BONNER & LANCASTER - [2020] FCCA 2956

FEDERAL CIRCUIT COURT OF AUSTRALIA

BONNER & LANCASTER

[2020] FCCA 2956

Catchwords:
FAMILY LAW – Application for parenting arrangements for child aged 10 – whether the rule of Rice & Asplund should be applied in circumstances where the parties consented to final orders in September 2017 – whether there has been a significant change in circumstances – whether the need to determine what is in the best interests of the child outweighs the need to avoid subjecting children to further litigation – matters to be considered – application dismissed.

Legislation:

Family Law Act 1975 (Cth), ss. 69ZN, 69ZQ

Cases cited:

Bennett & Bennett (1991) FLC 92-191

CDJ v VAJ (1998) FLC 92-828

In the Marriage of McEnearney (1980) FLC 90-866

King & Finneran (2001) FLC 93-079

Marsden v Winch (2009) 42 Fam LR 1

Rice & Asplund (1979) FLC 90-725

SPS & PLS [2008] FamCAFC 16

Walter & Walter [2016] FamCAFC 56

Applicant:

MR BONNER

Respondent:

MS LANCASTER

File Number:

ADC 1478 of 2020

Judgment of:

Judge Brown

Hearing date:

9 October 2020

Date of Last Submission:

9 October 2020

Delivered at:

Adelaide

Delivered on:

30 October 2020

REPRESENTATION

Counsel for the Applicant:

Mr Wabnitz

Solicitors for the Applicant:

Daniel John Lawyers

Counsel for the Respondent:

Mr Childs

Solicitors for the Respondent:

Nicholas Eid Lawyer

ORDERS

The application filed on 16 April 2020 is dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 1478 of 2020

MR BONNER

Applicant

And

MS LANCASTER

Respondent

REASONS FOR JUDGMENT

Introduction

It is axiomatically the case that it is in the best interests of the children that arrangements for their care should be predictable and stable. In basic terms, children benefit if they know where they are to live and when they are to spend time with loved ones and these arrangements are fixed and certain.
As a consequence of this principle, a rule of practice has been developed in the Family Law Courts to the effect that, resolved proceedings in respect of the care of children, should not be reopened unless there has been a significant change of circumstances relating to the child concerned. Lawyers refer to this principle as the rule in Rice & Asplund.[1]
[1] Rice & Asplund (1979) FLC 90-725
Mr Bonner “the father” and Ms Lancaster “the mother” are the parents of X born 2010. The father seeks to pursue further proceedings in respect of X’s care notwithstanding that there has previously been a lengthy and thorough investigation into what are the appropriate arrangements for her care.
On 29 September 2017 Judge Mead (formerly of this court) made final orders in respect of parenting arrangements for X. At the time, Judge Mead had the benefit of a family report prepared by Ms A and X herself was represented by an independent children’s lawyer.
The salient orders of 27 September 2017, which were made…

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 BONNER & LANCASTER

Details

AGLC: Bonner and Lancaster [2020] FCCA 2956
Case: [2020] FCCA 2956
Decision Date: 30 October 2020

CaseChat Overview and Summary

This matter concerned an application for parenting arrangements for a ten-year-old child. The parties had previously consented to final orders in September 2017. The applicant sought to vary these orders.

The central legal issues before the court were whether the rule established in *Rice & Asplund* should be applied in the present circumstances, given the prior consent orders, and whether there had been a significant change in circumstances since those orders were made. The court was also required to consider whether the need to determine the child's best interests outweighed the principle of avoiding further litigation for the child.

Judge Brown dismissed the application, finding that the threshold for varying the existing parenting orders had not been met. The court determined that the circumstances did not warrant departing from the final orders made by consent in 2017, and that the applicant had not demonstrated a significant change in circumstances sufficient to justify further litigation concerning the child's best interests. The need to provide finality and avoid subjecting the child to ongoing disputes was given considerable weight.

Orders

Orders of the court

The application filed on 16 April 2020 is dismissed.

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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