Reager and Coldham (No 2) - [2021] FCCA 1620

FEDERAL CIRCUIT COURT OF AUSTRALIA
Reager & Coldham (No 2) [2021] FCCA 1620

File number(s): PAC 2234 of 2017

Judgment of: JUDGE NEWBRUN

Date of judgment: 16 July 2021

Catchwords: FAMILY LAW – parenting applications by mother – prior final parenting orders – mother’s applications for fresh parenting orders permitted pursuant to the rule in Rice & Asplund

Legislation: Family Law Act 1975 (Cth), s 62G(2)

Cases cited:
Marsden & Winch [2009] FamCAFC 152

Rice and Asplund (1979) FLC 90-725

Trewitt & Brock [2021] FCCA 1255

Yapp & Wyndham [2021] FamCAFC 80

Number of paragraphs: 35

Date of last submission/s: 8 July 2021

Date of hearing: 8 July 2021

Place: Parramatta

Solicitor for the Applicant: Mr Heazlewood

Solicitor for the Respondent: Ms Rysiok

Solicitor for the Independent Children's Lawyer: Mr Holmes
ORDERS

PAC 2234 of 2017

BETWEEN:
MR REAGER

Applicant

AND:
MS COLDHAM

Respondent

ORDER MADE BY:

JUDGE NEWBRUN

DATE OF ORDER:

16 JULY 2021

PENDING FURTHER ORDER THE COURT ORDERS THAT:
1.That there has been a significant change in circumstances since the Court’s Final Orders of 17 February 2021 such that, acting in the best interests of the child, X born in 2010, the parties should be permitted to seek fresh parenting Orders in relation to the child.
2.Pursuant to section 62G(2) of the Family Law Act 1975 (Cth) (“the Act”) the parties and the children of the relationship shall attend upon a Family Consultant nominated by the Dispute Resolution Coordinator of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released by 31 October 2021.
3.The Family Report shall deal with the following matters:
(a)Any views expressed by the child the subject of parenting Orders sought in this case, provided that the child/ren shall not be required to express a view in relation to any matter.
(b)The nature of the relationships of the child with each of the child’s parents and with significant other persons;
(c)The willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent.
(d)The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i)either of the parents: or
(ii)any other child, or significant person, with whom the child has/have been living.

(e)The practical difficulty and expense of the child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
(f)The capacity of each parent, or another person, to provide for the needs of the child, including emotional and intellectual needs.
(g)The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) other child and of either of the child)’s parents and any other characteristics of the child that the reporter thinks are relevant.
(h)Each parent’s…

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 Reager and Coldham (No 2)

Details

AGLC: Reager and Coldham (No 2) [2021] FCCA 1620
Case: [2021] FCCA 1620
Decision Date: 16 July 2021

CaseChat Overview and Summary

In Reager and Coldham (No 2), Judge Newbrun of the Federal Circuit Court of Australia considered parenting applications made by a mother concerning her child, X, born in 2010. These applications were made subsequent to final parenting orders previously made by the Court on 17 February 2021. The central dispute revolved around whether the mother should be permitted to seek fresh parenting orders, notwithstanding the existence of prior final orders.

The primary legal issue before the Court was whether there had been a significant change in circumstances since the final parenting orders were made, such that it would be in the best interests of the child, X, to allow the parties to seek new orders. This required the Court to consider the application of the rule in *Rice & Asplund*, which governs when fresh parenting applications can be entertained after final orders have been made. The Court also had to determine the scope and content of a family report to be prepared for the purposes of assessing the child's best interests.

Judge Newbrun reasoned that a significant change in circumstances had occurred, justifying a departure from the previous final orders. Applying the principles established in *Rice & Asplund*, the Court found that it was in the best interests of X to permit the parties to seek fresh parenting orders. Consequently, the Court ordered that the parties and the children attend upon a Family Consultant for the preparation of a family report. The report was directed to address a comprehensive range of matters relevant to X's best interests, including the child's views (without compulsion), relationships with parents and significant others, parental capacity to facilitate contact, the likely effect of changes in circumstances, practicalities of contact, parental capacity to provide for needs, and any family violence. The Court also directed that the preparation of the family report be expedited.

Orders

Orders of the court

PENDING FURTHER ORDER THE COURT ORDERS THAT:

1. That there has been a significant change in circumstances since the Court’s Final Orders of 17 February 2021 such that, acting in the best interests of the child, X born in 2010, the parties should be permitted to seek fresh parenting Orders in relation to the child.

2. Pursuant to section 62G(2) of the Family Law Act 1975 (Cth) (“the Act”) the parties and the children of the relationship shall attend upon a Family Consultant nominated by the Dispute Resolution Coordinator of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released by 31 October 2021.

3. The Family Report shall deal with the following matters:

(a) Any views expressed by the child the subject of parenting Orders sought in this case, provided that the child/ren shall not be required to express a view in relation to any matter.

(b) The nature of the relationships of the child with each of the child’s parents and with significant other persons;

(c) The willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent.

(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

(i) either of the parents: or

(ii) any other child, or significant person, with whom the child has/have been living.

(e) The practical difficulty and expense of the child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.

(f) The capacity of each parent, or another person, to provide for the needs of the child, including emotional and intellectual needs.

(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) other child and of either of the child)’s parents and any other characteristics of the child that the reporter thinks are relevant.

(h) Each parent’s attitude to the child and to the responsibilities of parenthood.

(i) Any family violence involving the child or a member of the child’s family.

4. The parties shall attend all appointments with the Family Consultant and shall ensure the subject child attends all appointments with the Family Consultant, as requested by the Family Consultant.

5. The Family Consultant may inspect the Court file, and any documents produced on subpoena access to which has been granted to a party or the Independent Children’s Lawyer.

The Court directs that the preparation of the above Family Report be expedited.

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.

IT IS NOTED that publication of this judgment under the pseudonym Reager & Coldham (No 2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	PAC 2234 of 2017
Judgment of:	JUDGE NEWBRUN
Date of judgment:	16 July 2021
Catchwords:	FAMILY LAW – parenting applications by mother – prior final parenting orders – mother’s applications for fresh parenting orders permitted pursuant to the rule in Rice & Asplund
Legislation:	Family Law Act 1975 (Cth), s 62G(2)
Cases cited:	Marsden & Winch [2009] FamCAFC 152 Rice and Asplund (1979) FLC 90-725 Trewitt & Brock [2021] FCCA 1255 Yapp & Wyndham [2021] FamCAFC 80
Number of paragraphs:	35
Date of last submission/s:	8 July 2021
Date of hearing:	8 July 2021
Place:	Parramatta
Solicitor for the Applicant:	Mr Heazlewood
Solicitor for the Respondent:	Ms Rysiok
Solicitor for the Independent Children's Lawyer:	Mr Holmes

ORDER MADE BY:	JUDGE NEWBRUN
DATE OF ORDER:	16 JULY 2021