Swenson & Brantley (No.2)

Case [2020] FamCAFC 205

FAMILY COURT OF AUSTRALIA

SWENSON & BRANTLEY (NO. 2) [2020] FamCAFC 205
FAMILY LAW – APPEAL – PARENTING – Where the primary judge dismissed the appellant’s application to vary final parenting orders made in 2015 – Principle in Rice and Asplund (1979) FLC 90-725 discussed – Where it was not in the child’s best interests for the parenting orders to be reconsidered – Where the primary judge’s approach was fully in accord with well-established principles – Where the primary judge considered and explained why all of the circumstances did not justify a further hearing on the parenting issues – Adequate reasons – Appeal dismissed – Appellant to pay the respondent’s costs in a fixed sum.
Family Law Act 1975 (Cth) s 117(2A)
Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
D and Y (1995) FLC 92-581; [1995] FamCA 146
Marsden v Winch (2009) 42 Fam LR 1; [2009] FamCAFC 152
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
Rice and Asplund (1979) FLC 90-725; [1978] FamCA 84
SPS and PLS (2008) FLC 93-363; [2008] FamCAFC 16
APPELLANT: Ms Swenson
RESPONDENT: Mr Brantley
FILE NUMBER: DGC 2935 of 2018
APPEAL NUMBER: SOA 52 of 2019
DATE DELIVERED: 19 August 2020
PLACE DELIVERED: Sydney
PLACE HEARD: Melbourne (via videolink)
JUDGMENT OF: Ainslie-Wallace, Aldridge & Austin JJ
HEARING DATE: 19 August 2020
LOWER COURT JURISDICTION: Federal Circuit Court of Australia
LOWER COURT JUDGMENT DATE: 2 September 2019
LOWER COURT MNC: [2020] FCCA 2438

REPRESENTATION

COUNSEL FOR THE APPELLANT: Dr Smith with Mr Kanarev
SOLICITOR FOR THE APPELLANT: Pentana Stanton Lawyers
COUNSEL FOR THE RESPONDENT: Ms Vohra SC
SOLICITOR FOR THE RESPONDENT: Emera Smith Family Law

Orders made on 19 August 2020

  1. The appeal against the orders of a judge of the Federal Circuit Court of Australia made on 29 April 2019 is dismissed.

  2. The appellant pay the respondent’s costs of the appeal fixed in the sum of $19,124.55.

  3. The injunction made by Strickland J on 3 July 2020 to continue until the costs order is paid in full.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Swenson & Brantley (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SOA 52 of 2019
File Number: DGC 2935 of 2018

Ms Swenson

Appellant

And

Mr Brantley

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Aldridge J

Introduction

  1. Ms Swenson (“the appellant”) filed an Amended Initiating Application on 28 February 2019 in which she sought to have the Federal Circuit…

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AGLC
Swenson & Brantley (No.2) [2020] FamCAFC 205
Case
[2020] FamCAFC 205
Decision Date

CaseChat Overview and Summary

In this family law case, the appellant sought to appeal the decision of the primary judge to dismiss their application to vary final parenting orders made in 2015. The appeal was heard in the Family Court of Australia. The primary judge had rejected the appellant's application for variation of the parenting orders on the basis that it was not in the child's best interests to reconsider the orders. The appellant argued that the primary judge's decision was flawed and sought to have the orders varied.

The legal issues before the court were whether the primary judge had adequately considered all the circumstances and applied the correct legal principles in dismissing the appellant's application. The court was required to determine if the primary judge had erred in law or in fact, and whether the appeal should be allowed. The court also needed to consider whether the primary judge had provided adequate reasons for their decision.

The court found that the primary judge had correctly applied the well-established principles of the law in relation to varying parenting orders. The court held that the primary judge had considered all relevant circumstances and provided adequate reasons for dismissing the appellant's application. The court found that it was not in the child's best interests to have the parenting orders reconsidered. The appeal was dismissed and the appellant was ordered to pay the respondent's costs in a fixed sum.

Orders

Orders of the court

Orders made on 19 August 2020

1. The appeal against the orders of a judge of the Federal Circuit Court of Australia made on 29 April 2019 is dismissed.

2. The appellant pay the respondent’s costs of the appeal fixed in the sum of $19,124.55.

3. The injunction made by Strickland J on 3 July 2020 to continue until the costs order is paid in full.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Swenson & Brantley (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

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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