FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Naisby & Naisby (No 3) [2024] FedCFamC1F 787
File number(s): BRC 12442 of 2022 Judgment of: JARRETT J Date of judgment: 8 November 2024 Catchwords: FAMILY LAW – PARENTING – Oral application by ICL for summary dismissal of parenting application – consideration of s 65DAAA and previous authority on Rice & Asplund – No change in circumstances established Legislation: Family Law Act 1975 (Cth) ss 62G, 65DAAA, 102QAC
Family Law Amendment Act 2023 (Cth) Schedule 1 Part 3 Clause 27
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 46(2), 46(3)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.06(3)(h), 1.31, 10.09(1), 10.09(2)
Cases cited: Defrey & Radnor [2021] FamCAFC 67
Elmi & Munro (2019) FLC 93-912
McEnearney & McEnearney (1980) FLC 90-866
Racheem & Racheem [2024] FedCFamC1F 595
Rice & Asplund (1979) FLC 90-725
SPS & PLS (2008) FLC 93-363
Stern & Colli (2022) 65 Fam LR 548
Whitehill & Talaska [2024] FedCFamC2F 768
Division: Division 1 First Instance Number of paragraphs: 41 Date of hearing: 7 November 2024 Place: Brisbane Counsel for the Applicant: Mr Jones Solicitor for the Applicant: Hofstee Lawyers Counsel for the Respondent: Ms Barnes Solicitor for the Respondent: Sterling Law (Qld) Counsel for the Independent Children’s Lawyer: Ms Downes Solicitor for the Independent Children’s Lawyer: Life Law Solutions 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:
8 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The application filed 6 October 2022 is dismissed.
2.Costs are reserved.
BY CONSENT THE COURT FURTHER ORDERS THAT:
3.The orders of 2 March 2021 and 5 June 2020 be amalgamated into this single set of orders.
4.All previous parenting orders be discharged.
5.The respondent have sole decision making responsibility for the major long term decisions for the children provided that:
(a)she informs the applicant in writing of the decision to be made, giving fourteen (14) days’ notice;
(b)she takes into account any response provided by the applicant; and
(c)she informs the applicant in writing of the final decision with forty-eight (48) hours of the decision.
6.Forthwith the children CC born 2009 and DD born 2011 (the children) live with the respondent and shall spend regular time with the applicant each alternate weekend from after school Friday or 3pm if a public holiday or pupil free day to 6:00pm Sunday (Qld time) or 6:00pm Monday (Qld time) if it is a public holiday or pupil free day.
7.The children shall communicate by phone/Skype/FaceTime with the parent they are not with at all times as the children reasonably request and may use their mobile phones to do so, the resident parent to ensure the children have privacy during the call.
8.The children are permitted to communicate with both parents via electronic means at all reasonable times.
9.The children spend time with the applicant on…
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- AGLC
- Naisby & Naisby (No 3) [2024] FedCFamC1F 787
- Case
- [2024] FedCFamC1F 787
- Decision Date
CaseChat Overview and Summary
The court analysed the new legislative provision, section 65DAAA, in light of previous judicial authority, particularly the principles established in Rice & Asplund. The court noted that while section 65DAAA appears to codify these principles, it does not mandate the same detailed factual findings required in prior cases. The court examined whether the applicant had established a significant change of circumstances and whether reconsideration was in the best interests of the child. Ultimately, the court found that no significant change in circumstances had been demonstrated, and thus, the application for summary dismissal was dismissed.
The court further ordered that the previous parenting orders be amalgamated, discharged, and replaced with new orders that allocate sole decision-making responsibility to the respondent, while also detailing specific arrangements for the children's time spent with each parent, communication, travel, and other pertinent matters. The court also restrained the parents from certain negative behaviours in the children's presence and required them to participate in dispute resolution if necessary. Additionally, the court prohibited the applicant from initiating further proceedings without leave and mandated the provision of information to various professionals and schools.
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:
8 NOVEMBER 2024
THE COURT ORDERS THAT:
1. The application filed 6 October 2022 is dismissed.
2. Costs are reserved.
BY CONSENT THE COURT FURTHER ORDERS THAT:
3. The orders of 2 March 2021 and 5 June 2020 be amalgamated into this single set of orders.
4. All previous parenting orders be discharged.
5. The respondent have sole decision making responsibility for the major long term decisions for the children provided that:
(a) she informs the applicant in writing of the decision to be made, giving fourteen (14) days’ notice;
(b) she takes into account any response provided by the applicant; and
(c) she informs the applicant in writing of the final decision with forty-eight (48) hours of the decision.
6. Forthwith the children CC born 2009 and DD born 2011 (the children) live with the respondent and shall spend regular time with the applicant each alternate weekend from after school Friday or 3pm if a public holiday or pupil free day to 6:00pm Sunday (Qld time) or 6:00pm Monday (Qld time) if it is a public holiday or pupil free day.
7. The children shall communicate by phone/Skype/FaceTime with the parent they are not with at all times as the children reasonably request and may use their mobile phones to do so, the resident parent to ensure the children have privacy during the call.
8. The children are permitted to communicate with both parents via electronic means at all reasonable times.
9. The children spend time with the applicant on the term 1, 2 and 3 Queensland School holidays as follows:
(a) from 3:00pm or after school on the last day of the school term until 6pm on the Sunday falling in the middle of the holidays; and
(b) changeover during the school holiday periods shall occur at school or on days the children are not at school, at Suburb AB Coles Supermarket with the father to collect and deliver the children at the commencement and conclusion of the time the children spend with him.
10. The children spend time with the parents on term 4 Queensland Christmas School holidays as follows:-
(a) in all even numbered years the children shall spend the first half (including the Christmas Day period) and the final week with the applicant and the balance with the respondent;
(b) in all odd numbered years the children shall spend the first half (including the Christmas Day period) with the respondent and the balance with the applicant;
(c) for the purpose of calculating the length of the holiday period, the holidays shall be deemed to commence at after school on the last day of the school term and conclude at 6:00pm (Qld time) the day immediately before commencement of the new school term.
11. The children will communicate by phone/Skype with the parent they are not with on special days, including birthdays and Easter Sunday.
12. That the children shall spend the Mother’s Day weekend each year with the respondent and the Father’s Day weekend each year with the applicant, in lieu of usual weekend time.
13. Each parent provide the other two (2) weeks’ written notice of important family events to which the children are invited, including date, time and location of the event, and the other parent shall not unreasonably withhold the children from attending.
14. Both parents are to keep the other informed of a current contact address and telephone number (including a mobile phone number) and will inform the other parent in writing within forty-eight (48) hours of any change.
15. The parent responsible for the care of the children is to contact the other parent as soon as practicable if the children:
(a) become seriously ill;
(b) are hospitalized; or
(c) involved in an accident; and
(d) inform the other parent of the name and address of any treating doctor and medical facility, which shall not be the father or his wife, Ms O.
16. These orders provide authorisation to:
(a) allow the provision to either parent by any health, educational or welfare professional or other professional attended by the children of any information affecting the health and welfare of the children;
(b) permit the children’s day care centre/school to provide reports, notices and school photographs to either parent;
(c) permit either parent to discuss with the children’s child carer/teacher their performance.
17. The parents are hereby restrained from:
(a) speaking to or about the other parent or their family in a negative, offensive or unpleasant fashion in the children’s hearing; and
(b) discussing any proceedings between the parents or adult decisions/issues in the presence or hearing of the children; and
(c) allowing the children directly or indirectly to read, copy or view any of the court documents or court orders prepared in these proceedings.
18. That the children’s passports be held by the mother and be provided to that parent within seven (7) days of the date of these Orders.
19. The children are permitted to travel overseas during times as agreed between the parents in writing, or otherwise during the time spent with each parent, provided that the travelling parent gives the other parent two months written notice of the travel details including:
(a) departure and arrival dates
(b) flight details, including airlines and flight numbers, and
(c) contact details for the children whilst overseas, including address and telephone contact telephone number.
20. If not already in their possession, the travelling parent shall be provided with the children’s passports within seven (7) days of the above information being received.
21. If not already in their possession, the children’s passports shall be returned to the resident parent within fourteen (14) days of their return to Australia.
22. Should the children’s passports require renewal, both parents will do all things and sign all documents required to renew the passports.
23. In the event the parents cannot reach a joint decision about:
(a) the interpretation of these Orders; or
(b) the implementation of these Orders; or
(c) a variation of these Orders to take account of the changing needs or circumstances of the child or of the parties;
(d) the enforcement of these Orders; which involves the children;
then each of the parents will do all things necessary to participate in counselling or family dispute resolution with an organisation recognised under the Family Law Act 1975 (Cth).
24. The parents are at liberty to contact the children at all reasonable times.
25. Pursuant to s 102QAC of the Family Law Act 1975 (Cth) the applicant be prohibited from instituting further proceedings against the respondent without leave of the Court.
26. Pursuant to s 102QAC(7) of the Family Law Act 1975 (Cth) the respondent is to be notified by the Court of an application having been made and am application being dismissed.
27. The parties be restrained from electronically recording appointments of any type with the children’s treating practitioners or asking any person to do so.
28. Within seven (7) days of the date of these orders, the independent children’s lawyer will provide a copy of these orders and the family report of Ms AC to the following practitioners:
(a) Dr ZZ;
(b) Dr AD (just the orders);
(c) AE School and any other school/s the children may attend (just the orders);
(d) AF Medical Centre, Suburb AB (just the orders);
(e) Dr YY;
(f) Dr AG; and
(g) Dr AH.
29. The independent children’s lawyer be discharged.
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
Since I delivered those reasons and made orders consequent upon them, the law has changed. The Family Law Act 1975 (Cth) has been amended, relevantly, by the enactment of s 65DAAA. Clause 27 of Part 3 of Schedule 1 to the Family Law Amendment Act 2023 (Cth) specifies that s 65DAAA applies in relation to final parenting orders whether the orders came into force before, or came into force on or after, the day the item in the schedule commences (which was 6 May 2024). Section 65DAA provides:65DAAA Reconsideration of final parenting orders(1)If a final parenting order is in force in relation to a child, a court must not reconsider the final parenting order unless:(a)the court has considered whether there has been a significant change of circumstances since the final parenting order was made; and(b)the court is satisfied that, in all the circumstances (and taking into account whether there has been a significant change of circumstances since the final parenting order was made), it is in the best interests of the child for the final parenting order to be reconsidered.(2)For the purposes of determining whether the court is satisfied as mentioned in paragraph (1)(b), and without limiting section 60CC, the court may have regard to any matters that the court considers relevant, including the following:(a)the reasons for the final parenting order and the material on which it was based;(b)whether there is any material available that was not available to the court that made the final parenting order;(c)the likelihood that, if the final parenting order is reconsidered, the court will make a new parenting order that affects the operation of the final parenting order in a significant way (whether by varying, discharging or suspending the final parenting order, in whole or in part, or in some other way);(d)any potential benefit, or detriment, to the child that might result from reconsidering the final parenting order.(3)Despite subsection (1), the court may reconsider a final parenting order with the agreement or consent of all the parties to that order.(4)The failure of a court to comply with subsection (1) does not affect the validity of any order made by the court. It is suggested that this section represents a codification of the principles deriving from the line of authority I have referred to above as the principles in Rice and Asplund. I am not sure that is so because, apart from anything else, as the Full Court set out in Defrey & Radnor (at [22]): … The primary judge’s task was a two-staged process. First, to make findings of fact as to what changes there had been in circumstances since the making of the 2015 orders and secondly, to assess whether or not the father had established that these changes are sufficient to provoke a new inquiry…” Section 65DAAA(1)(a) does not require the court to make any findings that alone findings of fact as to what changes there had been in circumstances since the making of the previous orders. It merely requires a consideration of whether there has been a “significant change of circumstances” since that time. This aspect of the text of s 65DAAA(1)(a) has attracted the attention of other judges: Racheem & Racheem [2024] FedCFamC1F 595 and Whitehill & Talaska [2024] FedCFamC2F 768.