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 Marsden v Winch (2010) 42 Fam LR 1 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 |
| 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
Subject to the following Orders, the Father’s Application, filed 7th November 2019, be dismissed;
The Father pay the Mother’s costs, either as agreed or taxed;
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;
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;
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
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
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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