Hadaway and Beckham

[2018] FCCA 3681

FEDERAL CIRCUIT COURT OF AUSTRALIA

HADAWAY & BECKHAM [2018] FCCA 3681

Catchwords:
FAMILY LAW – Parenting Orders – Rule in Rice & Asplund – Failure to establish a significant change of circumstance.

Legislation:

Family Law Act 1975

Cases cited:

Rice & Asplund (1979) FLC 90-725
Bennett& Bennett (1991) FLC 92-191
D & Y (1995) FLC 92-581
SPS & PLS [2008] FamCAFC 16, (2008) FLC 93-363
King and Finneran [2001] FamCA 344
Searson & Searson [2017] FamCAFC 119
Marsden & Winch (2009) 42 Fam LR 1
Miller & Harrington (2008) FLC 93-383
Walter & Walter [2016] FamCAFC 56
McEnearney & McEnearney (1980) FLC 90-866

Applicant: MR HADAWAY

Respondent: MS BECKHAM

File Number: BRC 7341 of 2015

Judgment of: Judge Lapthorn

Hearing date: 3 May 2018

Date of Last Submission: 3 May 2018

Delivered at: Brisbane

Delivered on: 14 December 2018

REPRESENTATION

Counsel for the Applicant: Mr Hackett

Solicitors for the Applicant: PPCS Lawyers

Counsel for the Respondent: Dr Brasch QC

Solicitors for the Respondent: Damien Greer Lawyer

ORDERS

1. That the Amended Initiating Application filed 28 March 2018 be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Hadaway & Beckham is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 7341 of 2015

MR HADAWAY

Applicant

And

MS BECKHAM

Respondent

REASONS FOR JUDGMENT

Introduction

1. I am asked to determine an application to set aside final parenting orders made by consent on 11 April 2016 (“the consent orders”) in relation to [X].  [X] was born 2013 and is presently aged 5. 

2. The thrust of the consent orders provide for [X] to live with his mother in Brisbane and spend time with his father at Location A.  The parties have equal shared parental responsibility.  By his Initiating Application filed 9 February 2018 the father now seeks to have those orders set aside.  The mother opposes his application and seeks the application be dismissed. 

3. When the matter came before me on 3 May 2018.  I was asked to make a preliminary determination as whether the father had demonstrated a change of circumstance significant enough to warrant a new hearing in accordance with the decision in Rice & Asplund[1]. 

   [1] (1979) FLC 90-725

4. Throughout this judgment I will refer to the applicant as the father and the respondent as the mother.   I mean no disrespect in doing so. 

Legal Approach

1. A Court is usually reluctant to entertain a fresh application for parenting arrangements because it is rarely in a child’s best interest to have ongoing litigation about his or her care and wellbeing.  The Full Court of the Family Court in Rice & Asplund held:

   The court should not lightly entertain an application to reverse an earlier custody order.  It would need to be satisfied by the Applicant that there was some changed circumstance which would justify such a serious step, some new factor arising, or, at any rate, some factor which was not disclosed at the previous hearing which…