BEAUCHAMP & BEAUCHAMP - [2019] FCCA 1289

FEDERAL CIRCUIT COURT OF AUSTRALIA

BEAUCHAMP & BEAUCHAMP

[2019] FCCA 1289

Catchwords:
FAMILY LAW – Parenting application brought by the Father resisted by the Mother on the basis of the rule in Rice & Asplund – claim by Father that he is no longer able to afford to pay private school fees but in circumstances where he infers that if the children spent more regular time with him he would be able to contribute to the private school fees – the Mother also sought to amend the final Orders – either Rice & Asplund applies to both applications or to neither of them – the Mother cannot rely upon that Rule to thwart the Father yet herself seek to change the final Orders.

Legislation:

Family Law Act 1975 (Cth)

Cases cited:

Carriel v Lendrum (2015) 53 Fam LR 157; (2015) FLC ¶93-640
Marsden v Winch (2010) 42 Fam LR 1
Miller v Harrington (2008) 220 FLR 300; (2009) 39 Fam LR 654
O’Brien & O’Brien [2017] FamCAFC 219
Poisat & Poisat (2014) FLC 93-597

Rice & Asplund (1978) 6 Fam LR 570; (1979) FLC ¶90-725

SPS & PLS (2008) 217 FLR 164; (2008) FLC ¶93–363; (2009) 39 Fam LR 295
Stewart & Stewart [2017] FamCAFC 67
Walter & Walter [2016] FamCAFC 56

Applicant:

MR BEAUCHAMP

Respondent:

MS BEAUCHAMP

File Number:

CAC 1901 of 2009

Judgment of:

Judge Neville

Hearing date:

27 November 2018

Date of Last Submission:

12 December 2018

Delivered at:

Canberra

Delivered on:

31 May 2019

REPRESENTATION

Solicitors for the Applicant:

Self-Represented

Solicitors for the Respondent:

Watts McCray Lawyers, Canberra

ORDERS

THE COURT NOTES THAT:

(A)Both parties separately sought Orders as reflected in Order 1 below regarding [X]; accordingly,

ON A FINAL BASIS, THE COURT ORDERS THAT:

(1)By consent, the child, [X] (born: … 2004), is to spend time with the Applicant Father in accordance with her wishes.
(2)Each party is restrained from discussing these proceedings with or in the presence of the children, and shall take all reasonable steps to ensure that no other person does so.
(3)These parenting Orders are to be notified to the Child Support Agency by both parents.
(4)There be no Order as to costs.
(5)All extant Applications be dismissed and the matter finalised and removed immediately from the docket.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CANBERRA

CAC 1901 of 2009

MR BEAUCHAMP

Applicant

And

MS BEAUCHAMP

Respondent

REASONS FOR JUDGMENT

Introduction

For present purposes, the following basic facts will suffice concerning the long-standing litigious contests between the parties regarding parenting matters concerning their two children. The two children in question are [X] (who turns 15 in … of this year), and [Y] (who will turn 13 in …). [Y] has some special needs.
The Father has re-married and has two children from his new relationship, [A] (aged 8) and [B] (aged 4 or thereabouts).…

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.

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Details

AGLC: BEAUCHAMP & BEAUCHAMP [2019] FCCA 1289
Case: [2019] FCCA 1289
Decision Date: 31 May 2019

CaseChat Overview and Summary

In the Family Court of Australia, Judge Neville considered a parenting application brought by the Father, which was resisted by the Mother. The Father's primary contention was that he was no longer able to afford private school fees. However, he inferred that if the children spent more regular time with him, he would be able to contribute to these fees. The Mother also sought to amend the final parenting orders.

The central legal issue before the court was the application of the rule in *Rice & Asplund*. Specifically, the court had to determine whether this rule, which generally prevents a party from seeking to vary final parenting orders unless there has been a significant change in circumstances, applied to both the Father's application regarding school fees and the Mother's application to amend the final orders. The Father argued that the Mother could not rely on the *Rice & Asplund* rule to thwart his application while simultaneously seeking to change the final orders herself.

Judge Neville reasoned that the *Rice & Asplund* rule should be applied consistently to both parties' applications. The court found that the Mother could not invoke the rule to prevent the Father from seeking orders concerning school fees, while at the same time seeking to alter the existing final orders. The court noted that both parties had separately sought orders regarding the child's time with the Father.

By consent, the court ordered that the child, [X], would spend time with the Applicant Father in accordance with her wishes. Further orders were made restraining both parties from discussing the proceedings with or in the presence of the children, and requiring notification of the parenting orders to the Child Support Agency. There was no order as to costs, and all extant applications were dismissed, with the matter finalised.

Orders

Orders of the court

THE COURT NOTES THAT:

(A) Both parties separately sought Orders as reflected in Order 1 below regarding [X]; accordingly,

ON A FINAL BASIS, THE COURT ORDERS THAT:

(1) By consent, the child, [X] (born: … 2004), is to spend time with the Applicant Father in accordance with her wishes.

(2) Each party is restrained from discussing these proceedings with or in the presence of the children, and shall take all reasonable steps to ensure that no other person does so.

(3) These parenting Orders are to be notified to the Child Support Agency by both parents.

(4) There be no Order as to costs.

(5) All extant Applications be dismissed and the matter finalised and removed immediately from the docket.

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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