FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Naisby & Naisby [2024] FedCFamC1F 9
File number(s): BRC 12442 of 2022 Judgment of: JARRETT J Date of judgment: 22 January 2024 Catchwords: FAMILY LAW – PARENTING – Application to vary existing parenting orders – Trial of separate issue – Whether applicant’s evidence, taken at its highest, establishes material change of circumstances – Appointment of independent children’s lawyer and provision for family report Legislation: Family Law Act 1975 (Cth) ss 60CA, 60CC(3)(a), 60CC(3)(l), 62G, 68L
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 1.06
Cases cited: Defrey & Radnor [2021] FamCAFC 67
Elmi & Munro (2019) FLC 93-912
Gillam & Gillam [2012] FamCAFC 130
King & Finneran [2001] FamCA 344
Marsden & Winch [2009] FamCAFC 152
Miller & Harrington (2008) FLC 93-383
Rice & Asplund (1979) FLC 90-725
Searson & Searson (2017) FLC 93–788
SPS and PLS (2008) FLC 93-363
Stern & Colli (2022) 65 Fam LR 548
The Marriage of D & Y (1995) FLC 92-581
Division: Division 1 First Instance Number of paragraphs: 33 Date of hearing: 28 September 2023 Place: Brisbane Solicitor for the Applicant: Litigant in person Solicitor for the Respondent: Litigant in person ORDERS
BRC 12442 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR NAISBY
Applicant
AND: MS NAISBY
Respondent
ORDER MADE BY:
JARRETT J
DATE OF ORDER:
22 JANUARY 2024
THE COURT ORDERS THAT:
1.The children CC born 2009 and DD born 2011 be represented in these proceedings and it is requested that Legal Aid Queensland arrange such representation, and that the independent children’s lawyer be at liberty to peruse and/or take copies of all documents filed in these proceedings upon the making of an appointment to do so with the Registrar of the Federal Circuit and Family Court of Australia (Division 1) at Brisbane.
2.The independent children’s lawyer shall have leave to inspect and copy documents produced to the Court under subpoena in these proceedings.
3.Pursuant to s 62G(5) of the Family Law Act 1975 (Cth) the parties and the children CC born 2009 and DD born 2011 attend upon a court child expert (as family consultant) as directed by the Director, Court Children’s Service on a date and time to be advised for the purposes of preparation of a report pursuant to s 62G(2) of the Family Law Act 1975 (Cth).
4.The s 62G(2) report deal with the following matters:
(a)any views expressed by the children and any factors (such as the children’s maturity or level of understanding) that would affect the weight that the Court should place on those wishes;
(b)the matters set out in ss 60CC, 61DA and 65DAA of the Family Law Act 1975 (Cth) and
(c)any other matters that the court child expert considers important to the welfare or best interests of the children.
5.The court child expert be granted leave to inspect documents produced to the Court under subpoena in these proceedings.
6.The matter be otherwise adjourned for case…
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- Naisby & Naisby [2024] FedCFamC1F 9
- Case
- [2024] FedCFamC1F 9
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the applicant's evidence, when considered at its highest, establishes a material change of circumstances that would justify the relitigation of the parenting issue. This involves examining whether the circumstances have shifted since the last order such that it is necessary for the court to reconsider the welfare of the children. The applicant presented several grounds for the change, including the children's expressed wishes to live with him, the ability to provide a stable home, concerns about the respondent's mental health, and issues with the children's treatment and routines in the respondent’s household. The court was required to determine if these factors, taken individually or collectively, amount to a material change.
In addressing the issue, the court adopted the principle that a change in circumstances must be significant enough to compel the court to revisit the welfare of the children. The court noted that the change must be such that if taken into account, there is a real likelihood that the orders may change. The applicant's assertions about the children's wishes were scrutinized, and it was found that these wishes predated the final orders made in 2020, thus not constituting a new or material change. The other factors raised by the applicant were also considered, but the court found that they did not reach the threshold of a material change of circumstances. Consequently, the court dismissed the application for varying the existing parenting orders.
In light of the dismissal, the court made several orders to ensure the children's interests are represented and to facilitate a comprehensive assessment of their welfare. These orders include the appointment of an independent children's lawyer to represent the children in the proceedings, the provision for a family report to be prepared by a court child expert, and the scheduling of a case management hearing to further manage the case. These measures aim to ensure that the children's voices and best interests are central to any future decisions regarding their care and custody.
Orders
Orders of the court
BRC 12442 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:
MR NAISBY
Applicant
AND:
MS NAISBY
Respondent
ORDER MADE BY:
JARRETT J
DATE OF ORDER:
22 JANUARY 2024
THE COURT ORDERS THAT:
1. The children CC born 2009 and DD born 2011 be represented in these proceedings and it is requested that Legal Aid Queensland arrange such representation, and that the independent children’s lawyer be at liberty to peruse and/or take copies of all documents filed in these proceedings upon the making of an appointment to do so with the Registrar of the Federal Circuit and Family Court of Australia (Division 1) at Brisbane.
2. The independent children’s lawyer shall have leave to inspect and copy documents produced to the Court under subpoena in these proceedings.
3. Pursuant to s 62G(5) of the Family Law Act 1975 (Cth) the parties and the children CC born 2009 and DD born 2011 attend upon a court child expert (as family consultant) as directed by the Director, Court Children’s Service on a date and time to be advised for the purposes of preparation of a report pursuant to s 62G(2) of the Family Law Act 1975 (Cth).
4. The s 62G(2) report deal with the following matters:
(a) any views expressed by the children and any factors (such as the children’s maturity or level of understanding) that would affect the weight that the Court should place on those wishes;
(b) the matters set out in ss 60CC, 61DA and 65DAA of the Family Law Act 1975 (Cth) and
(c) any other matters that the court child expert considers important to the welfare or best interests of the children.
5. The court child expert be granted leave to inspect documents produced to the Court under subpoena in these proceedings.
6. The matter be otherwise adjourned for case management hearing to 9.30am on 24 June, 2024 in the Federal Circuit and Family Court of Australia (Division 1) at Brisbane.
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 subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Different words are used throughout the case law to describe whether a change of circumstances is sufficient to warrant a re-examination of parenting orders: material, significant, substantial are just some of them. In King & Finneran [2001] FamCA 344, Collier J, citing the decision of the Full Court in The Marriage of D & Y (1995) FLC 92-581, said:The change or fresh circumstance must be such that upon becoming advised of it and being satisfied of its existence, a court would be left in no doubt that it was necessary to relitigate the parenting issue in dispute between the parties. That is not to say that a court must be satisfied that the fresh or changed circumstance would result in a change to the orders. It merely indicates that the change or fresh circumstance must be such that if taken into account there is a real likelihood that a change may follow.CONSIDERATION The applicant accepts, at the very least implicitly, that in the absence of a significant or material change in circumstances sufficient to warrant revisiting the welfare of the children, his application is bound to fail. The applicant’s evidence is difficult to sift through, but he provides ostensibly four reasons to find there has been a requisite change of circumstances to permit his application to proceed:(1)the children have now expressed a wish to live with him and they have aged since the last trial such that more weight should be given to their wishes;(2)the applicant and his wife are now in a position to establish a stable Brisbane home such that the children can spend more time with them but not be required to change schools;(3)some unparticularised concern about the respondent’s mental health exposing the children to risk of emotional or psychological harm; and (4)some concerns about the treatment of the children in the respondent’s household and their routines. The respondent disputes 1, 3, and 4. She offers no comment on 2. The determination of this preliminary issue must proceed on an assumption that the applicant can make good his factual assertions. In Searson & Searson (2017) FLC 93–788, Kent J held at [60] (Loughnan J agreeing and see also Murphy J at [11] and [43]) that on the hearing of a preliminary issue such as this, the court was bound to assume the acceptance of the applicant’s evidence on the question of whether a sufficient change in circumstances was demonstrated. As to the views of the children, the applicant’s evidence is that CC has consistently and repeatedly stated since mid-2019 that he wants to live with the applicant. That on its own does not represent a change of circumstances because, on the applicant’s own evidence, it predates the final orders made in 2020 and the orders made by consent in 2021. The applicant, and his wife, give some more specific examples of the children expressing their wishes to spend more time with the applicant since 2021 in their evidence filed in support of this application. The respondent’s evidence is that she has not observed the children to say any of the things the applicant suggests. She also notes that the applicant expressed the children had told him these things prior to the previous trial.