Wickham and Jones - [2010] FamCA 837

FAMILY COURT OF AUSTRALIA

WICKHAM & JONES

[2010] FamCA 837

FAMILY LAW – CHILDREN – lengthy hearing 2006 – application for dismissal – relying upon principals set out in Rice v-Asplund – proceedings summarily dismissed

Rice v Asplund (1979) FLC 90-725
Cook & Tracey [2008] FamCA 74
F & C [2004] FamCA 56
D & Y (1995) FLC 92-581
King v Finneran (2001) FLC 93-079
CDJ & VAJ (1998) 197 CLR 172; FLC 92-828
Bolitho & Cohen (2005) FLC 93-224

P & S [2007] FMCfam 1039
Marsden v Winch [2009] FamCAFC 152

Cortes & Cabrera [2007] FMCAfam 293
R & BH [2006] FamCA 919

McIntosh J, Smyth B, Kelaher M, Wells Y and Long C – “Post Separation Parenting Arrangements and Developmental Outcomes for Infants and Children” – May 2010

APPLICANT:

Ms Wickham

RESPONDENT:

Mr Jones

FILE NUMBER:

LNC

2008

DATE DELIVERED:

10 September 2010

PLACE DELIVERED:

Hobart

PLACE HEARD:

Launceston

JUDGMENT OF:

Benjamin J

HEARING DATE:

4 August 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Trezise

SOLICITOR FOR THE APPLICANT:

Andrea Trezise

COUNSEL FOR THE RESPONDENT:

Mr McVeity

SOLICITOR FOR THE RESPONDENT:

McVeity & Associates

Orders

All pending applications between the parties are dismissed save and except the respective parties’ costs application.
The parties’ costs applications are stood over for hearing at 10.00am on
22 November 2010.
This matter be removed from the list of cases requiring determination.

IT IS NOTED

In the event that the parties do not appear on 22 November 2010 (either in person or represented) their respective costs applications will be dismissed.

IT IS DIRECTED

Exhibits 1 and 2 be attached to the reasons for decision dated the 17 November 2006.

IT IS CERTIFIED

Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend

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

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: LNC 72 of 2008

MS WICKHAM

Applicant

And

MR JONES

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

Mr Jones and Ms Wickham are the parents of two children, L aged 14 almost 15 and E aged 11.
Orders were made by me in November 2006 that the parents have equal shared parental responsibility and that during school term the children live with the father on alternate weekends and that in respect of the second and fourth such alternate weekends, the children will live with the father for the whole of the following week.
The father now seeks that those orders be varied to provide that the children spend equal time with each parent, on a week about basis, during school term. That application is opposed.
The mother seeks orders for the dismissal of the proceedings based upon the principals set out in Rice v Asplund (1979) FLC 90-725.
The issue is whether “there is some changed circumstances which will justify such a serious step, some new…

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 Wickham and Jones

Details

AGLC: Wickham and Jones [2010] FamCA 837
Case: [2010] FamCA 837
Decision Date: 10 September 2010

CaseChat Overview and Summary

In *Wickham and Jones*, Benjamin J considered a dispute between the parties concerning applications before the court. The precise nature of the underlying dispute is not detailed, but the judgment addresses the resolution of pending applications and associated costs.

The primary legal issue before the court was how to dispose of the various applications that had been filed by the parties. The court was required to determine whether these applications should proceed to a full hearing or be dismissed, and to make consequential orders regarding the costs incurred by each party in relation to those applications.

Benjamin J ordered that all pending applications between the parties be dismissed, with the exception of their respective applications for costs. These costs applications were then adjourned to be heard on a later date. The matter was subsequently removed from the court's list of cases awaiting determination, signifying a conclusion to the proceedings before this judge.

Orders

Orders of the court

All pending applications between the parties are dismissed save and except the respective parties’ costs application.

The parties’ costs applications are stood over for hearing at 10.00am on

22 November 2010.

This matter be removed from the list of cases requiring determination.

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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