Henley and Henley - [2018] FamCA 694

FAMILY COURT OF AUSTRALIA

HENLEY & HENLEY

[2018] FamCA 694

FAMILY LAW – CHILDREN – Application to re-open final parenting orders – Rice and Asplund principles – Where the father applied to have the matter re-opened – Whether the issue of residence should be re-litigated – Where the application to re-open the case was refused on the basis that the father could not establish any significant change of circumstances or a previously undisclosed fact.

Reid and Lynch (2010) FLC 93-448
Rice and Asplund (1979) FLC 90-725

APPLICANT:

Mr Henley

RESPONDENT:

Ms Henley

FILE NUMBER:

ADC

1876

2014

DATE DELIVERED:

30 August 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Adelaide

JUDGMENT OF:

Stevenson J

HEARING DATE:

25-26 July 2018

REPRESENTATION

THE APPLICANT:

Mr Henley

COUNSEL FOR THE RESPONDENT:

Mr Roberts

SOLICITOR FOR THE RESPONDENT:

Harry Alevizos

Orders

The Court is satisfied and finds that the father has failed to demonstrate sufficient changed circumstances, or a previously undisclosed fact, such as to warrant a

re-opening of the final parenting orders made by Berman J on 19 August 2018 save as to the limited remitter ordered by the Full Court on 20 July 2017.
The proceedings are referred to Austin J for further case management.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Henley & Henley has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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 r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: ADC 1876 of 2014

Mr Henley

Applicant

And

Ms Henley

Respondent

REASONS FOR JUDGMENT

The proceedings

Mr Henley and Ms Henley are the parents of N, ("the child") who was born in 2010 and is presently eight years of age. On 19 August 2016 Berman J made parenting orders following a four day trial. These Orders included the following:
1.That the parties shall have equal shared parental responsibility for N born …2010 ("the child").
2.That the child shall live with the mother.
3.That the child shall spend time with the father as follows:-
(a)From the conclusion of school on Thursday or 4 pm if the child is not at school to the commencement of school on the following Monday or 10 am if the child is not at school and each alternate weekend thereafter commencing 26 August 2016.
(b)For one half of each end of term and end of year school holiday periods as agreed between the parties but in default of agreement for the first half of each school holiday period to be calculated by counting the last day of the school term as representing the first day of…

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 Henley and Henley

Details

AGLC: Henley and Henley [2018] FamCA 694
Case: [2018] FamCA 694
Decision Date: 30 August 2018

CaseChat Overview and Summary

In *Henley and Henley*, Stevenson J considered an application by the father to re-open final parenting orders made on 19 August 2018. The father sought to vary these orders, which had been previously made by Berman J.

The central legal issue before Stevenson J was whether the father had established sufficient changed circumstances, or a previously undisclosed fact, to justify re-opening the final parenting orders. This required the court to assess the evidence presented by the father against the threshold for re-opening final orders in family law proceedings.

Stevenson J found that the father had failed to demonstrate the necessary changed circumstances or previously undisclosed fact. Consequently, the court was not satisfied that it should re-open the final parenting orders, except to the limited extent previously ordered by the Full Court on 20 July 2017. The proceedings were then referred to Austin J for further case management.

Orders

Orders of the court

The Court is satisfied and finds that the father has failed to demonstrate sufficient changed circumstances, or a previously undisclosed fact, such as to warrant a

re-opening of the final parenting orders made by Berman J on 19 August 2018 save as to the limited remitter ordered by the Full Court on 20 July 2017.

The proceedings are referred to Austin J for further case management.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.