Melton & Domara - [2022] FedCFamC2F 361

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Melton & Domara [2022] FedCFamC2F 361

File number(s): ADC 1244 of 2019

Judgment of: JUDGE DICKSON

Date of judgment: 22 March 2022

Catchwords: FAMILY LAW - Parenting – where the mother makes an application pursuant to the rule in Rice v Asplund to revisit final parenting orders – where final orders were made by consent in July 2020 – where mother was self-represented at that hearing – where mother alleges that she did not understand that final orders were being made on that occasion – where it is not clear on the transcript whether mother had received advice at the time final orders were made - where in the alternative, the mother says that a family violence incident between the parties in August 2021 enlivens the rule in Rice v Asplund – where it is in the best interests of the children to re-open the final orders application on the basis of the family violence incident – where a Family Report is ordered

Legislation: Family Law Act 1975 (Cth) ss 4AB, 60CA, 60CC, 69ZL.

Cases cited:
Marsden & Winch [2009] FamCAFC 125; (2009) 42 Fam LR 1.

Rice v Asplund [1978] FamCA 84, (1979) FLC 90-725, 6 Fam LR 570

SPS & PLS (2008) FLC 93-263

Division: Division 2 Family Law

Number of paragraphs: 66

Date of hearing: 18 March 2022

Place: Adelaide

Solicitor for the Applicant: Mr Wabnitz for Daniel John Lawyers

Solicitor for the Respondent: Mr Fryer for Salisbury Lawyers
ORDERS

ADC 1244 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS DOMARA

Applicant

AND:
MR MELTON

Respondent

ORDER MADE BY:

JUDGE DICKSON

DATE OF ORDER:

22 MARCH 2022

UPON NOTING THAT the proceedings were conducted by telephone
THE COURT ORDERS THAT:
1.The mother’s Amended Response filed on 9 December 2021 shall not be dismissed at this preliminary stage pursuant to the rule in Rice v Asplund.
2.Pursuant to s 62G(2) of the Family Law Act 1975 (Cth), the parties and the children X born in 2014 and Y born in 2017 (‘the children’) attend upon a Court Child Expert (practicing under their appointment as a family consultant), or a Family Consultant appointed under Regulation 7, nominated by the Court Children’s Service (referred to as the Family Consultant) for the purposes of the preparation of a family report, such report to be released by 2 September 2022 and that the family report address:
(a)any views expressed by the child and any matters (such as the child’s maturity or level of understanding) that would affect the weight that the court should place on those views;
(b)the matters set out in ss 60CC, 61DA and 65DAA of the Family Law Act 1975 (Cth);
(c)the impact upon the child/ren and upon his/her relationship with the father if the Court made orders as sought by the mother;
(d)the impact upon the child/ren and upon his/her relationship with the mother if the Court made orders as sought by…

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 Melton & Domara

Details

AGLC: Melton & Domara [2022] FedCFamC2F 361
Case: [2022] FedCFamC2F 361
Decision Date

CaseChat Overview and Summary

The case of Melton and Domara before the Federal Circuit and Family Court of Australia (Division 2) involved an interlocutory application by the mother, Ms Domara, seeking to set aside final parenting orders made by consent on 22 July 2020. The mother argued that she did not understand the finality of the orders and that a family violence incident on 29 August 2021 warranted reconsideration of the parenting arrangements. The legal issues before the court were whether there were grounds to reopen the final parenting orders and whether the incident of family violence justified reconsideration of the orders.

Judge Dickson found that there was insufficient evidence to conclude that the mother did not understand the finality of the orders made on 22 July 2020. However, the court considered the incident of family violence on 29 August 2021, which was captured on CCTV. The court found the incident to be an example of family violence and abuse, which weighed in favour of allowing the mother's application to proceed. The paramount consideration, as outlined in section 60CA of the Family Law Act 1975 (Cth), is the best interests of the children, which include the need to protect them from physical or psychological harm and to have a meaningful relationship with both parents.

The court concluded that it was appropriate for the mother's application to proceed, but it did not support the suite of orders sought by the mother. Instead, the court ordered a family report to be prepared by a Court Child Expert to assess and make recommendations as to orders that might be in the children's best interests. The court then adjourned the proceedings to allow for the family report and a Family Dispute Conference.

In summary, the court allowed the mother's application to proceed based on the incident of family violence and the best interests of the children, but it did not make any immediate changes to the existing parenting orders. Instead, the court ordered a family report and a Family Dispute Conference to further assess the situation and make recommendations for appropriate orders.

Orders