Terrill & Deighton (No 2) - [2023] FedCFamC2F 978

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Terrill & Deighton (No 2) [2023] FedCFamC2F 978

File number(s): MLC 9773 of 2021

Judgment of: JUDGE O'SHANNESSY

Date of judgment: 14 August 2023

Catchwords: FAMILY LAW – Rice & Asplund decision – recent consent orders for children to live with father in Melbourne and mother in Queensland – father alleges subversion of very recent orders – mother alleges emotional distress of children new fact and circumstance – decision that Rice & Asplund be determined at final hearing not on first return on papers.

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

Cases cited:
Carriel & Lendrun [2015] FamCAFC 43; (2015) FLC 93-046.

Grace & Grace [2020] FamCAFC 286; (2020) FLC 93-996.

Marsden v Winch [2009] FamCAFC 152; (2009) 42 Fam LR 1.

Rice & Asplund [1978] FamCAFC 128; [1978] FamCA 84; [1979] FLC 90-725; (1978) 6 Fam LR 570.

SPS and PLS [2008] FamCAFC 16; (2008) FLC 93-363.

Division: Division 2 Family Law

Number of paragraphs: 29

Date of hearing: 24 July 2023

Place: Melbourne

Solicitor for the Applicant: Mr I. Robertson, Robertson Legal & Conveyancing Lawyers Pty Ltd

The Respondent: Litigant in person
ORDERS

MLC 9773 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR TERRILL

Applicant

AND:
MS DEIGHTON

Respondent

ORDER MADE BY:

JUDGE O'SHANNESSY

DATE OF ORDER:

14 AUGUST 2023

THE COURT ORDERS THAT:
1.The matter be adjourned to 19 October 2023 at 12pm for Directions Hearing at the Federal Circuit and Family Court of Australia at Melbourne before a Judicial Registrar via Microsoft Teams for the purposes of trial directions.
2.The parties are at liberty to provide these orders and the orders of 24 July 2023 and these reasons and the reasons of 24 July 2023 be made available to Child Protection and/or any investigating police officer.

AND THE COURT NOTES THAT:
A.The Court refused to accede to the Father’s application that the Mother’s application be dismissed on the principles of Rice v Asplund on a hearing on the papers and the Court considered but refused to dismiss the Father’s application on the principles of Rice v Asplund and each of those applications remain alive for final hearing as explained in the reasons.
B.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
C.Affected unrepresented parties may apply to the court and then to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.
D.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
E.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to…

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 Terrill & Deighton (No 2)

Details

AGLC: Terrill & Deighton (No 2) [2023] FedCFamC2F 978
Case: [2023] FedCFamC2F 978
Decision Date

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia, Division 2, considered an application by the father, Mr Terrill, to modify existing parenting orders and an application by the mother, Ms Deighton, to reverse recent orders regarding the residence of their three children. The father sought to limit the children's time spent with the mother to within 200 kilometres of Melbourne, citing the mother's alleged non-compliance with the existing orders. The mother sought to have the children live with her in Queensland, arguing that their emotional distress upon returning to Melbourne justified a change in the orders. The court needed to determine whether the principles of Rice v Asplund applied, which generally discourage frequent changes to parenting orders without significant changes in circumstances.

Judge O'SHANNESSY examined the legal principles governing changes to parenting orders, emphasizing the paramount importance of the children's best interests. The court considered the recent consent orders, which allowed the children to spend time with both parents, and the subsequent disputes. The father alleged that the mother acted in bad faith by not returning the children as ordered, while the mother cited the children's emotional distress and threats of self-harm as new circumstances. The court concluded that while the mother's allegations of distress were concerning, the best interests of the children, as well as the principles of Rice v Asplund, should be fully explored at a final hearing rather than on the papers. The court deferred the decision on the Rice v Asplund principles until the final hearing, ordering the matter to be adjourned for trial directions.

The court refused to dismiss the mother's application outright and set the matter for a final hearing to fully explore the children's welfare and the circumstances surrounding the alleged non-compliance and emotional distress. The father's application for immediate variation of orders was to be considered at the final hearing as well. The court emphasized the importance of avoiding further litigation and potential harm to the children while ensuring that their best interests were ultimately protected.

Orders