Katten & Katten - [2022] FedCFamC2F 187

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Katten & Katten [2022] FedCFamC2F 187

File number(s): MLC 2246 of 2019

Judgment of: JUDGE MCNAB

Date of judgment: 23 February 2022

Catchwords: FAMILY LAW – application by grandmother for enforcement of spend time orders with grandchild – orders not followed by mother – whether it is in the best interests of the children to enforce prior orders or make fresh orders discharging final parenting orders – rule in Rice & Asplund – leave granted for the mother’s application to proceed for final parenting orders to be discharged.

Legislation: Family Law Act 1975, (Cth) s 68L (2).

Cases cited:
Aldridge & Keaton (2009) FLC 93-421

Bonner & Chandler [2021] FedCFamC1A 81

CDJ v VAJ (1998) 197 CLR 172

Church & Overton & Anor [2008] FamCA 953

Maldera v Orbel (2014) FLC 93-602

Marsden & Winch [2009] FamCAFC 152

Reid & Lynch [2010] FAMCAFC 184

Rice & Asplund [1978] 6 Fam LR 570

SPS & PLS [2008] FamCAFC 16

Valentine & Lacerra & Anor (2013) FLC 93-539

Watson & Watson [2018] FCCA 1791

Division: Division 2 General Federal Law

Number of paragraphs: 81

Date of last submission/s: 9 November 2021

Date of hearing: 11 November 2021

Place: Melbourne

Counsel for the Applicant: Mr T Byrne

Solicitor for the Applicant: Marcou and Associates Pty Ltd

Solicitor for the Respondents: Hartleys Lawyers
ORDERS

MLC 2246 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS KATTEN

Applicant

AND:
MS KATTEN

First Respondent

MR HANSEN

Second Respondent

ORDER MADE BY:

JUDGE MCNAB

DATE OF ORDER:

23 FEBRUARY 2022

THE COURT ORDERS THAT:
1.The Mother have leave to proceed to seek to obtain the orders set out in her amended application filed 16 April 2021.

Trial date
2.These proceedings are listed for final hearing before his Honour Judge McNab at 11.00 am on 15 March 2022.

Hearing fees
3.The party responsible for the payment of any fee including a setting down or hearing fee pay or cause to be paid such of the fees as shall be payable by that party in accordance with, and within the time specified in the Family Law (Fees) Regulation 2012 (Cth).
4.The Applicant and the Respondent must pay the setting down and hearing fees in equal amounts (or seek an exemption) not later than 4.00 pm on 14 days prior to hearing Regulation 2.03 of the Family Law (Fees) Regulation 2012 (Cth).

Material to be filed
5.Not later than 4.00 pm on 3 March 2022 the parties are to file and serve one trial affidavit and one affidavit of each witness including expert witnesses they intend to rely upon at trial, such affidavits to comply with Part 8.3 Federal Circuit and Family Court of Australia (Family Law) Rules 2021
6.Except as already provided by these orders, the parties will not be permitted to file any further affidavits and may not rely upon any past affidavits at the final hearing without the leave of the…

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 Katten & Katten

Details

AGLC: Katten & Katten [2022] FedCFamC2F 187
Case: [2022] FedCFamC2F 187
Decision Date

CaseChat Overview and Summary

This case concerned an application made by the maternal grandmother (the Applicant) to enforce spend time orders with her grandson, X, born in 2014. The child’s parents had separated, and the child lived with his mother, the first respondent (the Mother). The child had another younger sibling, Y, born in 2020, who was not the subject of the application. The final parenting orders made in 2019 required the Applicant to spend time with X and provided for changeover to occur at a nominated contact service. The Mother opposed enforcement of the orders and sought to have them discharged. The Mother also sought orders for the child to spend time with the Applicant only if certain conditions were met, such as the completion of anger management and family violence counselling courses. The Mother opposed the application on the basis that the orders should be discharged, or if not discharged, that the orders should be varied to provide for the child to spend time with the Applicant under supervision and with certain conditions being met first. The Court was required to decide whether it was appropriate to allow the Mother’s application to proceed for the Final Parenting Orders to be discharged having regard to the rule in Rice & Asplund. The Court found that it was appropriate for the Mother’s application to proceed for the Final Parenting Orders to be discharged. The Court found that the evidence placed before it raised serious questions as to whether enforcing the Final Parenting Orders or making new orders providing for the child to spend time with the Applicant would benefit the child. The Court found that the Mother had placed sufficient evidence before the Court of a change of circumstances to warrant the matter proceeding to determine the question as to whether the orders that she sought discharging the Final Parenting Orders should be made. The Court found that the Mother had provided evidence that the relationship between her and the Applicant had broken down further since the Final Parenting Orders were made. The Court found that there was a serious question as to whether enforcing the Final Parenting Orders or making new ones involving the child spending time with the Applicant would benefit the child. The Court found that if the Applicant persisted with seeking to enforce the Final Parenting Orders there was a serious question as to whether the risk of harm to the child as a result of ongoing litigation outweighed the benefits to the child seeing the Applicant. The Court also found that a serious question arose that given that the parents of the child were now separated, the time that the Father spent with the child would be affected by orders requiring that the child spend time with the Applicant. This may be said to impact on the quality of the relationship between the Father and the child and was a consideration as to whether the Final Parenting Orders were in the best interests of the child. The Court also found that there was a serious question as to whether enforcing the Final Parenting Orders or making new ones involving the child spending time with the Applicant would benefit the child. The Court found that there was sufficient evidence to make a submission that the disruption and cost to the Mother and the child was likely to be significant if that was to happen as the enforcement of the orders may impact on the Mother’s capacity to parent. The Court found that there was a sufficient change in circumstances to warrant that the application on the part of the Mother for the discharge of those orders proceed.

Orders