Hadlow & Davis - [2022] FedCFamC1F 641

Federal Circuit and Family Court of Australia
(Division 1)
Hadlow & Davis [2022] FedCFamC1F 641

File number(s): ADC 3076 of 2017

Judgment of: BERMAN J

Date of judgment: 30 August 2022

Catchwords: FAMILY LAW – Children – where final parenting orders were made in 2020, following a trial – where the father seeks orders to set aside or vary the final orders – where the mother seeks orders to dismiss the father’s application – consideration of the rule in Rice & Asplund – Consideration of whether the evidence presented represents a material change of substance – where there is insufficient evidence to support an extension of the father’s time during term time – where there is merit to the father’s application for an extension of Christmas school holiday time

Legislation: Family Law Act 1975 (Cth) ss 45A(1), 45A(2), 45A(3), 45A(4), 69ZN, 117(2A)(g)

Cases cited:
Carriel & Lendrum (2015) FLC 93-640

Freeman & Freeman (1987) FLC 91-857

Hadaway & Beckham [2019] FamCAFC 137

Marsden & Winch (2009) 42 Fam LR 1

McEnearney & McEnearney (1980) FLC 90-866

Rice & Asplund (1979) FLC 90-725

Searson & Searson (2017) FLC 93-788

SPS & PLS (2008) FLC 93-363

Division: Division 1 First Instance

Number of paragraphs: 56

Date of hearing: 3 August 2022

Place: Adelaide

Counsel for the Applicant: Mr Robinson

Solicitor for the Applicant: Adelaide Family Lawyers

Counsel for the Respondent: Mr Childs

Solicitor for the Respondent: VP Lawyers
ORDERS

ADC 3076 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR HADLOW

Applicant

AND:
MS DAVIS

Respondent

order made by:

BERMAN J

DATE OF ORDER:

30 August 2022

1.THE COURT ORDER, 6 and 7 of the final orders sought 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 Hadlow & Davis is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BERMAN J
INTRODUCTION

By Initiating Application filed 3 May 2022, Mr Hadlow (“the father”) seeks to discharge final orders made 19 March 2020, save and except for paragraphs 3(e), 3(f), 3(g), 5, 6, 7, 8, 9, 10, 11 and 12 noting that usual fortnightly time spending shall be suspended for all special occasion time spending.
Paragraphs 1 to 3(d) inclusive of the final orders made 19 March 2020, concern parental responsibility and the extent to which Z born…

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 Hadlow & Davis

Details

AGLC: Hadlow & Davis [2022] FedCFamC1F 641
Case: [2022] FedCFamC1F 641
Decision Date

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia (Division 1) was asked to consider an application by the father, Mr Hadlow, to vary or set aside final parenting orders made in 2020, and an application by the mother, Ms Davis, to dismiss the father's application. The orders in question concern the time that the child, Z, born in 2016, spends with the father. The litigation between the parties has been relentless since commenced in 2017, and has continued to the present day.

The court had to consider the legal issues around whether the father's application met the threshold required to justify further litigation, and whether there had been a material change in circumstances that would justify a rehearing. The court had to balance the need for stability for the child against the father's application for more time with the child.

The court found that there was insufficient evidence to support an extension of the father's time during term time. However, the court found that there was merit to the father's application for an extension of Christmas school holiday time. The court dismissed all other orders sought by the father.

The court ordered that 6 and 7 of the final orders sought be dismissed. The form of the order is subject to the entry in the Court’s records. 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).

Orders