Berry & Norman (No 2) - [2024] FedCFamC2F 1404

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Berry & Norman (No 2) [2024] FedCFamC2F 1404

File number: SYC 2972 of 2020

Judgment of: JUDGE LIOUMIS

Date of judgment: 25 October 2024

Catchwords: FAMILY LAW – CHILDREN – Consideration of s 65DAAA of the Family Law Act 1975 (Cth) – Where final parenting orders were made in May and December 2022 – Where the Applicant father seeks to reopen the proceedings – Where the Respondent mother seeks to dismiss the father’s application – Where the parental conflict has impacted the children’s access to therapeutic and medical assistance – Where the parents have demonstrated no joint decision-making capacity in respect of the children as required by the final parenting orders – Where the Court is satisfied that there has been a significant change in circumstances since the final parenting orders were made – Where the Court is satisfied that it is in the best interests of the children to reconsider the final parenting orders

Legislation: Family Law Act 1975 (Cth) s 65DAAA

Cases cited:
Albert & Plowman [2022] FedCFamC1F 243

Carlyon & Graham [2024] FedCFamC1F 443

Berry & Norman [2022] FedCFamC2F 1776

Whitehill & Talaska [2024] FedCFamC2F 768

Division: Division 2 Family Law

Number of paragraphs: 114

Date of hearing: 8 July 2024

Place: Sydney

Counsel for the Applicant: Mr Sansom SC

Solicitor for the Applicant: ATW Family Law

Counsel for the Respondent: Ms Lane of Counsel

Solicitor for the Respondent: Sexton Family Law
ORDERS

SYC 2972 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR BERRY

Applicant

AND:
MS NORMAN

Respondent

ORDER MADE BY:

JUDGE LIOUMIS

DATE OF ORDER:

25 OCTOBER 2024

THE COURT ORDERS THAT:
1.Pursuant to section 65DAAA of the Family Law Act 1975 (Cth), the Court is satisfied that, in all of the circumstances, there has been a significant change of circumstances since the final parenting Orders were made and that it is in the best interests of the children for the final parenting Orders to be reconsidered.

2.Order 1 of the Response to Initiating Application filed by the Mother on 23 October 2023 be dismissed.
3.The Mother file an amended Response within 21 days of the date of these Orders.
4.The matter be listed before Judicial Registrar Mooney for directions on 19 November 2024 at 11.30 am via Microsoft Teams.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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 Berry & Norman (No 2)

Details

AGLC: Berry & Norman (No 2) [2024] FedCFamC2F 1404
Case: [2024] FedCFamC2F 1404
Decision Date: 25 October 2024

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, Mr Berry, the father, sought to reopen parenting proceedings against Ms Norman, the mother, in relation to their children. The court was required to consider whether a significant change in circumstances had occurred since the final parenting orders were made in May and December 2022, and whether it was in the children’s best interests to reconsider those orders. The parents had demonstrated an inability to make joint decisions regarding the children, impacting the children’s access to necessary therapeutic and medical assistance. The mother sought to dismiss the father’s application to reopen the proceedings.

The court examined the evidence presented and found that there had been a significant change in circumstances since the final parenting orders were made. The parents' ongoing conflict and inability to cooperate had not only affected the children's well-being but also their access to essential services. The court was satisfied that the children’s best interests would be served by reconsidering the final parenting orders. Consequently, the court dismissed the mother’s application to dismiss the father’s application and ordered the mother to file an amended response within 21 days. The matter was to be listed for directions before Judicial Registrar Mooney on 19 November 2024.

The court’s orders reflected its findings, emphasising the need to protect the children’s welfare and ensure their access to necessary support. By allowing the reconsideration of the final parenting orders, the court aimed to address the significant change in circumstances and the parents' demonstrated inability to act in the children’s best interests. The court's decision underscored the importance of the children’s needs in family law proceedings and the court's role in facilitating their well-being.

Orders

Orders of the court

SYC 2972 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR BERRY

Applicant

AND:

MS NORMAN

Respondent

ORDER MADE BY:

JUDGE LIOUMIS

DATE OF ORDER:

25 OCTOBER 2024

THE COURT ORDERS THAT:

1. Pursuant to section 65DAAA of the Family Law Act 1975 (Cth), the Court is satisfied that, in all of the circumstances, there has been a significant change of circumstances since the final parenting Orders were made and that it is in the best interests of the children for the final parenting Orders to be reconsidered.

2. Order 1 of the Response to Initiating Application filed by the Mother on 23 October 2023 be dismissed.

3. The Mother file an amended Response within 21 days of the date of these Orders.

4. The matter be listed before Judicial Registrar Mooney for directions on 19 November 2024 at 11.30 am via Microsoft Teams.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number:	SYC 2972 of 2020
Judgment of:	JUDGE LIOUMIS
Date of judgment:	25 October 2024
Catchwords:	FAMILY LAW – CHILDREN – Consideration of s 65DAAA of the Family Law Act 1975 (Cth) – Where final parenting orders were made in May and December 2022 – Where the Applicant father seeks to reopen the proceedings – Where the Respondent mother seeks to dismiss the father’s application – Where the parental conflict has impacted the children’s access to therapeutic and medical assistance – Where the parents have demonstrated no joint decision-making capacity in respect of the children as required by the final parenting orders – Where the Court is satisfied that there has been a significant change in circumstances since the final parenting orders were made – Where the Court is satisfied that it is in the best interests of the children to reconsider the final parenting orders
Legislation:	Family Law Act 1975 (Cth) s 65DAAA
Cases cited:	Albert & Plowman [2022] FedCFamC1F 243 Carlyon & Graham [2024] FedCFamC1F 443 Berry & Norman [2022] FedCFamC2F 1776 Whitehill & Talaska [2024] FedCFamC2F 768
Division:	Division 2 Family Law
Number of paragraphs:	114
Date of hearing:	8 July 2024
Place:	Sydney
Counsel for the Applicant:	Mr Sansom SC
Solicitor for the Applicant:	ATW Family Law
Counsel for the Respondent:	Ms Lane of Counsel
Solicitor for the Respondent:	Sexton Family Law

SYC 2972 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR BERRY Applicant
AND:	MS NORMAN Respondent

ORDER MADE BY:	JUDGE LIOUMIS
DATE OF ORDER:	25 OCTOBER 2024