Berman J on 14 March 2018.

Family Law Act 1975 (Cth) s 69ZQ

Wallace & Wallace [2018] FamCA 151

APPLICANT:

Ms Wallace

RESPONDENT:

Mr Wallace

INDEPENDENT CHILDREN’S LAWYER:

Mr Charman

FILE NUMBER:

ADC

3290

2015

DATE DELIVERED:

18 April 2019

PLACE DELIVERED:

Cairns

PLACE HEARD:

Cairns via video link to Adelaide

JUDGMENT OF:

Tree J

HEARING DATE:

8 March 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr McQuade

SOLICITORS FOR THE APPLICANT:

Pascale Legal Barristers & Solicitors

COUNSEL FOR THE RESPONDENT:

Mr Roberts

SOLICITORS FOR THE RESPONDENT:

Salisbury Lawyers

SOLICITORS FOR THE INDEPENDENT CHILDREN'S LAWYER:

Adelta Legal

Orders

The father’s Response to Initiating Application filed 3 September 2018 is dismissed.
The father has leave to, no later than 2 May 2019 make file and serve an Amended Response to the mother’s Initiating Application restricted to detailing any final orders which he seeks in relation to the children spending time and communicating with him.
The father’s Application in a Case filed 9 November 2018 be listed for mention only at a time and date to be advised to the parties by the Adelaide Registry.

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 Wallace & Wallace 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 CAIRNS

FILE NUMBER: ADC3290/2015

MS WALLACE

Applicant

And

MR WALLACE

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

On 14 March 2018, for reasons published on that day[1] (“the first reasons”), Berman J pronounced final parenting orders concerning the two children the subject of this litigation, being C, born in 2008 and D, born in 2011, (“the children”). In broad terms, those orders provided that the children live with Ms Wallace (“the mother”) and after a moratorium of 28 days, spend alternate weekend time, and half of school holidays (together with some special days) with Mr Wallace (“the…

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 WALLACE & WALLACE

Details

AGLC: WALLACE & WALLACE [2019] FamCA 250
Case: [2019] FamCA 250
Decision Date: 18 April 2019

CaseChat Overview and Summary

In *Wallace & Wallace*, heard by Tree J, the dispute concerned an application by the father to re-litigate parenting orders made on 14 March 2018. The mother contended that there had not been a sufficient change in circumstances to warrant re-litigation, a position not supported by the Independent Children’s Lawyer. The father sought to re-litigate the children's parental responsibility and living arrangements.

The central legal issue before the court was whether the father should be permitted to re-litigate the final parenting orders, and if so, to what extent. This involved considering the application of the rule in *Rice & Asplund*, which generally restricts re-litigation of final parenting orders unless there has been a significant change in circumstances. The court was required to determine if the father's application met the threshold for re-litigation and, if so, the scope of any such re-litigation.

Tree J determined that the father's Response to Initiating Application should be dismissed, thereby restricting the scope of any re-litigation. The court reasoned that re-litigation should be confined to the specific issues of time and communication between the father and the children, and whether such contact should be recommenced in accordance with the existing orders. The father was granted leave to file an amended response limited to detailing any final orders he sought concerning time and communication. The father's separate Application in a Case was ordered to be listed for mention only.

Orders

Orders of the court

The father’s Response to Initiating Application filed 3 September 2018 is dismissed.

The father has leave to, no later than 2 May 2019 make file and serve an Amended Response to the mother’s Initiating Application restricted to detailing any final orders which he seeks in relation to the children spending time and communicating with him.

The father’s Application in a Case filed 9 November 2018 be listed for mention only at a time and date to be advised to the parties by the Adelaide Registry.

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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