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 2012BETWEEN: 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
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).
The focus of the litigation is the one child from the parties’ relationship, X (“the child”) who is now 10 years old.
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”).
What…
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- Defrey & Radnor (No. 2) [2021] FamCAFC 139
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- [2021] FamCAFC 139
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CaseChat Overview and Summary
The court held that the father had not established a prima facie case of a relevant change of circumstances. The argument that because one aspect of a dispute in relation to parental responsibility might need to come back to the court at some future point, all other aspects the father wished to litigate in relation to the 2015 orders should also be available to be dealt with in the same litigation was not persuasive. The court was not satisfied that, assuming the evidence of the father was accepted, there were "new events" sufficient to establish a new inquiry would be in the child's best interests. Accordingly, the father's Initiating Application filed on 7 November 2019 was dismissed. The court also ordered that the dates and times in Orders 1–3 made on 16 February 2021 in respect of filing submissions as to costs shall commence from the date of these reasons.
Orders
Orders of the court
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).
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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