Judd & Pryor (No.2) - [2020] FamCA 934

FAMILY COURT OF AUSTRALIA

JUDD & PRYOR (NO. 2)

[2020] FamCA 934

FAMILY LAW – CHILDREN – Rice & Asplund threshold dispute – Where final parenting orders were made in September 2016 – Where the orders expressly provided for the child to spend no time at all with the father – Where the father’s application to commence fresh proceedings in 2018 was dismissed – Where the father again seeks to re-contest the final parenting orders on the basis of changed circumstances – Where the mother sought immediate dismissal of the proceedings – Where the child is 15 years of age – Where no evidence the child has voluntarily tried to re-establish contact with the father over the past five years – Where the evidence adduced by the father tends to demonstrate the correctness of previous findings and the absence of any change in circumstances – Where there is no evidentiary basis to conclude the parenting dispute over the child should be reopened – Ordered the father’s application be dismissed

Family Law Act 1975 (Cth) Pt VII, ss 45A, 65D

Judd & Pryor [2020] FamCA 782
Langmeil & Grange [2013] FamCAFC 31
Marsden v Winch (2009) 42 Fam LR 1
Miller & Harrington (2008) FLC 93-383
Poisat & Poisat (2014) FLC 93-597
Pryor & Judd [2016] FamCA 820
Rice & Asplund (1979) FLC 90-725
Searson & Searson (2017) FLC 93-788
Spencer & Commonwealth of Australia (2010) 241 CLR 118
SPS & PLS (2008) FLC 93-363

APPLICANT:

Mr Judd

RESPONDENT:

Ms Pryor

FILE NUMBER:

NCC

3004

2014

DATE DELIVERED:

26 October 2020

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Austin J

HEARING DATE:

26 October 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Not Applicable

SOLICITOR FOR THE APPLICANT:

Not Applicable

COUNSEL FOR THE RESPONDENT:

Not Applicable

SOLICITOR FOR THE RESPONDENT:

Not Applicable

Orders

The Initiating Application filed on 6 April 2020 is dismissed.
The Amended Response filed on 26 July 2020 is dismissed.
No order as to costs.

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 Judd & Pryor 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 NEWCASTLE

FILE NUMBER: NCC 3004 of 2014

Mr Judd

Applicant

And

Ms Pryor

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Introduction

In September 2016, Cleary J made final parenting orders between the applicant father and the respondent mother under Part VII of the Family Law Act 1975 (Cth) (“the Act”) in respect of their only child; a son who is now aged 15 years (Pryor &…

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 Judd & Pryor (No.2)

Details

AGLC: Judd & Pryor (No.2) [2020] FamCA 934
Case: [2020] FamCA 934
Decision Date: 26 October 2020

CaseChat Overview and Summary

In *Judd & Pryor (No.2)*, Austin J of the Family Court of Australia considered an application by the father to re-contest final parenting orders made in September 2016. These orders stipulated that the child, who is now 15 years of age, would spend no time with the father. The mother sought the immediate dismissal of the father's application, arguing that there had been no material change in circumstances to warrant reopening the final orders.

The central legal issue before the court was whether the father had demonstrated a material change in circumstances sufficient to justify a revision of the existing final parenting orders, applying the principles established in *Rice & Asplund*. This required the court to consider the past circumstances, including the reasons for the original decision and the evidence upon which it was based, the likelihood of the orders being varied significantly, and whether the need for variation outweighed the detriment to the child of fresh litigation.

Austin J reasoned that the evidence adduced by the father tended to confirm the correctness of the previous findings and demonstrated an absence of any change in circumstances. The father's continued disrespectful attitude towards the mother and his admission of being a "hothead and opinionated" indicated that assertive aggression remained a feature of his character. Furthermore, the child, now 15, had not voluntarily sought contact with the father since the 2016 orders, which were intended to remain in effect until the end of his minority.

Consequently, the court found no evidentiary basis to conclude that the parenting dispute should be reopened. The father's Initiating Application and the mother's Amended Response were dismissed, with no order as to costs.

Orders

Orders of the court

The Initiating Application filed on 6 April 2020 is dismissed.

The Amended Response filed on 26 July 2020 is dismissed.

No order as to costs.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In the circumstances, Cleary J concluded her reasons for judgment with this observation (Pryor & Judd at [146]):For all these reasons, orders will be made as sought by the mother and the Independent Children's Lawyer. In less than seven years time the child will be an adult and can make his own decisions about restoring a relationship with his father if he chooses to do so. (Emphasis added) The child is now 15 years of age. He has not seen or spoken with the father since Cleary J made the last orders in September 2016, or for about a year before that. Despite his increased age and maturity, the child has not voluntarily sought out the father. Cleary J intended the orders would extend until the end of the child’s minority, which is about 30 months hence. I will first consider application of the Rice & Asplund guideline. The infinite vicissitudes of life mean no parenting order can ever be truly immutable, which reality is recognised in the Act (s 65D(2)). However, it is well established that no parenting orders, intended to be final, will be revised unless an applicant seeking to vary the orders can demonstrate a material change of circumstance to warrant the revision (Rice & Asplund; SPS & PLS (2008) FLC 93-363 at [1]; Marsden v Winch (2009) 42 Fam LR 1 (“Marsden v Winch”) at [48]; Langmeil & Grange [2013] FamCAFC 31 at [43]-[48]; Poisat & Poisat (2014) FLC 93-597 (“Poisat & Poisat”)). The question of whether there has been a change in circumstances of sufficient magnitude to warrant revision of existing orders may be determined either by way of preliminary enquiry or comprehensive hearing (Poisat & Poisat at [39]-[41]; Marsden v Winch at [46]-[47]; Miller & Harrington (2008) FLC 93-383 (“Miller & Harrington”) at [80]-[83]) but, at whichever stage the determination is made, the application of the Rice & Asplund guideline is merely a manifestation of the paramountcy principle (Poisat & Poisat at [18], [19], [40], [42]; Marsden v Winch at [55]; Miller & Harrington at [101]) and procedural fairness should always be observed (Marsden v Winch at [56]). In order to determine the existence and materiality of the asserted change in circumstances, consideration should be given to (Marsden v Winch at [50]):a)the past circumstances, including the reasons for the original decision and the evidence upon which it was based; b)whether there is a likelihood of the orders being varied in a significant way as a result of a new hearing; andc)if there is such a likelihood, whether the asserted need for variation of the orders outweighs the potential detriment to the child or children which the fresh litigation will cause. The evidence adduced by the father tends to demonstrate the correctness of Cleary J’s findings and the absence of any change in circumstances since her Honour’s decision. The father still disrespects the mother and “would not piss on her if she was on fire”. He still considers her a “stuck up little cow”. He admits he can be “a hothead and opinionated”, so assertive aggression remains a feature of his character.

Ratio Decidendi

Legal Principle Established

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