BROWN & HAYDEN - [2021] FCCA 134

FEDERAL CIRCUIT COURT OF AUSTRALIA

BROWN & HAYDEN

[2021] FCCA 134

Catchwords:
FAMILY LAW – Parenting – Rice & Asplund – significant change in circumstances to ground a reopening of final parenting orders – best interest considerations.

Legislation:

Family Law Act 1975 (Cth), ss.4, 4AB, 60B, 60CA, 60CC, 61DA, 65D,

65DAA, 68L, 117

Cases cited:

Rice & Asplund [1978] FamCA 84

Carriel & Lendrum [2015] FamCAFC 43

Phillips & Hansford (No 2) [2019] FamCAFC 165

King & Finneran (2001) FLC 93–079

Newling & Mole [1987] FamCA 21

McEnearney & McEnearney (1980) FLC 90–866

Freeman & Freeman [1986] FamCA 23

Houston & Sedorkin (1979) FLC 90–699

C v F [2005] FamCA 110

Bennett & Bennet [1990] FamCA 148

SPS & PLS [2008] FamCAFC 16

Goode & Goode [2006] FamCA 1346

Banks & Banks [2015] FamCAFC 36

R & R: Children’s Wishes (2000) FLC 93-000

Applicant:

MR BROWN

Respondent:

MS HAYDEN

File Number:

SYC 2773 of 2010

Judgment of:

Judge Kemp

Hearing date:

10 December 2020

Date of Last Submission:

10 December 2020

Delivered at:

Sydney

Delivered on:

2 February 2021

REPRESENTATION

Counsel for the Applicant:

Mr Gardiner

Solicitors for the Applicant:

James & Jaramillo Legal Pty Ltd

Counsel for the Respondent:

Ms Kennedy

Solicitors for the Respondent:

Marks Griffiths & Bova

THE COURT ORDERS THAT:

The father’s Initiating Application filed on 21 April 2020 be dismissed.
The question of the mother’s costs be stood over for further determination in accordance with the following directions.
If the mother seeks costs, an appropriate written application quantifying the same may be made within 28 days of today’s date, (supported by any documentary material, including a verified financial statement) to be filed and served within that time period and a copy forwarded to Chambers. The Court will then deal with that matter by way of written submissions, unless the parties wish to be heard orally. If no such application is made within the time period specified, there will be no order as to costs.
Save as to the above, the matter is removed from the active pending cases list.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 2773 of 2010

MR BROWN

Applicant

And

MS HAYDEN

Respondent

REASONS FOR JUDGMENT

Introduction

In this matter final parenting orders were made on 2 July 2014 in the Family Court of Australia by Justice Loughnan (“the final orders”).
The final orders related to the child of the parties’ relationship, X, born in 2009 (“the child”), currently aged 11 years and were made following an undefended hearing with an ex-tempore judgment, although no copy of that judgment has been produced and relied upon in these proceedings. On the occasion that the final orders were made, the Family Court of Australia’s record indicated that the father had appeared self-represented by telephone for a period of, approximately, 30 minutes. Ms Mordant…

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 BROWN & HAYDEN

Details

AGLC: BROWN & HAYDEN [2021] FCCA 134
Case: [2021] FCCA 134
Decision Date: 2 February 2021

CaseChat Overview and Summary

In the Family Court of Australia, Judge Kemp considered an application by the father seeking to reopen final parenting orders. The mother opposed this application.

The central legal issue before the court was whether there had been a significant change in circumstances since the making of the final parenting orders, such that it would be in the children's best interests to reconsider those orders. The court was required to apply the principles established in *Rice & Asplund* concerning the threshold for varying final parenting orders.

Judge Kemp dismissed the father's application, finding that the evidence presented did not demonstrate a significant change in circumstances warranting a departure from the final orders. The court's reasoning focused on the high threshold required to reopen final parenting orders, emphasising that mere dissatisfaction or a desire for different arrangements is insufficient. The best interests of the children remained the paramount consideration, and the court concluded that reopening the matter would not serve those interests.

The father's application was dismissed. The question of the mother's costs was stood over, with directions for the mother to file a written application within 28 days if she sought costs, failing which there would be no order as to costs. The matter was then removed from the active pending cases list.

Orders

Orders of the court

The father’s Initiating Application filed on 21 April 2020 be dismissed.

The question of the mother’s costs be stood over for further determination in accordance with the following directions.

If the mother seeks costs, an appropriate written application quantifying the same may be made within 28 days of today’s date, (supported by any documentary material, including a verified financial statement) to be filed and served within that time period and a copy forwarded to Chambers. The Court will then deal with that matter by way of written submissions, unless the parties wish to be heard orally. If no such application is made within the time period specified, there will be no order as to costs.

Save as to the above, the matter is removed from the active pending cases list.

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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