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Radecki & Radecki

Radecki & Radecki

Case [2024] FedCFamC2F 811 27 June 2024

Equal Shared Parental Responsibility

Family Law

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Radecki & Radecki [2024] FedCFamC2F 811

File number(s): SYC 5418 of 2023

Judgment of: JUDGE W J NEVILLE

Date of judgment: 27 June 2024

Catchwords: FAMILY LAW – PARENTING – Father’s Application pursuant to s.65DAA to re-visit Final Orders made on an undefended basis in December 2015 when the child was two years old – long history of the Mother facilitating additional time between Father and son – Mother contends that the Father has been inconsistent and unreliable in spending overnight time with the child – while Father acknowledges a significant history of alcohol abuse but nothing in the last 18 months or thereabouts, no details were provided by the Father, whereas the Mother provided subpoenaed police records which show a very significant history of the Father being intoxicated, becoming physically aggressive and various assaults including significant dysregulation in engagements with his family – consideration of significant body of case law regarding Rice & Asplund in the light of statutory codification of the principle from that case – a form of codification of judicial discretion – Father brought no Application to vary or discharge the 2015 Orders until July 2023 – Father’s Application dismissed.

Legislation: Family Law Act 1975 (Cth) s.60B, 60CC(2)(a) – (d), 65DAAA

Cases cited:
AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175
Baisman & Cartmill [2022] FedCFamC1A 36
Carriel v Lendrum (2015) 53 Fam LR 157
Goode v Goode (2006) 206 FLR 212; (2007) 36 Fam LR 422
Katar & Sevan [2024] FedCFamC1A 49
Mahoney & Dieter [2020] FamCAFC 88
Marsden v Winch (2010) 42 Fam LR 1
Miller v Harrington (2008) 220 FLR 300; (2009) 39 Fam LR 654
NBGM v Minister for Immigration and Multicultural Affairs (2006) 231 CLR 52
O’Brien & O’Brien [2017] FamCAFC 219
Phillips v Hansford (No.2) (2020) 60 Fam LR 160
Poisat & Poisat (2014) FLC 93-597

Rice & Asplund (1978) 6 Fam LR 570; (1979) FLC 90-725

Shan & Prasad (2020) 61 Fam LR 440

SPS & PLS (2008) 217 FLR 164; (2008) FLC ¶93–363; (2009) 39 Fam LR 295
Stern v Colli (2022) 65 Fam LR 548
Swenson & Brantley (No.2) [2020] FamCAFC 205
Tickner v Chapman (1995) 57 FCR 451

Walter & Walter [2016] FamCAFC 56

Geraldine van Bueren in The International Law on the Rights of the Child, (Dordrecht: Martinus Nijhoff Publishers, 1995)

M. Freeman, The moral status of children: Essays on the Rights of the Child, (The Hague: Kluwer Law International, 1997)

M. Jones and L.A Basser Marks, “United Nations Convention on the Rights of the Child” a blueprint for Australia’s children,” in M. Jones and L.A Basser Marks (eds.) Children on the Agenda: the rights of Australia’s children (Chippendale, NSW: Prospect Media Pty Ltd, 2001)

J. Tobin, “The Development of Children’s Rights”, Chapter 2 in Children and the Law in Australia (2^nd Edition) (eds. L. Young, M.A. Kenny, G. Monahan) (Sydney: LexisNexis, 2017)

Division: Division…

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 Radecki & Radecki

Details

AGLC: Radecki & Radecki [2024] FedCFamC2F 811
Case: [2024] FedCFamC2F 811
Decision Date: 27 June 2024

CaseChat Overview and Summary

In the matter of Radecki & Radecki, the Federal Circuit and Family Court of Australia considered a father’s application to revise the parenting orders made in December 2015. The father sought to increase the time he spent with his son, who was two years old at the time of the original orders. The mother opposed the application, citing the father's history of unreliability and inconsistency in spending time with the child, as well as his significant history of alcohol abuse and associated aggressive behaviour.

The central legal issues before the court were whether the father's history of alcohol abuse and associated behaviour justified a departure from the existing arrangements and whether the delay in bringing the application warranted a different outcome. The court had to balance the statutory codification of the principles established in Rice and Asplund against the father’s acknowledgment of past issues and the mother’s evidence of recent incidents. The court also considered the parents' history of co-operation in arranging extra time for the father with the child.

After reviewing the evidence and relevant case law, the court concluded that the father's application should be dismissed. The court found that the father had not demonstrated sufficient change in circumstances to warrant a modification of the existing orders. The court also noted the significant delay in bringing the application and the mother’s evidence of the father’s continued unreliability and aggressive behaviour. The court suggested that the parties should arrange regular co-parenting meetings to discuss alternative arrangements for the child’s care.

The court ordered that the father's application be dismissed and that each party bear their own costs unless an application was made within 14 days. The court also noted that given the parents' history of co-operation, they should consider scheduling mediated co-parenting meetings to explore alternative parenting arrangements for the child.

Orders

Orders of the court

THE COURT ORDERS THAT:

1. The Father’s Application, filed 26 July 2023, be dismissed.

2. Absent any Application being filed by either party within 14 days, each party shall pay their own costs pursuant to section 117(1) of the Family Law Act 1975 (Cth).

AND THE COURT NOTES THAT:

A. In the light of (a) the parents having equal shared parental responsibility, and the terms of Order 2f made in December 2015, and (b) the parties’ long history of reaching agreement to make provision for the child to spend extra time with his Father, the parties should consider arranging, perhaps every 3 months or as otherwise agreed, a mediated co-parenting meeting to determine any specific, alternative the parenting arrangements for the child.

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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

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Citations

Radecki & Radecki [2024] FedCFamC2F 811

Most Recent Citation

Lehtinen & Lehtinen (No 4) [2024] FedCFamC2F 1795

Cases Citing This Decision

Bellanger & Wemble (No 5) [2025] FedCFamC2F 783
Citation 1 (Para 8)

…The Full Court dealt with the meaning of a particular word, or words, in the Act in the decision of Radecki & Radecki [2024] FedCFamC2F 811: 64The starting point for statutory interpretation is s 15AA of the Acts Interpretation Act 1901 (Cth) (“the Interpretation Act”) which states: 15AA Interpretation best achieving Ac…
Radecki & Radecki [2024] FedCFamC1A 246
Citation 2

…ERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1) APPELLATE JURISDICTION Radecki & Radecki [2024] FedCFamC1A 246 Appeal from: Radecki & Radecki [2024] FedCFamC2F 811 Appeal number: NAA 187 of 2024 File number: SYC 5418 of 2023 Judgment of: AUSTIN, CAREW & WILLIAMS JJ Date of judgment: 19 December 2024 Catchwords:…
Lehtinen & Lehtinen (No 4) [2024] FedCFamC2F 1795
Citation 3 (Para 17)

…In Radecki & Radecki [2024] FedCFamC2F 811, at [9], Judge Neville noted: …There is no requirement the Court make a positive finding of a significant change in circumstances. The only requirement upon the Court is to consider whether there has been such a change.…

See all citing cases →

Cases Cited

Katar & Sevan [2024] FedCFamC1A 49
Citation 1

…22] FedCFamC1A 36 Carriel v Lendrum (2015) 53 Fam LR 157 Goode v Goode (2006) 206 FLR 212; (2007) 36 Fam LR 422 Katar & Sevan [2024] FedCFamC1A 49 Mahoney & Dieter [2020] FamCAFC 88 Marsden v Winch (2010) 42 Fam LR 1 Miller v Harrington (2008) 220 FLR 300; (2009) 39 Fam LR 654 NBGM v Minister for Immigration and Multic…
Ortega & Collier [2023] FedCFamC1F 958
Citation 2 (Para 9)

…is needs are different. 41.In Ortega & Collier [2023] FedCFamC1F 958 (14 November 2023), Altobelli J had cause to consider a fresh parenting application for an almost 4 year old child when final orders had been made when the child was only 15 months old. Whilst the major reason for a change in circumstances was the Fath…
Stern & Colli [2022] FedCFamC1A 95
Citation 3 (Para 9)

…Searson [2017] FamCAFC 119; (2017) FLC 93-788; Shan & Prasad [2020] FamCAFC 189; (2020) 61 Fam LR 440; Stern v Colli [2022] FedCFamC1A 95. 16.The Full Court in Marsden & Winch (supra) at [50] set out a three step test when evaluating a Rice v Asplund threshold question: (i)Consideration of the “past circumstances, inc…
Baisman & Cartmill [2022] FedCFamC1A 36
Citation 4 (Para 9)

…ended that such cases, to the extent that they are consistent with s 65DAAA, continue to have application. 14.In Baisman & Cartmill [2022] FedCFamC1A 36, Tree J summarises from a number of Full Court cases the relevant principles of the rule in Rice & Asplund: 11. The so-called rule in Rice and Asplund [1978] FamCAFC 1…
Defrey & Radnor [2021] FamCAFC 67
Citation 5 (Para 1)

…determination is made, the rule is a manifestation of the best interests principle ( Poisat at [18], [19], [40], and [42]; Defrey & Radnor [2021] FamCAFC 67 and procedural fairness must be observed ( Marsden v Winch (2009) 42 Fam LR 1 (“ Marsden & Winch ”) at [56]). Save as to complaint, the father made no submissi…
Varnham & Moses [2021] FamCAFC 31
Citation 6 (Para 2)

…of children is inimical to their welfare and contrary to their best interests (Langmeil & Grange [2021] FamCAFC 31).’ It is the mother’s position that there have been no significant changes in circumstance since the making of the final parenting orders for which it would be in [X's] best interests for the final par…
Swenson & Brantley (No.2) [2020] FamCAFC 205
Citation 7

…08) 217 FLR 164; (2008) FLC ¶93–363; (2009) 39 Fam LR 295 Stern v Colli (2022) 65 Fam LR 548 Swenson & Brantley (No.2) [2020] FamCAFC 205 Tickner v Chapman (1995) 57 FCR 451 Walter & Walter [2016] FamCAFC 56 Geraldine van Bueren in The International Law on the Rights of the Child , (Dordrecht: Martinus Nijhoff Publis…
Shan & Prasad [2020] FamCAFC 189
Citation 8 (Para 9)

…93-383; Marsden v Winch [2013] 50 Fam LR 409; Searson & Searson [2017] FamCAFC 119; (2017) FLC 93-788; Shan & Prasad [2020] FamCAFC 189; (2020) 61 Fam LR 440; Stern v Colli [2022] FedCFamC1A 95. 16.The Full Court in Marsden & Winch (supra) at [50] set out a three step test when evaluating a Rice v Asplund threshold…
Mahoney & Dieter [2020] FamCAFC 88
Citation 9

…015) 53 Fam LR 157 Goode v Goode (2006) 206 FLR 212; (2007) 36 Fam LR 422 Katar & Sevan [2024] FedCFamC1A 49 Mahoney & Dieter [2020] FamCAFC 88 Marsden v Winch (2010) 42 Fam LR 1 Miller v Harrington (2008) 220 FLR 300; (2009) 39 Fam LR 654 NBGM v Minister for Immigration and Multicultural Affairs (2006) 231 CLR 52 O…
O'Brien & O'Brien [2017] FamCAFC 219
Citation 10

…R 300; (2009) 39 Fam LR 654 NBGM v Minister for Immigration and Multicultural Affairs (2006) 231 CLR 52 O’Brien & O’Brien [2017] FamCAFC 219 Phillips v Hansford (No.2) (2020) 60 Fam LR 160 Poisat & Poisat (2014) FLC 93-597 Rice & Asplund (1978) 6 Fam LR 570; (1979) FLC 90-725 Shan & Prasad (2020) 61 Fam LR 440 SPS &…
Searson & Searson [2017] FamCAFC 119
Citation 11 (Para 9)

…rities of note include Miller & Harrington (2008) FLC 93-383; Marsden v Winch [2013] 50 Fam LR 409; Searson & Searson [2017] FamCAFC 119; (2017) FLC 93-788; Shan & Prasad [2020] FamCAFC 189; (2020) 61 Fam LR 440; Stern v Colli [2022] FedCFamC1A 95. 16.The Full Court in Marsden & Winch (supra) at [50] set out a three…
Walter & Walter [2016] FamCAFC 56
Citation 12

…(2022) 65 Fam LR 548 Swenson & Brantley (No.2) [2020] FamCAFC 205 Tickner v Chapman (1995) 57 FCR 451 Walter & Walter [2016] FamCAFC 56 Geraldine van Bueren in The International Law on the Rights of the Child , (Dordrecht: Martinus Nijhoff Publishers, 1995) M. Freeman, The moral status of children: Essays on the Ri…
Langmeil & Grange [2013] FamCAFC 31
Citation 13 (Para 1)

…ontinuous litigation about the living arrangements of children is inimical to their welfare and contrary to their best interest ( Langmeil & Grange [2013] FamCAFC 31 [24] It is well established that the question of whether there has been a sufficient change in circumstances can be determined either by way of prelimi…
Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27
Citation 14 (Para 6)

…not usually over-run with matters from across the Court. [2] AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175.…
Miller v Harrington [2008] FamCAFC 150
Citation 15

…Katar & Sevan [2024] FedCFamC1A 49 Mahoney & Dieter [2020] FamCAFC 88 Marsden v Winch (2010) 42 Fam LR 1 Miller v Harrington (2008) 220 FLR 300; (2009) 39 Fam LR 654 NBGM v Minister for Immigration and Multicultural Affairs (2006) 231 CLR 52 O’Brien & O’Brien [2017] FamCAFC 219 Phillips v Hansford (No.2) (2020) 60 F…
Sealey & Archer [2008] FamCAFC 142
Citation 16 (Para 29)

…and need not set them out from his Honour’s judgment, save for his Honour’s comments at [48] and [81], which are as follows:[32] [31] SPS & PLS (2008) 217 FLR 164; (2008) FLC ¶93–363; (2009) 39 Fam LR 295. Warnick J was sitting as the Full Court. [32] Warnick J’s comments in SPS & PLS were cited with approval by the…
Maher and Maher [2007] FMCAfam 1211
Citation 17 (Para 4)

…herwise known as the Hindmarsh Island Bridge Case.[44] At [57] – [64] in Goode , Bryant CJ, Finn and Boland JJ said: [43] Goode v Goode (2006) 206 FLR 212; (2007) 36 Fam LR 422. [44] Tickner v Chapman (1995) 57 FCR 451. 57. This question arises from what follows from an application of the presumption of equal shared…
NBGM v Minister for Immigration and Multicultural Affairs [2006] HCA 54
Citation 18 (Para 10)

…, and any qualifications or modifications of it, as Australian law requires… [45] NBGM v Minister for Immigration and Multicultural Affairs (2006) 231 CLR 52.…
Norvill v Chapman [1995] FCA 987
Citation 19 (Para 4)

…[64] in Goode , Bryant CJ, Finn and Boland JJ said: [43] Goode v Goode (2006) 206 FLR 212; (2007) 36 Fam LR 422. [44] Tickner v Chapman (1995) 57 FCR 451. 57. This question arises from what follows from an application of the presumption of equal shared parental responsibility in s 61DA. When any parenting order is m…
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40
Citation 20 (Para 4)

…cation (1973) 38 DLR (3d) 693at 697. When Gibbs CJ in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 30–31 conceded that the Minister, in the circumstances of that case, was not obliged “to read for himself all the relevant papers”, and that it “would not be unreasonable for him to rely on…
Gronow v Gronow [1979] HCA 63
Citation 21 (Para 2)

…he primary judge’s discretionary decision is one to which the normal principles in House v The King (1936) 55 CLR 499 and Gronow v Gronow (1979) 144 CLR 513 apply. 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…
House v R [1936] HCA 40
Citation 22 (Para 2)

…[22] Consequently, the challenge to the primary judge’s discretionary decision is one to which the normal principles in House v The King (1936) 55 CLR 499 and Gronow v Gronow (1979) 144 CLR 513 apply. The primary judge’s task was a two-staged process. First, to make findings of fact as to what changes there had bee…
[1978] FAMCAFC 128 [1978] FAMCAFC 128
Citation 23 (Para 9)

…from a number of Full Court cases the relevant principles of the rule in Rice & Asplund: 11. The so-called rule in Rice and Asplund [1978] FamCAFC 128; (1979) FLC 90-725 (Rice & Asplund) is based on the notion that it will only be in a child’s best interests to expose them to further litigation if there has been a si…
Goode v Goode [2006] FMCA 13496
Citation 24 (Para 4)

…v Chapman , otherwise known as the Hindmarsh Island Bridge Case.[44] At [57] – [64] in Goode , Bryant CJ, Finn and Boland JJ said: [43] Goode v Goode (2006) 206 FLR 212; (2007) 36 Fam LR 422. [44] Tickner v Chapman (1995) 57 FCR 451. 57. This question arises from what follows from an application of the presumption of e…
Recently, in Jaynes & Rundle [2020] FAMCAFC 292
Citation 25 (Para 1)

…(2014) FLC 93-597 (“ Poisat ”) at [39]-[41]; Miller & Harrington (2008) FLC 93-383 (“ Miller & Harrington” ) at [80]-[83]; Jaynes & Rundle [2020] FamCAFC 292 at [14]). However, at whichever stage the determination is made, the rule is a manifestation of the best interests principle ( Poisat at [18], [19], [40], and…
[1967] 1 AC 551 [1967] 1 AC 551
Citation 26 (Para 4)

…imply rely on an assessment of their worth made by others: Jeffs v New Zealand Dairy Production and Marketing Board [1967] 1 AC 551 at 568–569. It is his task to evaluate them, a task he can only perform after he knows what they actually are. In a case involving a board which had a duty to “consider” a report, Las…
House v The King 63 WN 176
Citation 27 (Para 2)

…at is considered. [22] Consequently, the challenge to the primary judge’s discretionary decision is one to which the normal principles in House v The King (1936) 55 CLR 499 and Gronow v Gronow (1979) 144 CLR 513 apply. The primary judge’s task was a two-staged process. First, to make findings of fact as to what changes th…
Tickner v Chapman 400 ALR 417
Citation 28 (Para 4)

…an & Barton v Tickner, Minister for Aboriginal & Torres Strait Islander Affairs (1995) 55 FCR 316 that the Minister had failed to properly consider the report. O’Loughlin J’s comments at first instance are of relevance (at 369): The verb “consider” is a common word used daily in language and in documents; yet no cou…

Legislation Cited

Family Law Act 1975 (Cth) 60B, 60CC(2)(a)
3 mentions (from Para 9)
Administrative Decisions (Judicial Review) Act 1977 (Cth)
1 mention (from Para 4)

File number(s):	SYC 5418 of 2023
Judgment of:	JUDGE W J NEVILLE
Date of judgment:	27 June 2024
Catchwords:	FAMILY LAW – PARENTING – Father’s Application pursuant to s.65DAA to re-visit Final Orders made on an undefended basis in December 2015 when the child was two years old – long history of the Mother facilitating additional time between Father and son – Mother contends that the Father has been inconsistent and unreliable in spending overnight time with the child – while Father acknowledges a significant history of alcohol abuse but nothing in the last 18 months or thereabouts, no details were provided by the Father, whereas the Mother provided subpoenaed police records which show a very significant history of the Father being intoxicated, becoming physically aggressive and various assaults including significant dysregulation in engagements with his family – consideration of significant body of case law regarding Rice & Asplund in the light of statutory codification of the principle from that case – a form of codification of judicial discretion – Father brought no Application to vary or discharge the 2015 Orders until July 2023 – Father’s Application dismissed.
Legislation:	Family Law Act 1975 (Cth) s.60B, 60CC(2)(a) – (d), 65DAAA
Cases cited:	AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 Baisman & Cartmill [2022] FedCFamC1A 36 Carriel v Lendrum (2015) 53 Fam LR 157 Goode v Goode (2006) 206 FLR 212; (2007) 36 Fam LR 422 Katar & Sevan [2024] FedCFamC1A 49 Mahoney & Dieter [2020] FamCAFC 88 Marsden v Winch (2010) 42 Fam LR 1 Miller v Harrington (2008) 220 FLR 300; (2009) 39 Fam LR 654 NBGM v Minister for Immigration and Multicultural Affairs (2006) 231 CLR 52 O’Brien & O’Brien [2017] FamCAFC 219 Phillips v Hansford (No.2) (2020) 60 Fam LR 160 Poisat & Poisat (2014) FLC 93-597 Rice & Asplund (1978) 6 Fam LR 570; (1979) FLC 90-725 Shan & Prasad (2020) 61 Fam LR 440 SPS & PLS (2008) 217 FLR 164; (2008) FLC ¶93–363; (2009) 39 Fam LR 295 Stern v Colli (2022) 65 Fam LR 548 Swenson & Brantley (No.2) [2020] FamCAFC 205 Tickner v Chapman (1995) 57 FCR 451 Walter & Walter [2016] FamCAFC 56 Geraldine van Bueren in The International Law on the Rights of the Child, (Dordrecht: Martinus Nijhoff Publishers, 1995) M. Freeman, The moral status of children: Essays on the Rights of the Child, (The Hague: Kluwer Law International, 1997) M. Jones and L.A Basser Marks, “United Nations Convention on the Rights of the Child” a blueprint for Australia’s children,” in M. Jones and L.A Basser Marks (eds.) Children on the Agenda: the rights of Australia’s children (Chippendale, NSW: Prospect Media Pty Ltd, 2001) J. Tobin, “The Development of Children’s Rights”, Chapter 2 in Children and the Law in Australia (2^nd Edition) (eds. L. Young, M.A. Kenny, G. Monahan) (Sydney: LexisNexis, 2017)
Division:	Division…