Downie & Spencer - [2022] FedCFamC1F 911

Federal Circuit and Family Court of Australia
(DIVISION 1)
Downie & Spencer [2022] FedCFamC1F 911

File number(s): BRC 4653 of 2022

Judgment of: BAUMANN J

Date of judgment: 16 November 2022

Catchwords: FAMILY LAW – PARENTING – Where the father reinstituted proceedings less than one month after final parenting consent Orders were made – Where the mother makes a cross-application in her Response – No appearance by the father – Consideration of Rice & Asplund principles – Where there is insufficient evidence of any change in circumstances – Applications dismissed

Legislation: Family Law Act 1975 (Cth)

Cases cited:
Garrety & Steyn (No. 2) [2021] FamCA 277

Rice & Asplund (1979) FLC 90-725

Division: Division 1 First Instance

Number of paragraphs: 14

Date of hearing: 16 November 2022

Place: Brisbane

Solicitor for the Applicant: Self-represented litigant (did not participate)

Solicitor for the Respondent: Ms Marunda, HCM Legal as friend of the Court
ORDERS

BRC 4653 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR DOWNIE

Applicant

AND:
MS SPENCER

Respondent

order made by:

BAUMANN J

DATE OF ORDER:

16 NOVEMBER 2022

THE COURT ORDERS ON A FINAL BASIS:
1.That the Applicant father’s Initiating Application filed 21 April 2022 (amended 24 June 2022) be dismissed.
2.That the Respondent mother’s Response filed 25 August 2022 (amended 11 October 2022) (incorporating a cross application) be dismissed.

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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Downie & Spencer has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
(Settled from the oral reasons delivered)
BAUMANN J:

This complicated parenting case that involved now four children, W (now aged 16), X (now aged 14), Y (now aged 11), and Z (now aged eight) – those children being part of a sibship group of seven children – have been the subject of significant litigation since the parties’ separated in 2014. It is not necessary to identify in these succinct Reasons delivered ex tempore all that history, save to note that after the matter had been listed for trial and with the benefit of the parties having lawyers appointed under the section 102NA scheme (with final cross‑domestic violence orders remaining in place until 2026), on 23 March 2022 the Court made final consent orders (“the final Orders”) in respect of the four…

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 Downie & Spencer

Details

AGLC: Downie & Spencer [2022] FedCFamC1F 911
Case: [2022] FedCFamC1F 911
Decision Date

CaseChat Overview and Summary

This case concerns the parenting arrangements of four children, W, X, Y, and Z, between the parties, Mr Downie and Ms Spencer. The children are part of a sibship group of seven, and have been the subject of significant litigation since the parties' separation in 2014. The father reinstituted proceedings less than one month after final parenting consent Orders were made on 23 March 2022. The mother made a cross-application in her Response. The father did not appear at the hearing. The legal issues the Court was required to decide were whether there had been a material and substantial change of circumstances since the final Orders were made, and whether the nature of that circumstance was such as to allow further litigation in respect of the children. The Court considered the principles in Rice & Asplund (1979) FLC 90-725 and its progeny, which establish that no parenting orders, intended to be final, will be revised unless an applicant seeking to vary the orders can demonstrate a material change of circumstance to warrant the revision. The Court was satisfied that the father's Application did not meet the required standards and test under the principles and should be dismissed. The Court further found that the mother's Response also fell foul of those principles and was dismissed.

The Court ordered that the father's Initiating Application filed on 21 April 2022 and amended on 24 June 2022 be dismissed. The Court further ordered that the mother's Response filed on 25 August 2022 and amended on 11 October 2022 be dismissed. The Court noted that the father's failure to appear at the hearing without explanation caused it to proceed in his absence, but that there was no prospect on the evidence currently before the Court that the principles in Rice & Asplund had been overcome in this case. The Court's order is final.

Orders