Brooks & Brooks - [2022] FedCFamC2F 751

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Brooks & Brooks [2022] FedCFamC2F 751

File number(s): CAC 1302 of 2021

Judgment of: JUDGE W J NEVILLE

Date of judgment: 5 May 2022

Catchwords: FAMILY LAW – Parenting – Application to re-open proceedings following final consent Orders being made in 2018 – Consideration of Rice v Asplund principles – no sufficient change in circumstances to qualify re-opening proceedings – re-commencing litigation not in the best interests of the children – Application dismissed with an Order for costs in favour of the Mother

Legislation:
Family Law Act1975 (Cth), s 117

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), Rules 1.31, 5.08

Cases cited:
Carriel v Lendrum (2015) 53 Fam LR 157

CDW v LVE [2015] WASCA 247

In the Marriage of F and N (1987) FLC ¶91-813

In the Marriage of McEnearney [1980] FamCA 43

King & Finneran [2001] FLC 93-079

Mahoney & Dietrich (2020) FLC 93-955

Marsden v Winch (2010) 42 Fam LR 1

Miller v Harrington (2008) 220 FLR 300; (2009) 39 Fam LR 654

O’Brien & O’Brien [2017] FamCAFC 219

Phillips v Hansford (No.2) (2020) 60 Fam LR 160

Poisat & Poisat (2014) FLC 93-597

Rice & Asplund (1978) 6 Fam LR 570; (1979) FLC ¶90-725

Searson & Searson [2017] FamCAFC 119

Shan & Prasad (2020) 61 Fam LR 440

SPS & PLS (2008) 217 FLR 164; (2008) FLC ¶93–363; (2009) 39 Fam LR 295

Swenson & Brantley (No.2) [2020] FamCAFC 205

Walter & Walter [2016] FamCAFC 56

Spencer Bower & Handley: Res Judicata 5^th edition (London: LexisNexis, 2019)

Division: Division 2 Family Law

Number of paragraphs: 49

Date of hearing In Chambers on the papers

Date of last submission/s: 19 April 2022

Place: Canberra

Counsel for the Applicant Mr J Haddock

Lawyer for the Applicant KJB Law

Counsel for the Respondent Mr G Howard

Lawyer for the Respondent Parker Coles Curtis

ORDERS

CAC 1302 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN: MR BROOKS
Applicant

AND: MS BROOKS
Respondent

ORDER MADE BY:

JUDGE W J NEVILLE

DATE OF ORDER:

5 MAY 2022

ON A FINAL BASIS, THE COURT ORDERS THAT:
1.X (born in 2004) spend time with her Father in accordance with her wishes.
2.The Father’s Application, filed 20 June 2021, otherwise be dismissed.
3.Within 60 days of the date of these Orders, being by 4 July 2022, the Father pay the Mother’s costs, either as agreed or taxed.

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).
Section 121 of the Family Law Act 1975 (Cth) makes…

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 Brooks & Brooks

Details

AGLC: Brooks & Brooks [2022] FedCFamC2F 751
Case: [2022] FedCFamC2F 751
Decision Date

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia dismissed the father's application to re-open the 2018 final consent orders for parenting arrangements made in relation to his two daughters. The father had argued that there had been a significant change in circumstances, including a deterioration in his relationship with his eldest daughter and a decline in his relationship with his middle daughter, which warranted the orders being re-considered. The court was not satisfied that there had been a significant change in circumstances, and the father's concerns were speculative. The court held that it was not in the best interests of the children to re-litigate the parenting arrangements, and the application was dismissed with costs in favour of the mother. The court made an order that the eldest daughter would spend time with the father in accordance with her wishes.

Orders