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Swanson & Swanson

Swanson & Swanson

Case [2022] FedCFamC2F 1705 13 December 2022

Best Interests of the Child

Final Parenting Orders

Significant Change in Circumstances

Re-opening of Parenting Proceedings

Domestic Violence

Parental Responsibility

Family Law

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Federal Circuit and Family Court of Australia
(DIVISION 2)
Swanson & Swanson [2022] FedCFamC2F 1705

File number(s): NCC 819 of 2022

Judgment of: JUDGE KEARNEY

Date of judgment: 13 December 2022

Catchwords: FAMILY LAW – parenting - threshold – where final parenting orders for children aged 13, 10 and 6 were made in the absence of a party who was incarcerated at the time for multiple family violence offences – where no contact with children for over four years - to determine if new parenting application be dismissed summarily relying on principle espoused in Rice & Asplund – where a significant change in circumstances is found but a lack of insight and contrition for past family violence and the impact on children – not in best interests of children to re-open proceedings – application dismissed with final orders from 2018 confirmed

Legislation:
Family Law Act 1975 (Cth) ss 60CA, 60CC, 69ZN

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 10.09, 10.13

Cases cited:
Barbey & Tuttle (2013) FLC 93-534

Carriel & Lendrum [2015] FamCAFC 43

Chetti & Bhavalakar [2022] FedCFamC2F 194

Clifford & Mountford [2006] FMCAfam 450

Defrey & Radnor [2021] FamCAFC 67

Gingham v Gingham [2013] FamCA 727

King & Finneran [2001] FamCA 344

Malak & Malak (2016) FLC 93-718

Marsden & Winch [2009] FamCAFC 152

Rice & Asplund [1978] FamCA 84

Richardson & Colombo [2021] FedCFamC1A 35

SPS & PLS [2008] FamCAFC 16

Stern & Colli [2022] FedCFamC1A 95

Thomas & Hogan [2013] FCCA 1108

Walter & Walter [2016] FamCAFC 56

Division: Division 2 Family Law

Number of paragraphs: 129

Date of hearing: 24 November 2022

Place: Newcastle

Solicitor for the Applicant: Mr Lindeman, Lindeman Lawyers

Counsel for the Respondent: Mr Liedermann

Solicitor for the Respondent: Kenneth Harrison Solicitor & Attorney
ORDERS

NCC 819 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR SWANSON

Applicant

AND:
MS SWANSON

Respondent

order made by:

JUDGE KEARNEY

DATE OF ORDER:

13 December 2022

THE COURT ORDERS THAT:
1.The final orders made 5 September 2018 are confirmed.
2.All outstanding applications are dismissed.
3.In the event that a party wishes to make an application for costs, then by 4.00pm on Tuesday 10 January 2023 such party is to file and serve:
(a)an application in a proceeding;
(b)an affidavit in support; and
(c)a financial statement.

THE COURT NOTES THAT:
A.Should a party comply with Order 3, THEN the Court will make orders in chambers setting the application down for hearing before Judge Kearney as well as directions in support of such hearing.

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

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 Swanson & Swanson

Details

AGLC: Swanson & Swanson [2022] FedCFamC2F 1705
Case: [2022] FedCFamC2F 1705
Decision Date

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, Swanson (the father) sought to re-open parenting proceedings in relation to three children that were made in his absence while he was incarcerated for multiple family violence offences. The mother opposed the application. The court considered whether the father’s application should be summarily dismissed pursuant to the principle in Rice & Asplund, and whether any costs order should be made. The court found that the final orders made in the father's absence should be confirmed. The father's application did not demonstrate a sufficient change in circumstances to warrant a re-opening of the parenting proceedings. The father's lack of insight and contrition for his past offending, and the risk of adverse impacts on the children from a change in their circumstances and their exposure to the litigation outweighed any minimal benefit the children may obtain from a re-introduction to him. The court dismissed the father's application and all outstanding applications, and noted that should a party wish to make an application for costs, then they are to file and serve an application in a proceeding, an affidavit in support and a financial statement by a specified date.

Orders