BENSON & DRURY - [2019] FCCA 3472

FEDERAL CIRCUIT COURT OF AUSTRALIA

BENSON & DRURY

[2019] FCCA 3472

Catchwords:
FAMILY LAW – Children – where final parenting orders were made in August 2017 permitting the mother to relocate from Adelaide to Melbourne with the children – where the father seeks orders for the children to return to live in Adelaide – where the mother asks that the court determine the Rice & Asplund question as a threshold issue - where the children suffer mental health issues – whether the deterioration of the children’s mental health constitutes a change in circumstances sufficient to justify reopening proceedings – whether a Family Report should be prepared before the principles in Rice & Asplund are considered – applications dismissed.

Cases cited:

Rice & Asplund (1979) FLC 90-725

SPS & PLS [2008] FamCAFC 16

Benson & Drury [2017] FamCA 578

Miller and Harrington (2008) FLC 383

Poisat & Poisat (2014) FLC 597

Applicant:

MR BENSON

Respondent:

MS DRURY

File Number:

ADC 3749 of 2015

Judgment of:

Judge Kari

Hearing date:

31 October 2019

Date of Last Submission:

31 October 2019

Delivered at:

Adelaide

Delivered on:

29 November 2019

REPRESENTATION

Counsel for the Applicant:

Mr Praolini

Solicitors for the Applicant:

Newman Lawyers

Counsel for the Respondent:

Ms Pyke QC

Solicitors for the Respondent:

D'Angelo Lawyers

ORDERS

That the following be dismissed:
(a)Paragraphs 5, 6 and 7 of the Final Orders sought by the father in his Amended Response filed 14 September 2018;
(b)Paragraph 4 of the Interim Orders sought by the father in his Amended Response filed 14 September 2018;
(c)The Application in a Case of the Father filed 10 April 2019; and
(d)The Application in a Case of the father filed 12 July 2019.
That all parenting proceedings otherwise be dismissed as finalised.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 3749 of 2015

MR BENSON

Applicant

And

MS DRURY

Respondent

REASONS FOR JUDGMENT

Introduction

These proceedings relate to the parties two children B who is almost 14 years of age and C who is eleven years of age.
The proceedings were commenced by the father as he wants the court to reconsider the final parenting orders made at the conclusion of a trial on 9 August 2017, which permitted the mother to relocate the children from Adelaide to Melbourne in January 2018.
The central dispute between the parties is whether the agreed deterioration of the children’s mental health constitutes a change of circumstances so as to warrant the Court reconsidering the parenting arrangements for the children.

Background

Sadly for the children, their parents have been in litigation now for a period in excess of four years. It is the view of various experts over a significant period of time that the ongoing litigation between their parents has had and continues to have a significantly deleterious effect on the children.
It should also be noted from…

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: BENSON & DRURY [2019] FCCA 3472
Case: [2019] FCCA 3472
Decision Date: 29 November 2019

CaseChat Overview and Summary

In the Family Court of Australia, Judge Kari considered a dispute between a father and a mother concerning final parenting orders made in August 2017. These orders had permitted the mother to relocate from Adelaide to Melbourne with the children. The father sought orders for the children to return to live in Adelaide, while the mother requested that the court first determine the application of the principles in *Rice v Asplund* as a threshold issue. The children were noted to be suffering from mental health issues.

The court was required to determine two primary legal issues. Firstly, whether the deterioration of the children’s mental health constituted a change in circumstances sufficient to justify reopening the final parenting proceedings. Secondly, whether a Family Report should be prepared before the court considered the principles established in *Rice v Asplund*.

Judge Kari dismissed the father's applications, finding that the deterioration in the children's mental health did not, in itself, constitute a sufficient change in circumstances to warrant reopening the final parenting orders made in 2017. The court also determined that a Family Report was not required before considering the *Rice v Asplund* principles. Consequently, all parenting proceedings were dismissed as finalised.

Orders

Orders of the court

That the following be dismissed:

(a) Paragraphs 5, 6 and 7 of the Final Orders sought by the father in his Amended Response filed 14 September 2018;

(b) Paragraph 4 of the Interim Orders sought by the father in his Amended Response filed 14 September 2018;

(d) The Application in a Case of the father filed 12 July 2019.

That all parenting proceedings otherwise be dismissed as finalised.

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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