FAMILY LAW – APPEAL – CHILDREN – SUMMARY DISMISSAL – Where the appellant mother appeals against an order dismissing her application for summary dismissal of an application by the respondent father to re-open parenting proceedings – Where the respondent father sought to re-open parenting proceedings because of “changed circumstances” – Where the trial judge found that there were changed circumstances in accordance with the principles in Rice & Asplund – Whether the failure of consent orders providing for the “re-introduction” of the children to the father amounts to changed circumstances – Where the majority of the Full Court held that it was open to the trial judge to find that there can be changed circumstances when things envisaged in the court’s orders do not occur and that such circumstances existed in this case – Appeal dismissed – Order for costs in favour of the respondent father.
FAMILY LAW – APPEAL – CHILDREN – SUMMARY DISMISSAL – Where appellant mother also appeals against the dismissal of a subsequent application for summary dismissal – Where no error found on the part of the trial judge – Order for costs in favour of the respondent father.
No appearance by solicitor for the Independent Children’s Lawyer
Orders
The appeals be dismissed.
The mother pay the father’s costs of and incidental to the appeals with such costs to be assessed in default of agreement.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Bretton & Bondai has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT…
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
BRETTON & BONDAI
[2013] FamCAFC 168
Case
[2013] FamCAFC 168
Decision Date
CaseChat Overview and Summary
In the matter of Bretton & Bondai, the primary concern was the dispute between the father and the mother regarding the parenting arrangements for their two children. The case was heard in the Family Court of Australia, where the father sought to appeal the dismissal of his substantive application to alter the existing parenting orders. The mother, in turn, appealed against the decision to permit the father’s substantive application to proceed.
The legal issues that the court needed to decide revolved around whether the failure of the therapeutic reintroduction of the father into the children’s lives constituted a change of circumstances sufficient to warrant a substantive hearing. Furthermore, the court had to consider if the potential for significant changes to the existing parenting orders, given the evidence, justified allowing the father’s application to proceed. The court was also tasked with evaluating whether the existing orders could be varied in a significant way based on the new evidence and whether such a change would be in the best interests of the children.
The court’s reasoning was grounded in the evidence presented, particularly the opinion of the psychiatrist, Dr [W], and the father’s testimony. The court found that the failure of the reintroduction process was indeed a change of circumstances, and there was a likelihood that the existing orders could be varied significantly. The court acknowledged the potential detriment of ongoing litigation but concluded that the possibility of the children having meaningful relationships with both parents outweighed these concerns. Consequently, the court dismissed the mother’s appeal and permitted the father’s substantive application to proceed, allowing for a new hearing to potentially alter the parenting arrangements.
The final orders of the court were that the appeals by both parties be dismissed, and the mother was directed to pay the father’s costs of and incidental to the appeals, with costs to be assessed if the parties could not agree on the amount.
Orders
Orders of the court
1.
The appeals be dismissed.
2.
The mother pay the father’s costs of and incidental to the appeals with such costs to be assessed in default of agreement.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
It is necessary to then refer to what his Honour said in the reasons as to how he came to the conclusion that the mother’s application should be dismissed:23.Although it was not expressly discussed at the hearing, I am satisfied that there was a clear understanding by the parties and their legal representatives that the Court was being asked to determine the matter as a preliminary question on the evidence that was put before the Court on the application. …26.Her Honour’s orders, it is clear, were predicated on an expectation that the process of therapeutic reintroduction of the father into the lives of the boys would be successful. They did not contemplate failure and having been made with the consent of the parties after consideration of all of the evidence in the matter, it is, in my view, reasonable to accept that all the parties, as well as O’Reilly J, expected such a reintroduction to work. In any event, on their face, the orders are clear in their meaning. Counselling was to take place with the psychiatrist and when the children were satisfactorily reintroduced to the father they were to begin spending substantial and significant time with him. 27.Having said all that, it appears to me that a significant question for determination now is whether when things do not actually occur as envisaged in the Court’s orders that can be a change of circumstances within the bounds of the applicable principles. I consider that the answer to the question just posed is yes. Whether the change of circumstances, having regard to the evidence in each particular case, is enough to allow the substantive application to proceed is another question. 28.In the case currently under consideration, I am satisfied that the failure of the expected reintroduction of the children to their father is a change in circumstances occurring since the previous orders were made. I am also satisfied, on the evidence currently before me, that there is a likelihood of the existing orders being varied in a significant way as a result of a new hearing. The father seeks orders that would result in a dramatic change to the parenting arrangements applicable to the children. That, of course, will only happen if it is found to be in the best interests of the children. That is unlikely to be found to be the case if the father does not make out his case of alleged alienation by the mother. 29.The evidence, albeit untested, that persuades me, ultimately, to dismiss the mother’s application is the opinion evidence of the psychiatrist, Dr [W], which I have extracted from the conclusions in his report and quoted earlier in these reasons, as well as the evidence of the father that I have referred to in paragraph 17 of these reasons. In particular, Dr [W’s] opinion that it appears the mother has either consciously or inadvertently reinforced the eldest child’s anxiety by assisting him in avoiding his father coupled with the evidence of the father is evidence satisfying me, at this point in time, that the existing orders could be varied in a significant way as a result of a new hearing. The treatment options set out by Dr [W] clearly reflect ways in which the orders could, ultimately, be significantly varied. 30.I am mindful that the ongoing litigation itself and any continued conflict between the parents are potentially detrimental to these two children, but the nature of the significant change that might be the end result of further proceedings, namely orders that facilitate the children being able to have meaningful relationships with both parents rather than just one, in my view, on balance, justifies permitting the father’s substantive application to proceed.(emphasis added)