BANHAM & BANHAM (No.2) - [2020] FCCA 2450

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…

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 BANHAM & BANHAM (No.2)

Details

AGLC: Banham and Banham (No.2) [2020] FCCA 2450
Case: [2020] FCCA 2450
Decision Date: 3 September 2020

CaseChat Overview and Summary

In *Banham & Banham (No.2)*, the Family Court of Australia considered an application by the mother to vary a final parenting order. The dispute centred on whether there had been a sufficient change in circumstances since the making of the final order to warrant its alteration.

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

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.

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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