FAMILY COURT OF AUSTRALIA
Betros & Betros [2021] FamCA 378
File number(s): PAC 3685 of 2011 Judgment of: HANNAM J Date of judgment: 9 June 2021 Catchwords: FAMILY LAW – JURISDICTION – Whether there is a significant change in circumstances to warrant a fresh hearing in respect of parenting arrangements – Consideration and application of the rule derived from Rice & Asplund (1979) FLC 90-725 – Best interests of the children – Where the applicant father seeks to revisit existing parenting orders relating to the children’s time with him – Where both the mother and ICL seek orders that the father’s application to reopen proceedings be dismissed – Where the Court is not satisfied that there are changes in circumstances sufficient to justify reopening proceedings – Father’s application to reopen proceedings dismissed – Where it is otherwise appropriate to make an order that the ICL explain to the children the supervision requirement of their time with the father, as recommended by the family consultant. Cases cited: Betros & Betros [2016] FamCA 225
Betros & Betros [2017] FamCAFC 90
Marsden & Winch [2009] FamCAFC 152
Miller & Harrington (2008) FLC 93-383
Prewett & Mann [2013] FamCAFC 130
In the marriage ofRice & Asplund (1979) FLC 90-725
Number of paragraphs: 163 Date of hearing: 14 – 15 December 2020 Place: Parramatta Counsel for the Applicant: Ms Conte-Mills Counsel for the Respondent: Ms McCarthy Counsel for the Independent Children's Lawyer: Ms Seric Solicitor for the Applicant: Phillip A Wilkins & Associates Solicitor for the Respondent: Womens Legal Services NSW Solicitor for the Independent Children's Lawyer: Sydney West Family Lawyers ORDERS
PAC 3685 of 2011 BETWEEN: MR BETROS
Applicant
AND: MS BETROS
Respondent
ORDER MADE BY:
HANNAM J
DATE OF ORDER:
9 JUNE 2021
THE COURT ORDERS THAT:
1.The Independent Children’s Lawyer is to explain to the children the Orders made in 2016 with respect to their supervised time with their father and in doing so, may be assisted by any person with suitable expertise as the ICL considers appropriate.
2.The father’s Initiating Application filed 1 March 2017 and any Amended Initiating Application is otherwise dismissed.
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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Betros & Betros has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HANNAM J:
INTRODUCTION
The parties (“the mother” and “the father”) have a significant history of litigation in relation to the parenting arrangements for their three children who are now aged between 12 and 15 (“the children”).
The first tranche of litigation resolved by way of final orders made…
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CaseChat Overview and Summary
The court's primary consideration was the best interests of the children. The father's application to reopen the proceedings was based on his contention that there had been a significant change in circumstances. However, the court found that the evidence presented did not establish a prima facie case of changed circumstances. Even if some changes were accepted, they were not deemed sufficient to justify reopening the proceedings, particularly given the limited prospect of success for the father's application and the potential detriment to the children from further litigation. The court noted that previous proceedings had identified a need to protect the children from psychological harm and that the father had engaged in behaviour designed to undermine the children's relationship with their mother.
Despite dismissing the father's application to reopen the parenting orders, the court acknowledged the children's strong views regarding their time with their father. In line with a recommendation from the family consultant and with the agreement of both parties, the court ordered that the Independent Children's Lawyer, potentially with expert assistance, explain to the children the reasons for the supervised time arrangements. The father's Initiating Application and any amended applications were otherwise dismissed.
Orders
Orders of the court
THE COURT ORDERS THAT:
1. The Independent Children’s Lawyer is to explain to the children the Orders made in 2016 with respect to their supervised time with their father and in doing so, may be assisted by any person with suitable expertise as the ICL considers appropriate.
2. The father’s Initiating Application filed 1 March 2017 and any Amended Initiating Application is otherwise dismissed.
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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Betros & Betros has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Background
Background to the litigation
Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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