Walter and Walter

[2014] FCCA 2479

FEDERAL CIRCUIT COURT OF AUSTRALIA

WALTER & WALTER [2014] FCCA 2479

Catchwords:
FAMILY LAW – Mother seeking to re-examine parenting orders made following a lengthy trial in 2012 – father opposing – mother contemplating major forensic examination including possible multiple expert reports – whether material change in circumstances – whether childrens’ best interests served by further litigation – consideration of Rice v Asplund – application dismissed.

Legislation:  
Family Law Act 1975, s.70NBA

Rice v Asplund (1979) FLC 90-725
Poisat & Poisat [2014] FamCAFC 128
Harding v Watson [2014] FamCAFC 188
Walter & Walter [2012] FMCAfam 434

Applicant: MS WALTER

Respondent: MR WALTER

File Number: MLC 6449 of 2010

Judgment of: Judge Burchardt

Hearing date: 2 September 2014

Date of Last Submission: 19 September 2014

Delivered at: Melbourne

Delivered on: 24 November 2014

REPRESENTATION

Counsel for the Applicant: Mr Dixon SC

Solicitors for the Applicant: Taussig Cherrie Fildes

Counsel for the Respondent: Ms Snyder

Solicitors for the Respondent: Susan Snydner

ORDERS

1. The application of the mother filed 29 April 2014 be dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT MELBOURNE

MLC 6449 of 2010

MS WALTER

Applicant

And

MR WALTER

Respondent

REASONS FOR JUDGMENT

1. On 29 April 2014, the applicant mother filed an initiating application in the Family Court.  The application sought to discharge extant parenting orders made on 6 June 2012 and 29 May 2013 by Judge Hartnett.  Although the application has been changed to an extent since the inception of the proceeding, the dispute can be identified at the present time as a Rice v Asplund dispute. 

2. The mother seeks that the Court embark upon a wide-ranging re-examination of the parenting arrangements in respect of the three children of the relationship between the parties, namely X, born (omitted) 2000; Y, born (omitted) 2002; and Z, born (omitted) 2004.  The mother says there have been material changes in circumstances sufficient to justify the re-examination of the parenting issues and the father says there have not.  

3. For the reasons that follow, I am going to uphold the father’s Rice v Asplund objection and dismiss the application in its entirety. 

The application and the materials relied upon in support of it

1. This is a box file.  Protracted proceedings between mid-2010 and July 2012 culminated in judgment given by Judge Hartnett on 6 June 2012.  That judgment followed a seven day hearing.  Essentially, contrary to the recommendations of the Independent Children’s Lawyer and the family report writer, Ms D, Judge Hartnett decided that the children should live predominantly with the father and spend five nights per fortnight with the mother. 

2. A further tranche of litigation took place in 2013 about overseas travel. 

3. The application, as I have already indicated, seeks to set aside all parenting orders, including most particularly those made on 6 June 2012 which established the nine/five regime to which I have referred.

4. The…