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Kenworth & Kenworth

Kenworth & Kenworth

Case [2023] FedCFamC2F 132 22 February 2023

Rule in Rice & Asplund

Family Law

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kenworth & Kenworth [2023] FedCFamC2F 132

File number(s): CAC 2459 of 2018

Judgment of: JUDGE W J NEVILLE

Date of judgment: 22 February 2023

Catchwords: FAMILY LAW – Parenting – where the Father has consistently failed to engage in the proceedings – where the Father has sought to re-open proceeding on multiple occasions – where final orders were made that the children live with the Mother and spend time with the Father as agreed between the parties – application dismissed – indemnity costs in favour of the Mother and Independent Children’s Lawyer.

Legislation:
Family Law Act 1975 (Cth) ss.64B, 117

Federal Circuit and Family Court of Australia Act 2021 (Cth) s.143(1)

Cases cited:
Carriel v Lendrum (2015) 53 Fam LR 157

Mahoney & Dieter [2020] FamCAFC 88

Marsden v Winch (2010) 42 Fam LR 1

Miller v Harrington (2008) 220 FLR 300; (2009) 39 Fam LR 654

Phillips v Hansford (No.2) (2020) 60 Fam LR 160

Poisat & Poisat (2014) FLC 93-597

Rice & Asplund (1978) 6 Fam LR 570; (1979) FLC ¶90-725

Shan & Prasad (2020) 61 Fam LR 440

SPS & PLS (2008) 217 FLR 164; (2008) FLC ¶93–363; (2009) 39 Fam LR 295

Stephens v Stephens (2011) 44 Fam LR 117

Wrenstead & Eades (2016) FLC-697

Division: Division 2 Family Law

Number of paragraphs: 41

Date of last submission/s: 11 January 2023

Date of hearing: On the papers in Chambers

Place: Canberra

Solicitor for the Applicant Self-represented

Solicitor for the Respondent Andrew Warren Associates

Independent Children’s Lawyer Legal Aid NSW City L Family Law

ORDERS

CAC 2459 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR KENWORTH
Applicant

AND:
MS KENWORTH
Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

JUDGE W J NEVILLE

DATE OF ORDER:

22 feburary 2023

ON A FINAL BASIS, THE COURT ORDERS THAT:
1.Orders 1 and 2 of the Orders dated 29^th November 2022 be discharged.
2.The Application in a Proceeding filed 9^th December 2022 be summarily dismissed pursuant to s143(1) of the Federal Circuit and Family Court of Australia Act 2021.
3.Within 60 days of the date of these Orders, being by 23 April 2023, the Applicant pay the Independent Children’s Lawyers costs fixed in the sum of $3,500.00.
4.Within 90 days of the date of these Orders, being by 23 May 2023, the Applicant pay the Mother’s costs fixed in the sum of $35,000.00.
5.Pursuant to s.62B of the Family Law Act 1975 (Cth), information about the family counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.
6.Pursuant to s.65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet, attached hereto and these particulars are included in these Orders.
7.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.

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Details

AGLC: Kenworth & Kenworth [2023] FedCFamC2F 132
Case: [2023] FedCFamC2F 132
Decision Date

CaseChat Overview and Summary

The matter before the Federal Circuit and Family Court of Australia was a long-running parenting and property dispute between Kenworth and Kenworth. The parenting matter related to three children. The property aspect of the dispute was settled by consent in September 2019. The parenting matter continued due to the Father's non-compliance with procedural and other orders, and his regular non-attendance at court events. The Father's engagement with the litigation had been very "stop-start" with significant periods of non-engagement. The Court was required to decide whether the Father's latest application seeking to amend the parenting arrangements should be summarily dismissed and whether indemnity costs should be awarded to the Mother and the Independent Children's Lawyer. The Court found that the Father's application should be dismissed as it did not provide any relevant evidence of a change in circumstances that would satisfy the rule in Rice & Asplund. The Court also found that the Father's conduct as a litigant had put the Mother and the Independent Children's Lawyer to needless expense and the expenditure of resources. As a result, the Court awarded indemnity costs to the Mother and the Independent Children's Lawyer. The Court ordered that the Father pay the Independent Children's Lawyer's costs of $3,500 within 60 days and the Mother's costs of $35,000 within 90 days. The Court also dismissed all previous orders in relation to costs and discharged the Independent Children's Lawyer.

Orders