Garrety & Steyn (No. 2)

Case [2021] FamCA 277

FAMILY COURT OF AUSTRALIA

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

File number(s): NCC 802 of 2013
Judgment of: AUSTIN J
Date of judgment: 4 May 2021
Catchwords: FAMILY LAW – CHILDREN – Rice & Asplund issue – Where final parenting orders were made in December 2014 requiring the children to live with the father – Where final parenting orders were made again March 2019 reversing the children’s residence – Where the father seeks to re-contest parenting orders again on the basis of changed circumstances – Where the mother denied any material change of circumstance – Where there has been continued involvement of police, ambulance officers and emergency doctors in relation to the children’s welfare – Concluded there has been a material change of circumstances – Where the mother applied to transfer the proceedings from Newcastle to Parramatta – Order made.
Legislation: Family Law Act 1975 (Cth) Pt VII
Cases cited:

Garrety & Steyn [2021] FamCA 67

Marsden v Winch (2009) 42 Fam LR 1

Rice & Asplund (1979) FLC 90-725

Searson & Searson (2017) FLC 93-788

SPS & PLS (2008) FLC 93-363

Walden & Cooper [2020] FamCA 104
Number of paragraphs: 42
Date of hearing: 3 May 2021
Place: Newcastle
Counsel for the Applicant: Mr Sansom SC
Solicitor for the Applicant: Gillard Family Lawyers
Counsel for the Respondent: Mr Coleman SC
Solicitor for the Respondent: Bainbridge Legal

ORDERS

NCC 802 of 2013
BETWEEN:

MR GARRETY

Applicant
AND:

MS STEYN

Respondent

ORDER MADE BY:

AUSTIN J

DATE OF ORDER:

4 MAY 2021

THE COURT ORDERS THAT:

1.The substantive proceedings between the parties for relief under Part VII of the Family Law Act, commenced by the Initiating Application filed by the father on 11 March 2021, are transferred to the Parramatta Registry of the Family Court of Australia.

2.Otherwise:

(a)The application for interim relief contained within the Initiating Application filed on 11 March 2021 is dismissed;

(b)The application for interim and procedural relief contained within the Response filed on 23 April 2021 is dismissed; and

(c)Any and all other outstanding applications for interim relief are 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 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 Garrety & Steyn has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

  1. On 11 March 2021, the father commenced fresh proceedings against the mother in respect of their two children under Part VII of the Family Law Act 1975 (Cth) (“the Act”). It should not pass unremarked that this is the third round of litigation between them.

  2. Final orders were first made in December…

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Details
AGLC
Garrety & Steyn (No. 2) [2021] FamCA 277
Case
[2021] FamCA 277
Decision Date

CaseChat Overview and Summary

The parties to this proceeding are Mr Garrety (the applicant father) and Ms Steyn (the respondent mother). The dispute concerns final parenting orders made in December 2014 and subsequently varied in March 2019. The father sought to re-contest the parenting orders, alleging changed circumstances, while the mother denied any material change. The matter came before Austin J of the Family Court of Australia.

The primary legal issue before the court was whether there had been a material change of circumstances since the last final parenting orders were made in March 2019, which would warrant a revision of those orders. This required the court to consider the application of the *Rice & Asplund* principle, which dictates that final parenting orders will not be revised unless a material change in circumstances can be demonstrated. The court also had to determine whether to transfer the proceedings from the Newcastle Registry to the Parramatta Registry, as requested by the mother.

Austin J applied the principles from *Walden & Cooper*, which summarise the *Rice & Asplund* guideline. The court acknowledged that while no parenting order is immutable, revision requires proof of a material change in circumstances. The court noted that this determination could occur at a preliminary inquiry or a comprehensive hearing, and that procedural fairness must be observed. In this instance, the mother sought dismissal at a preliminary stage, requiring the court to accept the father's evidence of changed circumstances at its highest. The court found that there had been a material change of circumstances, noting the continued involvement of police, ambulance officers, and emergency doctors in relation to the children's welfare.

The court ordered that the substantive proceedings be transferred to the Parramatta Registry. The application for interim relief by the father, and the applications for interim and procedural relief by the mother, were dismissed. Any other outstanding applications for interim relief were also dismissed.

Orders

Orders of the court

NCC 802 of 2013

BETWEEN:

MR GARRETY

Applicant

AND:

MS STEYN

Respondent

ORDER MADE BY:

AUSTIN J

DATE OF ORDER:

4 MAY 2021

THE COURT ORDERS THAT:

1. The substantive proceedings between the parties for relief under Part VII of the Family Law Act, commenced by the Initiating Application filed by the father on 11 March 2021, are transferred to the Parramatta Registry of the Family Court of Australia.

2. Otherwise:

(a) The application for interim relief contained within the Initiating Application filed on 11 March 2021 is dismissed;

(b) The application for interim and procedural relief contained within the Response filed on 23 April 2021 is dismissed; and

(c) Any and all other outstanding applications for interim relief are 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 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

The mother abandoned her application for ancillary procedural orders.Evidence The mother relied upon:(a)her affidavit filed on 23 April 2021; and(b)exhibits marked M1 to M5 inclusive. The father relied upon:(a)his affidavit filed on 9 March 2021;(b)the affidavit of his partner, Ms F, filed on 26 April 2021; and(c)exhibits marked F1 to F3 inclusive.Rice & Asplund principle I recite and apply the following principles as summarised in Walden & Cooper [2020] FamCA 104:9.The infinite vicissitudes of life mean no parenting order can ever be truly immutable, which reality is recognised in the Act (s 65D(2)). However, it is well established 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 (Rice & Asplund (1979) FLC 90-725 at 78,905 (“Rice & Asplund”); SPS & PLS (2008) FLC 93-363 at [1] (“SPS & PLS”); Marsden v Winch (2009) 42 Fam LR 1 at [48] (“Marsden v Winch”); Langmeil & Grange [2013] FamCAFC 31 at [43]-[48]; Poisat & Poisat (2014) FLC 93-597 (“Poisat & Poisat”)).10.The question of whether there has been a change in circumstances of sufficient magnitude to warrant revision of existing orders may be determined either by way of preliminary enquiry or comprehensive hearing (Poisat & Poisat at [39]-[41]; Marsden v Winch at [46]-[47]; Miller & Harrington (2008) FLC 93-383 at [80]-[83] (“Miller & Harrington”)) but, at whichever stage the determination is made, the application of the Rice & Asplund guideline is merely a manifestation of the paramountcy principle (Poisat & Poisat at [18], [19], [40], [42]; Marsden v Winch at [55]; Miller & Harrington at [101]) and procedural fairness should always be observed (Marsden v Winch at [56]). In this instance, the mother moved to dismiss the father’s application by way of preliminary hearing based on evidence which is, as yet, untested. In doing so, the mother accepted she must accept the father’s evidence of changed circumstances at its highest (SPS & PLS (2008) FLC 93-363 at [81]; Searson & Searson (2017) FLC 93-788 at [11]). If the father’s evidence demonstrates a material change in circumstances, I must then consider whether the asserted need for variation of the existing orders outweighs the potential detriment to the children which the fresh litigation could cause (Marsden v Winch (2009) 42 Fam LR 1 at [50]). When Cleary J determined the last phase of litigation in March 2019, her Honour was conscious that the mother, father, and Ms F had all played a role in the children’s emotional turmoil and the deterioration of the children’s relationships with the mother. Her Honour said:127.The mother blamed the father for the breakdown of her relationship with the children. Although each of the parents have played a role I do not consider that it was exclusively one of the parents but rather a combination of fraught changeovers, resentment and bitterness between all three adults and children under pressure. It must be said that the father had legal authority and chose to exercise it the way he did.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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