HADEN & NESTOR - [2020] FCCA 638

FEDERAL CIRCUIT COURT OF AUSTRALIA

HADEN & NESTOR

[2020] FCCA 638

Catchwords:
FAMILY LAW – Final hearing – Rice & Asplund threshold issue – intractable parental conflict – whether children at risk if exposed to further litigation – likelihood of orders being varied in a significant way.

Legislation:

Family Law Act 1975 (Cth), s.65DAC

Cases cited:

Marsden & Winch [2009] FamCAFC 152
McEnearney & McEnearney (1980) FLC 90-866
Miller & Harrington (2008) FLC 93-383
Poisat & Poisat [2014] FamCAFC 128
Rice & Asplund (1979) FLC 90-725
SPS & PLS [2008] FamCAFC 16

Applicant:

MR HADEN

Respondent:

MS NESTOR

File Number:

SYC 2985 of 2012

Judgment of:

Judge M Neville

Hearing date:

5 March 2020

Date of Last Submission:

5 March 2020

Delivered at:

Sydney

Delivered on:

24 March 2020

REPRESENTATION

Counsel for the Applicant:

Mr Sansom SC

Solicitors for the Applicant:

Abrams Turner Whelan Family Lawyers

Counsel for the Respondent:

Mr Cummings SC

Solicitors for the Respondent:

Barkus Doolan

ORDERS

The mother’s application be dismissed.
Any application for costs is to be made within 28 days.
The matter is, otherwise, removed from the active pending cases list.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 2985 of 2012

MR HADEN

Applicant

And

MS NESTOR

Respondent

REASONS FOR JUDGMENT

Ms Nestor (the mother) and Mr Haden (the father) are the parents of B, presently aged 12 years and C, presently aged 10 years.
On 30 May 2014, they entered into final parenting orders, by consent.
The mother now seeks to vary those parenting orders. The father resists the variation sought and invokes the principle in Rice & Asplund. The matter was listed on 5 March 2020 for hearing on that threshold issue.

Background

The parents were married in 2006. B was born in 2007 and C, in 2009.
The parents separated on a final basis in August 2010 (on the mother’s case) or in January 2011 (on the father’s case).
On 23 May 2012, the mother commenced proceedings in the Family Court of Australia. In the course of those proceedings, a family report was prepared by Ms D on 29 August 2013. The children attended upon Ms D as part of her assessment process.
The final hearing of the application was listed to commence on 3 June 2014 however following mediation, the matter resolved by the making of final orders, by consent on 30 May 2014 (“the 2014 orders”).
Relevantly, the 2014 orders provided:
a)The parties have equal shared parental responsibility for the children.
b)The children to live with the father 5 nights each fortnight and otherwise to live with the mother.
c)The children spend time with each parent during school holiday periods and on special occasions.
The provisions of the 2014 orders dealing with school holiday periods were expressed as follows:
11. That the children live with the father as follows:
…
11.5…

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 HADEN & NESTOR

Details

AGLC: HADEN & NESTOR [2020] FCCA 638
Case: [2020] FCCA 638
Decision Date: 24 March 2020

CaseChat Overview and Summary

In *Haden & Nestor*, heard by Judge M Neville, the mother sought to reopen final parenting orders. The core of the dispute concerned whether the children were at risk of harm due to exposure to further intractable parental conflict and the likelihood of any new orders being significantly varied from the existing ones.

The court was required to determine whether the threshold established in *Rice & Asplund* had been met. This involved assessing whether the level of parental conflict was so intractable that it placed the children at risk, and whether there was a real prospect that any new orders would differ substantially from the existing final orders.

Judge M Neville dismissed the mother's application, finding that the threshold for reopening the final orders was not met. The court's reasoning focused on the absence of evidence demonstrating that the children were at risk of harm from continued litigation or that any proposed new orders would represent a significant departure from the existing arrangements. The court noted that the existing orders were final and that the threshold for disturbing such orders was high.

Consequently, the mother's application was dismissed. Any application for costs was to be made within 28 days, and the matter was otherwise removed from the active pending cases list.

Orders

Orders of the court

The mother’s application be dismissed.

Any application for costs is to be made within 28 days.

The matter is, otherwise, removed from the active pending cases list.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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