AMUNDSON & BOTSMAN - [2009] FamCA 976

FAMILY COURT OF AUSTRALIA

AMUNDSON & BOTSMAN

[2009] FamCA 976

FAMILY LAW – CHILDREN – application of the rule in Rice and Asplund (1979) FLC 90-725 – where previous parenting orders were made by consent – where further orders were made by a Federal Magistrate with respect to Christmas school holidays and handovers – where the father filed an application seeking dismissal of the previous orders and seeking further parenting orders six months after the consent orders were made – where the mother seeks the summary dismissal of the father’s application – whether there has been a change or new factors have arisen sufficient to warrant further consideration of parenting orders – whether further litigation would be in the best interests of the child – the father’s application for final orders dismissed

Family Law Act 1975 (Cth) ss 60CA, 60CC & 65DAA

Rice & Asplund (1979) FLC 90-725
SPS & PLS (2008) FLC 93-363
Miller & Harrington (2008) FLC 93-383
Marsden & Winch [2009] FamCAFC 152
Cortes & Cabrera [2007] FMCAfam 293
King & Finneran (2001) FLC 93-079

APPLICANT:

Mr Amundson

RESPONDENT:

Ms Botsman

INDEPENDENT CHILDREN’S LAWYER:

J Richard Croft

FILE NUMBER:

ADC

2007

DATE DELIVERED:

16 October 2009

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Dawe J

HEARING DATE:

28 July 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

N/A

SOLICITOR FOR THE APPLICANT:

Self-Represented

COUNSEL FOR THE RESPONDENT:

Ms Tinning

SOLICITOR FOR THE RESPONDENT:

Adey Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Bowler

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

J Richard Croft

Orders

The father’s application for final orders filed on the 23 January 2009 is dismissed.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 75 of 2007

MR AMUNDSON

Applicant

And

MS BOTSMAN

Respondent

REASONS FOR JUDGMENT

Introduction

Proceedings concerning the child X born in December 2001 were first commenced in the Federal Magistrates Court in June 2003. Final orders were made by consent on 5 November 2003.
Subsequently, further proceedings were commenced in the Federal Magistrates Court in January 2007. There was considerable litigation, but again orders were made by consent on 10 July 2008 which provided that the child live with the father on alternate weekends, half of the April, July and September school holidays and otherwise live with the mother.
The order provided for both parties to have equal shared parental responsibility. Ancillary orders provided for the father to spend time with the child on special occasions.
Final orders were made by Federal Magistrate Mead on the 26 August 2008 with respect to Christmas school holidays and handovers. These orders were not made by consent.
The father appealed the orders in relation to Christmas school holidays. Before the appeal from these orders was concluded, the father filed a further Initiating Application seeking final orders on the 23 January 2009.
In his application filed in…

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 AMUNDSON & BOTSMAN

Details

AGLC: AMUNDSON & BOTSMAN [2009] FamCA 976
Case: [2009] FamCA 976
Decision Date: 16 October 2009

CaseChat Overview and Summary

In *Amundson & Botsman*, Dawe J of the Federal Circuit Court of Australia considered an application by the father for final parenting orders. The father sought to vary existing orders concerning the children.

The central legal issue before the court was whether the father had established a sufficient change in circumstances since the making of the previous orders to justify a re-hearing of the parenting arrangements. This involved determining whether any proposed variation would be in the best interests of the children, a paramount consideration under section 60CA of the *Family Law Act 1975* (Cth), and whether the potential detriment to the children from further litigation outweighed any likely benefit from a new hearing.

Dawe J applied principles derived from the Full Court's reasoning in *SPS & PLS*, which affirmed the "rule" in *Rice & Asplund*. This rule dictates that continuous litigation over children is generally not in their best interests, and courts should aim for stability in parenting arrangements. However, the court acknowledged that significant changes can necessitate reconsideration. To determine whether to embark on a new hearing, the court must assess past circumstances, the likelihood of significant order variations, and weigh the potential detriment of litigation against the likely benefits of any changes. The court also noted the importance of procedural fairness and the need for a *prima facie* case of changed circumstances that is sufficient to justify a hearing.

The father's application for final orders was dismissed.

Orders

Orders of the court

The father’s application for final orders filed on the 23 January 2009 is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The Full Court referred to His Honour’s judgment in SPS & PLS (supra) and said at paragraphs 48 to 50 inclusive:“48. In summary, the best interests issue arises because there are so many changes in the lives of families that the changed circumstances that will permissibly allow re-litigation of a decision must be circumscribed, otherwise there would exist in some cases the spectre of endless litigation finalising only when the child attains 18 years of age and the courts no longer have jurisdiction. 49. However, even that simple formulation must be subservient to the nature of the application itself. This is the genesis of the “rule” in Rice & Asplund and as Warnick J says it is founded on the notion that continuous litigation over the child or children is not generally in their interests. It is usually hoped that the determination of a controversy concerning children by a court will result in at least a reasonable period of stability of those arrangements and freedom from the stressful and conflictual effects of litigation on both parents and children. In addition, recent research demonstrates that conflict between parties is itself harmful to children.50. Nevertheless, there are significant changes that occur and which do require a court to reconsider decisions previously made. Whether in a particular case a court should be willing to embark upon another hearing concerning the child and parent, or whether to do so would itself be demonstrably contrary to the best interests of the child, is a decision to be made in each particular case. How is that decision to be made? The court must look at:(1)The past circumstances, including the reasons for the decision and the evidence upon which it was based.(2)Whether there is a likelihood of orders being varied in a significant way, as a result of a new hearing.(3)If there is such a likelihood, the nature of the likely changes must be weighed against the potential detriment to the child or children caused by the litigation itself. Thus, for example, small changes may not have sufficient benefit to compensate for the disruption caused by significant re-litigation.” (Emphasis added, Footnotes omitted) The Full Court then went on to consider Miller & Harrington (supra) and Cortes & Cabrera [2007] FMCAfam 293. In concluding the discussion of the law, the Full Court said at paragraph 56:“56. In our view, depending upon the facts of each case, a broader range of processes should always be considered. This is because the decision is one which must be made in the best interests of the child but may also be because of the need to provide procedural fairness in the manner in which the court determines how the rule will be applied. …” Paragraph 58 is also instructive:“58. That question might be better formulated in another way in the following proposition, namely that there is a requirement:(1)for a prima facie case of changed circumstances to have been established; and(2)for a consideration as to whether that case is a sufficient change of circumstances to justify embarking on a hearing.”

Ratio Decidendi

Legal Principle Established

The additional considerations are set out in section 60CC(3):Additional considerations(3) Additional considerations are:(a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's wishes;(b)the nature of the relationship of the child with:(i)each of the child's parents; and(ii)other persons (including any grandparent or other relative of the child);(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:(i)either of his or her parents; or(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;(f)the capacity of:(i)either of his or her parents; or(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;to provide for the needs of the child, including emotional and intellectual needs;(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;(h)if the child is an Aboriginal child or a Torres Strait Islander child:(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture): and(ii)the likely impact any proposed parenting order under this Part will have on that right;(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;(j)any family violence involving the child or a member of the child's family;(k)any family violence order that applies to the child or a member of the child's family; if:(i)the order is a final order; or(ii)the making of the order was contested by a person;(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;(m)any other fact or circumstance that the court thinks is relevant. Section 65DAA is headed “Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances” That section sets out matters to be considered. Note 1 to subsection (1) reads:“The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend equal time with each of the parents, the court will regard the best interests of the child as the paramount consideration.”