FEDERAL CIRCUIT COURT OF AUSTRALIA
| BANHAM & BANHAM (No.2) | [2020] FCCA 2450 |
| Catchwords: FAMILY LAW – Parenting – application to vary a final parenting order – whether there is a sufficient change in circumstances – Rice & Asplund – whether a family report is needed to determine the issue. |
| Legislation: Family Law Act 1975 (Cth), ss.60CC(3), 69ZW. |
| Cases cited: Granville & Blakeslee [2017] FamCAFC 162 Marsden & Winch [2009] FamCAFC 152 Morgan & Miles [2007] FamCA 1230 SPS & PLS [2008] FamCAFC 16 Ralton & Ralton [2017] FamCAFC 182 Reid & Lynch [2010] FamCAFC 184 Rice & Asplund (1979) FLC 90-725 Watson & Watson [2018] FCCA 1791 |
| Applicant: | MS BANHAM |
| Respondent: | MR BANHAM |
| File Number: | MLC 881 of 2015 |
| Judgment of: | Judge McNab |
| Hearing date: | 9 July 2020 |
| Date of Last Submission: | 9 July 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 3 September 2020 |
REPRESENTATION
| Counsel for the Applicant: | Ms A Parker |
| Solicitors for the Applicant: | Kennedy Partners |
| Counsel for the Respondent: | Mr G Thompson |
| Solicitors for the Respondent: | Nicholas James Lawyers |
ORDERS
The Mother’s Amended Application filed on 5 June 2020 be dismissed.
All other extant applications be dismissed.
There be no orders as to costs.
IT IS NOTED that publication of this judgment under the pseudonym Banham & Banham (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 881 of 2015
| MS BANHAM |
Applicant
And
| MR BANHAM |
Respondent
REASONS FOR JUDGMENT
Introduction
By initiating application filed 6 April 2020, the applicant mother seeks a change of parenting arrangements for the twin children X and Y both born in 2007.
Final parenting orders were made by consent on 28 April 2015 (“the Final Orders”) that provide for the children to live with the respondent father in Melbourne and spend time with the mother for one half of school holidays in Brisbane and on one weekend each month in Melbourne.
The mother seeks a change of parenting arrangements that ultimately reverse the current arrangements. The mother seeks for the children to live with her in Brisbane and spend time with the father for half of the school holidays and on arranged weekends in Brisbane. The father opposes this and seeks for the current arrangements to remain.
On 9 June 2020 the father filed an application seeking orders that the mother’s application be dismissed.
The issue for determination in this matter before the Court is whether there has been a significant change in circumstances as that expression is used in Rice & Asplund (1979) FLC 90-725 (“Rice & Asplund”) so as to enable the parties to re-open the matter. A further issue before the Court is whether a family report is required to assist in determining the Rice & Asplund issue.
The mother relied on her affidavits sworn 6 April 2020, 5 June 2020, 30 June 2020 and the affidavit of Ms C sworn 3 July 2020. The father relied on his affidavits sworn 2 June 2020 and…
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- AGLC
- Banham and Banham (No.2) [2020] FCCA 2450
- Case
- [2020] FCCA 2450
- Decision Date
CaseChat Overview and Summary
The primary legal issue before Judge McNab was whether the threshold for varying a final parenting order, as established in cases such as *Rice v Asplund*, had been met. A secondary issue was whether a family report was necessary to determine this question.
Judge McNab reasoned that the mother had failed to demonstrate a significant new circumstance that had arisen since the making of the final order, which would justify a review. The court applied the principles from *Rice v Asplund*, which require a substantial change in circumstances to justify varying a final order, and found that the evidence presented did not meet this stringent test. Consequently, the court determined that a family report was not required as the application lacked the necessary foundation for variation.
The mother’s amended application to vary the final parenting order was dismissed, as were all other extant applications. The court made no orders as to costs.
Orders
Orders of the court
1.
The Mother’s Amended Application filed on 5 June 2020 be dismissed.
2.
All other extant applications be dismissed.
3.
There be no orders as to costs.
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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