TRITTON & DUCATTI

In the matter of *Tritton & Ducati*, McClelland J of the Family Court of Australia considered applications by the father to vary interim parenting and property orders previously made by consent. The dispute involved the father seeking to alter existing arrangements for child changeovers and exclusive occupation of a property, arguing that his circumstances had changed since the orders were made.

The court was required to determine whether the father had discharged the onus of establishing that changed circumstances rendered the enforcement of the consent orders unjust, particularly in relation to the parenting orders and the application for exclusive occupation of the property. The court also considered the father's failure to address the factors stipulated in section 60CC of the *Family Law Act 1975* (Cth) in his application and submissions concerning the children.

McClelland J applied the principles from *Adam P. Brown Male Fashions Pty Limited v Philip Morris Incorporated* and *Cutler v Wandsworth Stadium Limited*, which establish that a court has the power to amend or vary interlocutory orders when new facts arise or are discovered that make enforcement unjust. The court found that while litigation undoubtedly imposes emotional and financial costs, the father had not discharged his onus of proof. Specifically, the father failed to provide sufficient evidence of his current income or other relevant financial circumstances, despite the requirement for full and frank disclosure under Rule 13.04(1)(a) of the Family Law Rules. The court noted that the father's claimed changed circumstances, such as stress from litigation and adjustments to his working arrangements, did not, in the absence of financial disclosure, establish that enforcement of the consent orders would be unjust.

The court ordered that the father's applications for exclusive occupation of the property and certain other variations be dismissed or adjourned. However, the court did vary the interim parenting orders by adding a specific provision regarding child changeovers, requiring the collecting person to wait outside the property boundary. The parties were also granted liberty to apply and agreed to attend mediation.