YAPP & WYNDHAM - [2020] FCCA 2122

FEDERAL CIRCUIT COURT OF AUSTRALIA

YAPP & WYNDHAM

[2020] FCCA 2122

Catchwords:
FAMILY LAW – Application for parenting orders – interim hearing – Rice & Asplund – application dismissed.

Legislation:

Family Law Act 1975 (Cth), s.117

Federal Circuit Court Rules 2001 (Cth), Sch 1

Cases cited:

Marsden & Winch [2009] FamCAFC 152

Rice & Asplund (1979) FLC 90-725

SPS & PLS [2008] FamCAFC 16

Applicant:

MR YAPP

Respondent:

MS WYNDHAM

File Number:

MLC 8709 of 2013

Judgment of:

Judge McNab

Hearing date:

9 July 2020

Date of Last Submission:

9 July 2020

Delivered at:

Melbourne

Delivered on:

13 July 2020

REPRESENTATION

Counsel for the Applicant:

Ms B D'Angelo

Solicitors for the Applicant:

Hartleys Lawyers

Counsel for the Respondent:

Ms E Heggie

Solicitors for the Respondent:

Victoria Legal Aid, Morwell

ORDERS

The father pay the mother’s costs of the Application in a Case filed

28 April 2020 and dismissed on 12 May 2020 fixed in the sum of $3,921.00.
The amended application filed 25 June 2020 be dismissed.

AND THE COURT NOTES THAT:

(A)The father will spend time with the child, X born in 2012 on Tuesday evenings for dinner with such time to increase to overnight visits if the time goes well.
(B)Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 8709 of 2013

MR YAPP

Applicant

And

MS WYNDHAM

Respondent

REASONS FOR JUDGMENT

(Delivered ex-tempore and revised from transcript)

Application

On an application filed on 17 December 2019 and amended on 25 June 2020, the applicant father sought orders on an interim basis that:
a)the previous final orders made on 19 September 2016 be discharged,
b)that there be equal shared parental responsibility for the child X (“the child”), and
c)that the child, for a period of six weeks, live with the father:
i)from the end of school on Friday until the commencement of school on Monday; and
ii)from the end of school on Wednesday until 8 pm and that thereafter on a week-about basis with the changeover to occur on Friday at the end of school or 4 pm if on a non-school day.

Material relied upon

The father relied upon affidavits sworn on 17 December 2019 and

25 June 2020. There was also an affidavit filed by the father sworn on 28 April 2020 which was made in support of an application in a case filed by him on the same day. That application sought orders that the child live with the father and spend each alternative weekend with the mother. He also sought orders that an s.11F conference be organised to ascertain the views…

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 YAPP & WYNDHAM

Details

AGLC: Yapp and Wyndham [2020] FCCA 2122
Case: [2020] FCCA 2122
Decision Date: 13 July 2020

CaseChat Overview and Summary

In the matter of YAPP & WYNDHAM, heard by Judge McNab, the dispute concerned an application for parenting orders. The application, initially filed on 28 April 2020 and subsequently dismissed on 12 May 2020, was brought before the court for an interim hearing.

The primary legal issue before the court was whether to grant the parenting orders sought by the applicant. This involved considering the principles established in *Rice & Asplund* regarding interim parenting orders, which require a high degree of certainty before making orders that significantly alter the status quo.

Judge McNab dismissed the amended application filed on 25 June 2020. The court's reasoning, while not detailed in the provided text, indicates that the threshold for making interim orders under *Rice & Asplund* was not met. The court did, however, make specific notes regarding the father's future time with the child, X, commencing with Tuesday evening dinner visits, with a possibility of increasing to overnight stays if these initial arrangements proved successful.

The court ordered that the father pay the mother's costs of the initial application in a Case, fixed at $3,921.00. The amended application filed on 25 June 2020 was dismissed. The court also noted that particulars of the obligations and potential consequences of contravention of the interim arrangements were set out in Annexure A, pursuant to sections 65DA(2) and 62B of the *Family Law Act 1975*.

Orders

Orders of the court

The father pay the mother’s costs of the Application in a Case filed

28 April 2020 and dismissed on 12 May 2020 fixed in the sum of $3,921.00.

The amended application filed 25 June 2020 be dismissed.

AND THE COURT NOTES THAT:

(A) The father will spend time with the child, X born in 2012 on Tuesday evenings for dinner with such time to increase to overnight visits if the time goes well.

(B) Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

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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