Newton & Henzel - [2016] FamCA 323

FAMILY COURT OF AUSTRALIA

NEWTON & HENZEL

[2016] FamCA 323

FAMILY LAW – PRACTICE AND PROCEDURE - Application to reopen – Rice & Asplund (1979) FLC 90-725 considered – where final orders have been made that the mother have sole parental responsibility, the children live with the mother and the children spend no time with the father – where the father seeks to reopen parenting proceedings in relation to parental responsibility and his time with the children – no significant change of circumstance shown to justify reopening – application to reopen dismissed

Family Law Act 1975 (Cth)

DL & W [2012] FamCAFC 5; (2012) FLC 93-496
Freeman & Freeman (1987) FLC 91-857
McEnearney & McEnearney (1980) FLC 90-866
Lowe v Lowe (Unreported, High Court of Australia, Mason CJ, Dawson and Toohey JJ, 6 April 1990)
Poisat & Poisat (2014) FLC 93-597
Rice & Asplund (1979) FLC 90-725
SPS & PLS [2008] FamCAFC 16; (2008) FLC 93-363

APPLICANT:

Mr Newton

RESPONDENT:

Ms Henzel

FILE NUMBER:

DGC

3041

2012

DATE DELIVERED:

6 May 2016

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Macmillan J

HEARING DATE:

21 March 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Bayliss

SOLICITOR FOR THE APPLICANT:

Powell Bayliss Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Weerappah

SOLICITOR FOR THE RESPONDENT:

Bayside Solicitors

Orders

IT IS ORDERED THAT

The father’s Initiating Application filed 19 November 2015 and the mother’s Response to Initiating Application filed 21 December 2015 be dismissed.
The questions of costs arising out of or incidental to this application be reserved for determination.
On or before 4.00 pm on 6 June 2016 the parties file and serve any written submissions in support of any application for costs arising out of or incidental to this application.
On or before 4.00 pm on 20 June 2016 the parties file and serve any reply to any written submissions in support of any application for costs arising out of or incidental to this application.
All extant applications save and except for any applications for costs, be otherwise dismissed and the matter be removed from the list of pending cases awaiting hearing.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Newton & Henzel has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGC 3041 of 2012

Mr Newton

Applicant

And

Ms Henzel

Respondent

REASONS FOR JUDGMENT

On 15 August 2014 I made final orders that the mother have sole parental responsibility for the children of the marriage B and C born … 1997, D born … 2002, E born … 2005 and F born 2 … 2007 and that the children not spend any time nor communicate with the father. A final order had previously been made by consent by Senior Registrar FitzGibbon on 5 April 2013 that the children live with the mother.
The matter proceeded as an undefended matter at the hearing before me on…

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 Newton & Henzel

Details

AGLC: Newton & Henzel [2016] FamCA 323
Case: [2016] FamCA 323
Decision Date: 6 May 2016

CaseChat Overview and Summary

In Newton & Henzel, the parties brought applications concerning parenting orders. The father filed an Initiating Application on 19 November 2015, and the mother filed a Response to Initiating Application on 21 December 2015. The matter came before Macmillan J.

The court was required to determine the threshold issue of whether to proceed with a full hearing on the merits of the applications, or to dismiss them at a preliminary stage. This involved considering the sufficiency of new events to justify a new inquiry into the existing parenting arrangements, and whether such a dismissal constituted a "parenting order" under the Act.

Macmillan J, referencing the observations of Warnick J in other cases, acknowledged that an order simply dismissing an application to vary or discharge an earlier parenting order might not strictly fall within the definition of a "Parenting Order" under s 64B of the Act. However, the paramountcy principle, as set out in s 60CA, still applies to such decisions because the court must always regard the best interests of the child as the paramount consideration. The court noted that dismissing an application at a preliminary stage, based on the insufficiency of demonstrated changes in circumstances, is a determination "on the merits" rather than for technical reasons. This approach aims to protect the child's interests by avoiding further litigation when there is no substantial basis to alter existing arrangements. Despite doubts expressed in *Poisat & Poisat* regarding whether a dismissal order is a "parenting order," Macmillan J considered the relevant s 60CC considerations in light of the children's best interests.

The court ordered that the father's Initiating Application and the mother's Response be dismissed. All extant applications, except for any applications for costs, were also dismissed, and the matter was removed from the list of pending cases. The questions of costs were reserved for determination, with parties required to file written submissions and replies by specific dates.

Orders

Orders of the court

IT IS ORDERED THAT

The father’s Initiating Application filed 19 November 2015 and the mother’s Response to Initiating Application filed 21 December 2015 be dismissed.

The questions of costs arising out of or incidental to this application be reserved for determination.

On or before 4.00 pm on 6 June 2016 the parties file and serve any written submissions in support of any application for costs arising out of or incidental to this application.

On or before 4.00 pm on 20 June 2016 the parties file and serve any reply to any written submissions in support of any application for costs arising out of or incidental to this application.

All extant applications save and except for any applications for costs, be otherwise dismissed and the matter be removed from the list of pending cases awaiting hearing.

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

Warnick J in support of his observations with respect to the application being dealt with on its merits also said that:71. An order simply dismissing an application to vary or discharge an earlier parenting order may not neatly fit within the definition of “Parenting Order” as set out in s 64B, although a variation or discharge of the earlier order would. However, the paramountcy principle still applies to the decision to dismiss an application to vary, because of the terms of s 60CA which are:Child's best interests paramount consideration in making a parenting order In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration. …81. … when the threshold question described in Rice and Asplund is determined as a preliminary matter, it remains a determination “on the merits”. Where an application is dismissed at a preliminary stage, it is not dismissed for some technical reason, such as the failure of a party to appear or some lack of compliance with form and procedure but rather because, assuming the evidence of the applicant is accepted, there is an insufficient change of circumstance shown to justify embarking on a hearing. Though sometimes unstated, the underlying conclusion will or ought be that the interests of the child in not being the subject of further litigation is more powerfully in the child’s welfare than to allow the application to continue.…84. … The essential question however is as to the sufficiency of new events to provoke a new enquiry. The answer to this question involves putting events in the context of the broader circumstances pertaining to arrangements for a child and measuring the significance of the events against the significance of the steps that might follow in light of them. In the more recent case of Poisat & Poisat (2014) FLC 93-597 the Full Court referring to the observations of Warnick J in SPS & PLS (supra) expressed their doubts at paragraph 54 “… as to whether the order dismissing the father’s application is a “parenting order” as defined in the Act. The (wide) definition in s 64B does not include dismissal of an application. Seen in the context of Part VII as a whole, the omission seems plainly intentional. For example, if an order dismissing an application was a “parenting order” the court would be obliged to apply the presumption in s 61DA and to consider the matters in s 65DAA in circumstances where the court was determining that no parenting order should be made”. The parties agreed that the Court should determine the threshold issue as a preliminary matter in this case. I am satisfied that to do otherwise in all of the circumstances of this case would almost certainly cause the mischief that the rule in Rice & Asplund is intended to protect against. Notwithstanding the observations of the Full Court in Poisat & Poisat (supra), having regard to the best interests of the children in this case, I have considered those of the s 60CC of the Act considerations that are relevant to the particular circumstances of this case and the issue I am required to determine. I will refer to these matters in more detail later in these reasons.