Beach & Watson

Case [2021] FedCFamC1F 64

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)

Beach & Watson [2021] FedCFamC1F 64

File number(s): PAC 6212 of 2020
Judgment of: HARPER J
Date of judgment: 20 September 2021
Catchwords: FAMILY LAW - CHILDREN - Rice & Asplund preliminary issue determination – Where previous judgment given by the Court in 2017 – Where the mother has sole parental responsibility for the child, and the child lives with the mother – Where existing orders provided for father to spend time with the child as agreed with the mother or as ordered by the Court – Where the parties have attended family dispute resolution and have failed to agree on overnight time – Where the Father seeks equal shared parental responsibility and overnight time with the child – Where sufficient change of circumstances has been established to provoke a new enquiry.
Legislation: Family Law Act 1975 (Cth) ss 60I, 68L, 69ZQ
Cases cited:

Defrey & Radnor [2021] FamCAFC 67

Edwards & Edwards (2006) FLC 93-306; [2006] FamCA 1230

Galloway & Steele [2021] FamCA 508

Gotch & Gotch [2009] FamCAFC 3

Jaynes & Rundle [2020] FamCAFC 292

Judd & Pryor (No. 2) [2020] FamCA 934

King v Finneran (2001) FLC 93-079; [2001] FamCA 344

Marsden & Winch (2009) 42 Fam LR 1; [2009] FamCAFC 152

Miller & Harrington (2008) FLC 93-383; (2008) Fam LR 654; [2008] FamCAFC 150

Poisat & Poisat (2014) FLC 93-597; [2014] FamCAFC 128

Reid & Lynch (2010) FLC 93-448; (2010) 44 Fam LR 141; [2010] FamCAFC 184

Rice & Asplund (1979) FLC 90-725; (1979) 6 Fam LR 570; [1978] FamCA 84

Sandler & Kerrington (2007) FLC 93-323; [2007] FamCA 479

SPS & PLS (2008) FLC 93-363; (2008) 39 Fam LR 295; [2008] FamCAFC 16
Division: Division 1 First Instance
Number of paragraphs: 33
Date of hearing: 8 September 2021
Place: Sydney
Counsel for the Applicant: Ms Haughton
Solicitor for the Applicant: Soden Legal
Counsel for the Respondent: Mr Schonell
Solicitor for the Respondent: Frank Law

ORDERS

PAC 6212 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR BEACH

Applicant
AND:

MS WATSON

Respondent

ORDER MADE BY:

HARPER J

DATE OF ORDER:

20 SEPTEMBER 2021

THE COURT NOTES THAT:

A.The Court is satisfied that the Applicant Father (“the father”) has established a sufficient change of circumstances to justify permitting his Initiating Application filed 12 November 2020, seeking variation of final parenting orders made on 15 March 2017, to progress.

B.The Court declines to make any order dismissing the father’s Initiating Application filed 12 November 2020 as a preliminary determination.

THE COURT ORDERS THAT:

1.The interim relief sought by the Respondent Mother (“the mother”) in her Response filed 16 February 2021 be dismissed.

Independent Children’s Lawyer

2.Pursuant to s 68L of the Family Law Act 1975 (Cth) (“the Act”) an Independent Children’s Lawyer is appointed for:

(a)B, born … 2013 (“the child”).

3.Legal Aid NSW is requested to make arrangements as soon as possible for appropriate representation…

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AGLC
Beach & Watson [2021] FedCFamC1F 64
Case
[2021] FedCFamC1F 64
Decision Date

CaseChat Overview and Summary

In the case of Beach & Watson, the father sought to vary the 2017 parenting orders made by the Family Court of Australia. The primary dispute was whether the existing arrangements for the child's care and contact with the father should be altered, with the father seeking more substantial time with the child, including overnight stays. The mother opposed these changes, maintaining that the current arrangements were in the best interest of the child. The legal issues before the court involved interpreting the principles set out in Rice & Asplund and determining whether the father's application met the threshold for variation of the existing orders.

The court considered the evidence presented and the relevant legal principles. It noted that the mother's application for dismissal with costs was based on the argument that the father's application did not meet the threshold for variation as set out in Rice & Asplund. The court examined the father's evidence and submissions, assessing whether there had been a material change in circumstances or that the current arrangements were not in the best interests of the child. Ultimately, the court found that the father's application did not meet the threshold for variation of the existing orders. The court held that the father had not demonstrated that the current arrangements were no longer in the best interests of the child or that there had been a significant change in circumstances warranting a change in the parenting orders.

Consequently, the father's application to vary the 2017 orders was dismissed with costs. The court upheld the existing parenting arrangements, including the child living with the mother and the father's contact arrangements, finding that the mother had discharged the onus of proving that the current orders should remain unchanged. The court also rejected the father's application for equal shared parental responsibility. The mother's application for costs was successful, and the father was ordered to pay the mother's costs of the application.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Judgment making final parenting orders in respect of the child was delivered on 15 March 2017 by her Honour Justice Rees ("the final judgment"), after a four day hearing ("the 2017 orders"). In summary, the 2017 orders provided as follows:·The child live with the mother;·The mother have sole parental responsibility for the child;·The mother notify the father of any proposed decisions of long term care and welfare of the child including school enrolment, medical treatment and take into consideration any views expressed by the father;·The child's name to be registered with NSW Registry of Births, Deaths and Marriages and not be changed without the consent of both parents or by order of the Court;·From 6 May 2018 the father spend time with B on an unsupervised basis having built up from 3 hours a week with the paternal grandmother supervising, to full days unsupervised from 9.30am to 5pm each Sunday;·The father was also to spend "special" days with B;·After 2 years, changeover was to take place at C Town Shopping Centre;·The mother was permitted to suspend B's time with the Father for a period up to two weeks, twice per year for the purpose of going on a holiday with B;·The mother and father to communicate by text message or email and keep each other informed of contact details; and·The mother and father to enrol in the "AA Course" parenting orders program and the "Circle of Security" program. Order 24 of the 2017 orders provided as follows:24. That, if the mother and the father are unable to reach an agreement about the child spending overnight time with the father after she has reached the age of seven (7) years, they shall do all acts and things necessary to arrange mediation provided by an Accredited Family Dispute Practitioner during Term 3 of the 2020 school year, and both parents shall attend the mediation and make a genuine attempt to reach an agreement about the issue of the child commencing to spend overnight time with the father. The parties attended a mediation in early 2020, but failed to reach any agreement. On 8 May 2020, Ms BB of Family Relationships Centre issued the father with a certificate pursuant to s 60I of the Family Law Act 1975 (Cth). On 12 November 2020, the father filed an Initiating Application seeking to vary the 2017 orders. The father seeks a range of orders, but in summary, he seeks discharge of the 2017 orders, an order for equal shared parental responsibility, and for the child to spend time with him each alternate weekend from after school or 3.00 pm on Friday until before school or 9.00 the following Monday, and half school holidays. He continues to accept the child should live with the mother. He also seeks orders for special occasions. On 8 September 2021, there was listed before me a hearing concerning the application of the principles in Rice & Asplund (1979) FLC 90-725. The parties conducted the hearing before me on the basis that the mother pressed for a threshold application of those principles, contending the father's Initiating Application should be dismissed with costs.

Ratio Decidendi

Legal Principle Established

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