Poisat and Poisat - [2012] FamCA 968

FAMILY COURT OF AUSTRALIA

POISAT & POISAT

[2012] FamCA 968

FAMILY LAW – CHILDREN – Application to vary parenting orders – Where final orders were made by consent in September 2010 – Consideration as to whether there were changed circumstances to justify a new hearing – Principles in Rice & Asplund (1979) FLC 90-725 discussed – Preliminary issue – Where best interests of the children is primary consideration – Where it is not in the children’s best interest to be involved in further litigation – Where children expressed wishes for the present arrangements to remain unchanged – Where change in father’s circumstances is not of sufficient significance to justify revisiting the parenting arrangements – Application dismissed.

Family Law Act 1975 (Cth)

Rice & Asplund (1979) FLC 90-725
In the Marriage of McEnearney (1980) FLC 90-866
Bennett (1991) FLC 92-191
CDJ v VAJ (1998) FLC 92-828
Gaul & Gaul (2000) FamCA 12
King & Finneran (2001) FLC 93-079
SPS & PLS (2008) FLC 93-363

APPLICANT:

Ms Poisat

RESPONDENT:

Mr Poisat

FILE NUMBER:

SYC

768

2012

DATE DELIVERED:

16 November 2012

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Rees J

HEARING DATE:

26 September 2012 and 13 November 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Watts McCray Lawyers

SOLICITOR FOR THE RESPONDENT:

Self Represented

Orders

IT IS ORDERED

That the application of the father filed 14 February 2012 seeking to vary parenting orders made on 10 September 2010, be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Poisat & Poisat 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 SYDNEY

FILE NUMBER: SYC 768 of 2012

Ms Poisat

Applicant

And

Mr Poisat

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

Before the Court are parenting proceedings in relation to two children C born …2000, now aged 12, and R born …2004, now aged 8. On 10 September 2010, by consent, final orders were made in relation to the parenting arrangements for the children. The orders were that the children would live with their mother, and spend time with their father each alternate week from Wednesday until the commencement of school on the following Monday.
On 14 February 2012, the father filed an application to vary the parenting orders seeking, inter alia, orders that the children spend equal time with him and with their mother and in relation to their schooling. The mother opposes those orders, and has filed an Application in a Case seeking an order that the father's application be dismissed pursuant to the principles in Rice & Asplund.
The father in his Initiating Application seeks orders which would vary the arrangements put into place by consent in 2010. He proposes an arrangement whereby the children live with each party for equal time. The changeover time being on Wednesdays. The mother, in her response to the father's application, seeks an order that C attend private school commencing on the first…

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

Case: [2012] FamCA 968
Decision Date

CaseChat Overview and Summary

In the Family Court of Australia, Ms Poisat (the mother) applied to dismiss an application by Mr Poisat (the father) to vary existing consent orders concerning the parenting arrangements for their two children. The original orders, made in September 2010, stipulated that the children live with the mother and spend time with the father on alternate weeks. The father sought to vary these orders to provide for equal shared time between the parents and also raised issues regarding the children's schooling.

The court was required to determine whether there were changed circumstances sufficient to justify revisiting the final parenting orders made by consent. This involved considering the principles established in *Rice & Asplund* (1979) and subsequent authorities, which emphasise the need to avoid endless litigation and protect children from the psychological harm of repeated court proceedings, unless there is a significant change in circumstances that demonstrably requires a fresh consideration of the children's welfare. The court also had to consider the best interests of the children as the paramount consideration, including their expressed wishes and the potential detriment of further litigation.

Justice Rees applied the principles from *Rice & Asplund*, noting that an application to vary final parenting orders should not be entertained lightly. The court found that the changes relied upon by the father, such as his de facto relationship, stable accommodation, and more flexible work arrangements, were primarily changes in his own circumstances and not of sufficient significance to warrant revisiting the parenting arrangements. While the father also referred to the children's counselling and speech therapy, the court considered these to be natural developments in children's lives and not indicative of a need to alter the existing orders. Crucially, the court gave significant weight to the children's expressed wishes to maintain the current arrangements, with both children indicating they were content with the status quo and did not support the father's proposal for equal time. The court concluded that the children's best interests, particularly their interest in finality and avoiding further litigation, outweighed any potential benefit of a fresh hearing.

Consequently, the father's application to vary the parenting orders was dismissed.

Orders