Haskos & Haskos - [2022] FedCFamC2F 1184

Federal Circuit and Family Court of Australia
(DIVISION 2)
Haskos & Haskos [2022] FedCFamC2F 1184

File number(s): SYC 1951 of 2022

Judgment of: JUDGE BECKHOUSE

Date of judgment: 7 September 2022

Catchwords: FAMILY LAW – PARENTING – Rice & Asplund – Where the mother seeks to vary parenting orders made by consent in 2018 – No material change in circumstances – Impact of litigation on the child – Application dismissed

Legislation: Family Law Act 1975 (Cth) ss 65D(2), 69ZN(3), 69ZN(4)

Cases cited:
Lund & Lund [2018] FamCAFC 112

Marsden & Winch (2009) 42 Fam LR 1

Poisat & Poisat (2014) FLC 93-597

Searson & Searson (2017) FLC 93-788

Division: Division 2 Family Law

Number of paragraphs: 72

Date of hearing: 4 August 2022

Place: Sydney

Counsel for the Applicant: Ms Cantrall

Solicitor for the Applicant: Godden Lawyers

Counsel for the Respondent: Mr Cummings SC

Solicitor for the Respondent: Nicole Evans Lawyers
ORDERS

SYC 1951 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS HASKOS

Applicant

AND:
MR HASKOS

Respondent

order made by:

JUDGE BECKHOUSE

DATE OF ORDER:

7 September 2022

THE COURT ORDERS THAT:
1.The Initiating Application filed by the Applicant Mother on 24 March 2022 is dismissed.
2.The Father’s costs are reserved.
3.Within 14 days of the date of these Orders, the Father shall file and serve any written submissions in support of an application for costs.
4.Upon service of any written submissions for costs, the Mother shall file and serve any written submissions in response.

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 a pseudonym Haskos & Haskos has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Introduction

The applicant mother Ms Haskos (“the mother”) seeks to vary final parenting orders that were made by consent on 16 November 2018 in relation to her son X, born in 2010 (“X”).
The respondent father Mr Haskos (“the father”) asks for the application to be dismissed based on the principles in Rice & Asplund (1979) FLC 90-725 (“Rice & Asplund”).
This judgment deals with the threshold Rice & Asplund issue of whether there has been a material change of circumstances that would, in the child’s best interests, warrant further litigation.
Background
The father was born in 1977 and is currently 45 years old.
The mother…

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 Haskos & Haskos

Details

AGLC: Haskos & Haskos [2022] FedCFamC2F 1184
Case: [2022] FedCFamC2F 1184
Decision Date

CaseChat Overview and Summary

In the case of Haskos & Haskos, the mother sought to vary the existing parenting orders made by consent in 2018. The father opposed the application and sought dismissal. The court was required to determine whether there had been a material change in circumstances that would warrant further litigation. The court considered the evidence provided by both parties and the impact that further litigation would have on the child. The mother argued that there had been significant changes in the child's circumstances, including his diagnosis with ADHD and his expressed wish to spend more time with her. However, the court found that these changes did not amount to a material change in circumstances that would warrant further litigation. The court also found that further litigation would be onerous and disruptive for the child. Therefore, the court dismissed the mother's application to vary the existing parenting orders.

The court's reasoning was based on the principles established in Rice & Asplund, which require that a final parenting order will not be revised unless there has been a material change in circumstances. The court found that the mother had not satisfied the criteria imposed by Rice & Asplund to permit her prosecution of these fresh proceedings. The court also considered the impact that further litigation would have on the child, including the potential for the child to be exposed to the parental conflict. The court found that further litigation would not be in the best interests of the child and therefore dismissed the mother's application. The current Consent Orders of 16 November 2018 shall remain in place. The court reserved the question of costs.

Orders