Windsor and Kava (No.2) - [2012] FMCAfam 1370

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WINDSOR & KAVA (No.2)

[2012] FMCAfam 1370

FAMILY LAW – Parenting – both parents seeking further and different parenting orders immediately after judgment delivered and parenting orders made after a six day hearing – no new matter raised – Rice & Asplund – summary dismissal.

Windsor & Kava [2012] FMCAfam 1221
Port of Melbourne Authority & Anshun [1981] HCA 45, (1981) 147 CLR 598
Rice & Asplund (1978) 6 Fam LR570, (1979) FLC 90-725

Applicant:

MS WINDSOR

Respondent:

MR KAVA

File Number:

PAC 3320 of 2010

Judgment of:

Halligan FM

Hearing date:

4 December 2012

Date of Last Submission:

4 December 2012

Delivered at:

Parramatta

Delivered on:

4 December 2012

REPRESENTATION

Solicitors for the Applicant:

In Person

Solicitors for the Respondent:

In Person

ORDERS

The mother’s amended initiating application filed on 30 October 2012, the father’s further amended response filed on 30 November 2012 and the father’s application in a case filed on 30 November 2012 are summarily dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Windsor & Kava (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT PARRAMATTA

PAC 3320 of 2010

MS WINDSOR

Applicant

And

MR KAVA

Respondent

REASONS FOR JUDGMENT

Before the court today is an amended initiating application by the mother filed on 30 October this year. She initially filed the original application on 25 October. That was 14 days after I delivered judgment following a six day hearing in relation to parenting matters concerning the parties’ two young sons (see Windsor & Kava [2012] FMCAfam 1221). The hearing dates were the 17 and 18 November 2011 and 2, 3, 10 and 11 October 2012. To say that was a full hearing of the matter would be an understatement.
The only witnesses apart from the authors of the family reports were each of the parents. There was an independent children’s lawyer involved. Each of the parties were represented for part of the time and were unrepresented for part of the time during that hearing. Be that as it may, as I say, after fully hearing this matter, I made parenting orders and I delivered judgment on 11 October and two weeks later the mother filed a fresh parenting application.
As her application was originally framed, she sought an order to restrain the parties from taking the children out of Australia and that the children’s names be placed on the watch list. That is in identical terms to part of the orders that she, for the first time, articulated on

11 October, day six of the previous hearing, at the commencement of final submissions.
I dealt with the matter in the judgment that I delivered on that occasion (at [53] – [55]) and acknowledged that the mother had sought this order in her Exhibit G at the close of the evidence and that this was the first time that the mother had sought such an…

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 Windsor and Kava (No.2)

Details

AGLC: Windsor and Kava (No.2) [2012] FMCAfam 1370
Case: [2012] FMCAfam 1370
Decision Date

CaseChat Overview and Summary

The case of Windsor & Kava (No.2) involved the parents of two young sons who had been the subject of an extensive six-day hearing concerning parenting matters. The mother, Ms Windsor, filed an amended initiating application 14 days after the Federal Magistrate delivered judgment, seeking further and different parenting orders. The father, Mr Kava, responded by filing a further amended response and an application in a case, seeking similar orders. The court was required to decide whether the mother's application, which raised no new matters, and the father's applications, which sought to revisit issues already determined, had any prospects of success.

The court considered the principle of Anshun estoppel, which prevents parties from relitigating issues that were or could have been raised in a previous proceeding. The mother's application sought orders that she had not raised earlier, despite the issues being live throughout the proceedings, and the court found that she had not provided any satisfactory explanation for the delay. The father's applications sought to revisit issues already determined, including the refusal of an equal shared parental responsibility order and changes to the changeover arrangements and contact methods, which had been fully addressed in the previous hearing. The court held that the father's applications were an attempt to serially return to court to argue the same issues and that there was no new matter raised that would justify reopening the matter.

The court summarily dismissed both the mother's amended application and the father's further amended response and application in a case, finding that they lacked any prospects of success. The court emphasized the importance of addressing parenting issues in a single, comprehensive hearing to avoid serial litigation and to ensure the best interests of the children. The court's reasoning was consistent with the principles of Anshun estoppel and the case law of Rice & Asplund, which established that parties cannot serially return to court to argue the same issues.

The final orders of the court were that the mother’s amended initiating application filed on 30 October 2012, the father’s further amended response filed on 30 November 2012 and the father’s application in a case filed on 30 November 2012 are summarily dismissed. The court certified that the preceding thirty-one (31) paragraphs were a true copy of the reasons for judgment of Halligan FM.

Orders