Defrey & Radnor (No 2)

[2021] FamCAFC 139

FAMILY COURT OF AUSTRALIA

Defrey & Radnor (No. 2) [2021] FamCAFC 139

Appeal from:

Defrey & Radnor [2020] FCCA 713

Appeal number(s):

EAA 54 of 2020

File number(s):

SYC 3980 of 2012

Judgment of:

AINSLIE-WALLACE, WATTS & TREE JJ

Date of judgment:

5 August 2021

Catchwords:

FAMILY LAW – APPEAL – RE-EXERCISE OF DISCRETION – Where the appellant father was partly successful in the appeal – Where the parties agree that this Court should re-exercise the discretion – Where the father argues that there is a sufficient change of circumstances to vary final orders – The Rice and Asplund test applied – Where there is no new change of circumstance – Father’s Initiating Application dismissed.

Legislation:

Family Law Act 1975 (Cth) s 65DAA

Cases cited:

Defrey & Radnor [2021] FamCAFC 67

Rice and Asplund (1979) FLC 90-725; [1978] FamCA 84

Division:

Appeal Division

Number of paragraphs:

88

Date of last submissions:

1 July 2021

Date of hearing:

In Chambers

Place:

Sydney

Counsel for the Appellant:

Mr Weightman

Solicitor for the Appellant:

Conditsis Lawyers

Counsel for the Respondent:

Dr Smith

Solicitor for the Respondent:

Lander & Rogers

ORDERS

EAA 54 of 2020
SYC 3980 of 2012

BETWEEN:

MR DEFREY

Appellant

AND:

MS RADNOR

Respondent

ORDER MADE BY:	AINSLIE-WALLACE, WATTS & TREE JJ
DATE OF ORDER:	5 AUGUST 2021

THE COURT ORDERS THAT:

1.The father’s Initiating Application filed 7 November 2019 be dismissed.

2.Orders 1–3 of the orders made 16 February 2021 in respect of filing submissions as to costs shall commence from the date of these orders.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Defrey & Radnor (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

AINSLIE-WALLACE, WATTS & TREE JJ:

INTRODUCTION

1. On 12 May 2021 this Court allowed an appeal in part from orders made by a Judge of the Federal Circuit Court of Australia on 9 April 2020 and provided reasons (Defrey & Radnor [2021] FamCAFC 67) (“the May 2021 reasons”). The question as to whether the respondent mother’s application, to dismiss what remains of the appellant father’s Initiating Application filed 7 November 2019, would be heard by this Court or remitted for rehearing at first instance was reserved (Order 4 made 12 May 2021).

2. The focus of the litigation is the one child from the parties’ relationship, X (“the child”) who is now 10 years old.

3. In 2015, final parenting orders were made by consent at the commencement of the final hearing at which both parties were represented by counsel (“the 2015 orders”).

4. What…