DEFREY & RADNOR

Case [2020] FCCA 713


FEDERAL CIRCUIT COURT OF AUSTRALIA

DEFREY & RADNOR [2020] FCCA 713
Catchwords:
FAMILY LAW – Procedural – Application to re-open proceedings following consent orders being made in 2015 – consideration of Rice v Asplund principles – Applicant Father confirmed that issues raised are more about slight refinement of Orders – no other Application filed since 2015 Orders which further leads to the view that the issues raised by the Father are more matters of procedure and logistics and do not constitute a “material change in circumstances” – Application dismissed with an Order for costs in favour of the Mother.

Legislation:

Family Law Act 1975 (Cth), s.

Cases cited:

Carriel v Lendrum (2015) 53 Fam LR 157

CDW v LVE [2015] WASCA 247

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
Poisat v Poisat (2014) FLC 93-597

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

SPS v PLS (2008) 217 FLR 164; (2008) FLC 93–363; (2009) 39 Fam LR 295
Walter & Walter [2016] FamCAFC 56

Applicant: MR DEFREY
Respondent: MS RADNOR
File Number: SYC 3980 of 2012
Judgment of: Judge WJ Neville
Hearing date: 13 December 2019
Date of Last Submission: 2 March 2020
Delivered at: Canberra
Delivered on: 9 April 2020

REPRESENTATION

Counsel for the Applicant: Mr M Weightman
Solicitors for the Applicant: Conditsis Lawyers
Counsel for the Respondent: Ms M Vohra SC
Solicitors for the Respondent: Lander & Rogers

ORDERS

  1. Subject to the following Orders, the Father’s Application, filed 7th November 2019, be dismissed;

  2. The Father pay the Mother’s costs, either as agreed or taxed;

  3. Within 14 days of the date of these Orders, being by 23 April 2020,  the parties are to provide Chambers with an agreed form of Orders regarding:

    (a)obtaining a passport for the child, and

    (b)the provision of information to either or both parents regarding the child’s participation in non-school activities;

  4. Absent agreement regarding the form of Orders in relation to Order 3 of these Orders, the parties are to attend mediation, and in the absence of resolution, the parties are to attend arbitration, with the costs of both processes to be borne equally by the parties;

  5. Regarding any other issue relating to the past and current parenting Orders, the parties are to attend mediation in the first instance, and failing agreement, they shall attend arbitration, with the costs of both processes to be borne equally by the parties.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CANBERRA

SYC 3980 of 2012

MR DEFREY

Applicant

And

MS RADNOR

Respondent

REASONS FOR JUDGMENT

Introduction

  1. This matter relates to one child, X, who is 8 years old.  Final Orders were made by consent in May 2015.  The Applicant Father now seeks to re-visit those Orders.  He contends that,…

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AGLC
DEFREY & RADNOR [2020] FCCA 713
Case
[2020] FCCA 713
Decision Date

CaseChat Overview and Summary

In the Family Court of Australia, Judge WJ Neville considered an application by the Father to re-open proceedings following consent orders made in 2015. The Mother was the respondent. The dispute concerned issues raised by the Father regarding the 2015 consent orders.

The primary legal issue before the court was whether the Father had demonstrated a material change in circumstances sufficient to warrant re-opening the 2015 consent orders, applying the principles established in *Rice v Asplund*. The court also considered the nature of the issues raised by the Father in light of the absence of any further applications filed since the 2015 orders.

Judge Neville reasoned that the issues raised by the Father appeared to be more about procedural and logistical refinements of the existing orders rather than a material change in circumstances. The lack of any subsequent applications since 2015 further supported this view. Consequently, the Father's application to re-open the proceedings was dismissed. The court ordered the Father to pay the Mother's costs. However, the court also made orders requiring the parties to provide an agreed form of orders regarding obtaining a passport for the child and the provision of information about the child's non-school activities within 14 days. If agreement was not reached on these specific matters, the parties were to attend mediation and, if necessary, arbitration, with costs to be borne equally. For any other parenting order issues, mediation was to be attempted first, followed by arbitration if no agreement was reached, with costs again to be borne equally.

Orders

Orders of the court

1.

Subject to the following Orders, the Father’s Application, filed 7th November 2019, be dismissed;

2.

The Father pay the Mother’s costs, either as agreed or taxed;

3.

Within 14 days of the date of these Orders, being by 23 April 2020, the parties are to provide Chambers with an agreed form of Orders regarding:

(a) obtaining a passport for the child, and

(b) the provision of information to either or both parents regarding the child’s participation in non-school activities;

4.

Absent agreement regarding the form of Orders in relation to Order 3 of these Orders, the parties are to attend mediation, and in the absence of resolution, the parties are to attend arbitration, with the costs of both processes to be borne equally by the parties;

5.

Regarding any other issue relating to the past and current parenting Orders, the parties are to attend mediation in the first instance, and failing agreement, they shall attend arbitration, with the costs of both processes to be borne equally by the parties.

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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