FAMILY LAW – Parenting – Application to re-open proceedings following final consent Orders being made in 2018 – Consideration of Rice v Asplund principles – no sufficient change in circumstances to qualify re-opening proceedings – re-commencing litigation not in the best interests of the children – Application dismissed with an Order for costs in favour of the Father – Potential conflict of interest.
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS HALLORAN Applicant
AND:
MR KEATS Respondent
order made by:
JUDGE W J NEVILLE
DATE OF ORDER:
15 december 2022
ON A FINAL BASIS, THE COURT ORDERS THAT:
1.The Application filed 16 August 2022 be dismissed.
2.By no later than 14 February 2023, the Mother pay the costs of the Father’s Counsel.
3.By no later than 28 February 2023, the Mother pay two-thirds of the Father’s solicitor’s costs.
4.If there is any dispute regarding Order 3, by no later than 31 January 2023, the parties are to file submissions of no more than 1 page in length.
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…
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.
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Details
AGLC
Keats & Halloran [2022] FedCFamC2F 1724
Case
[2022] FedCFamC2F 1724
Decision Date
CaseChat Overview and Summary
The case of Keats & Halloran involved a mother seeking to re-open final parenting orders made in 2018. The mother sought unsupervised time with her three children and for them to live with her. The father resisted the application, arguing it should be dismissed on various grounds, including the mother's failure to provide relevant expert evidence. The mother filed an expert report from a psychiatrist, but the father argued it did not address the key issues that gave rise to the 2018 orders. The court found the mother's application was deficient in evidence and flawed in various respects. The expert report did not address the previous diagnoses and treatment recommendations made by other experts. The court dismissed the mother's application and ordered her to pay the father's legal costs. The court noted that the mother's application was almost certainly doomed to fail when it was filed, due to the deficiencies in her evidence and the failure to address key issues. The court also found that the mother's proposed change of residence for the children would not be in their best interests.