WALLIN & WALLIN - [2020] FamCA 774

FAMILY COURT OF AUSTRALIA

WALLIN & WALLIN

[2020] FamCA 774

FAMILY LAW – PARENTING – where father brings a parenting application three years after final parenting orders – whether new facts and changed circumstances necessitate a fresh investigation to safeguard the best interests of the children.

FAMILY LAW – PARENTING – application to re-open a parenting case – relevant considerations.

FAMILY LAW – PARENTING – Family Report – views of children.

Family Law Act 1975 (Cth)

Freeman & Freeman [1986] FamCA 23
Harvey & Harvey [2018] FamCA 516
Re D (A Child) [2019] UKSC 42
Rice & Asplund (1979) FLC 90-725
Bryce & Bryce [2020] FamCA 653

APPLICANT:

Mr Wallin

RESPONDENT:

Ms Wallin

FILE NUMBER:

MLC

10946

2014

DATE DELIVERED:

27 August 2020

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Bennett J

HEARING DATE:

27 August 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Dr Ingleby

SOLICITOR FOR THE APPLICANT:

Gadens Lawyers

COUNSEL FOR THE RESPONDENT:

In person

SOLICITOR FOR THE RESPONDENT:

Orders

I allow the father’s Application in a Case filed 12 August 2020 so that the said Application, the mother’s Response thereto filed 24 August 2020 and the affidavit filed by each parent in support of the Application and the Response are evidence in the parenting proceedings.
Pursuant to section 62G(2) of the Family Law Act 1975 a Family Report be prepared to assist the Court to determine whether there has been a sufficient change in circumstances to warrant the court again determining proper parenting arrangements for the children X born … 2006, W born … 2007, Y born … 2008, and Z born … 2009 (“the children”).
The parties and the children attend upon a Family Consultant nominated by the Director of Child Dispute Services in the Melbourne Registry of this Court for the purposes of the preparation of a Family Report. The parties comply with all reasonable directions as to attendance by himself/herself and the children upon the said Family Consultant. In the event that the assessment (or any part thereof) is conducted by video conference, any recording of the video conference is prohibited.
The Family Report be commenced as soon as practicable and be released by not later than 26 October 2020 AND IT IS NOTED THAT a report was prepared by Dr B in February 2015 and also on the file are reports of Dr C filed 9 December 2015, 21 November 2016 and 16 January 2017.
The Family Consultant give the court a report on the following:
(a)       Whether the circumstances of the children (or any of them) are such that the court should re-consider all parenting arrangements contained in the Order made on 28 February 2017;
(b)       Whether the circumstances of the children (or any of them) are such that the court should re-consider any particular or isolated aspect of the parenting arrangements contained in the Order made 28 February 2017;
(c)       The views of each child in relation to:-
(i)His/her current parenting arrangements;
(ii)Further litigation between the parents in relation…

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 WALLIN & WALLIN

Details

AGLC: WALLIN & WALLIN [2020] FamCA 774
Case: [2020] FamCA 774
Decision Date: 27 August 2020

CaseChat Overview and Summary

In the matter of *Wallin & Wallin*, the father sought to re-open parenting orders made on 28 February 2017, approximately three years after their finalisation. The dispute concerned the appropriate parenting arrangements for the parties' four children. The application was heard by Bennett J in the Family Court of Australia.

The central legal issue before the Court was whether new facts and changed circumstances had arisen since the making of the final parenting orders, necessitating a fresh investigation into the children's best interests. This involved considering the threshold for re-opening a final parenting case and the relevant factors to be taken into account in such an application. The Court also had to consider the weight to be given to the views of the children and the content of any Family Report prepared for the proceedings.

Bennett J allowed the father's application to admit the filed documents as evidence. Crucially, the Court ordered the preparation of a Family Report pursuant to section 62G(2) of the *Family Law Act 1975*. This report was to assist the Court in determining if there had been a sufficient change in circumstances to warrant re-considering the parenting arrangements. The Family Consultant was directed to report on whether the children's circumstances required a re-evaluation of all or specific aspects of the existing orders, the children's views on their current arrangements and further litigation, measures to shield the children from parental conflict, and any other relevant matters concerning their care, welfare, or development. The Court noted previous Family Reports and authorised the consultant to review all filed documents and any subpoenaed materials. The matter was adjourned for a hearing to consider cross-examination of the Family Consultant and submissions on how the report should inform the Court's decision.

Orders

Orders of the court

I allow the father’s Application in a Case filed 12 August 2020 so that the said Application, the mother’s Response thereto filed 24 August 2020 and the affidavit filed by each parent in support of the Application and the Response are evidence in the parenting proceedings.

Pursuant to section 62G(2) of the Family Law Act 1975 a Family Report be prepared to assist the Court to determine whether there has been a sufficient change in circumstances to warrant the court again determining proper parenting arrangements for the children X born … 2006, W born … 2007, Y born … 2008, and Z born … 2009 (“the children”).

The parties and the children attend upon a Family Consultant nominated by the Director of Child Dispute Services in the Melbourne Registry of this Court for the purposes of the preparation of a Family Report. The parties comply with all reasonable directions as to attendance by himself/herself and the children upon the said Family Consultant. In the event that the assessment (or any part thereof) is conducted by video conference, any recording of the video conference is prohibited.

The Family Report be commenced as soon as practicable and be released by not later than 26 October 2020 AND IT IS NOTED THAT a report was prepared by Dr B in February 2015 and also on the file are reports of Dr C filed 9 December 2015, 21 November 2016 and 16 January 2017.

The Family Consultant give the court a report on the following:

(a) Whether the circumstances of the children (or any of them) are such that the court should re-consider all parenting arrangements contained in the Order made on 28 February 2017;

(b) Whether the circumstances of the children (or any of them) are such that the court should re-consider any particular or isolated aspect of the parenting arrangements contained in the Order made 28 February 2017;

(i) His/her current parenting arrangements;

(ii) Further litigation between the parents in relation to parenting arrangements –

unless it would be inappropriate to do so because of a child’s age or maturity or any other circumstance including, but not limited to, the likelihood of the children (or any of them) being made to feel responsible for the outcome of the proceedings or the disappointment or otherwise of the parents (or either of them).

(d) What can be done to shield the children (or any of them) from the negative impact of high parental conflict;

(e) Any other matter which relates to the care, welfare or development of the children (or any of them) that the Family Consultant considers ought to be brought to the attention of the Court.

For the avoidance of doubt the Family Consultant, be and is hereby authorized to have reference to:-

(a) all documents filed in these proceedings;

(b) any documents produced on subpoenae and released for inspection by all parties;

This matter be adjourned to a date to be fixed approximately two weeks after the release of the s 62G(2) report provided for in this Order, or so soon thereafter as I am reasonably available, for the purpose of hearing any cross examination of the Family Consultant and submissions on how the evidence of the Family Consultant should inform my decision on the Rice & Asplund issue.

Any party who seeks to cross examine the Family Consultant on the adjourned date notify my Associate – ... and Child Dispute Services – ... - accordingly not later than two clear working days following the release of the S62G(2) report.

IT IS DIRECTED:

That my reasons for decision this day be transcribed and, when settled, a copy be provided to the parties and the original be placed on the Court file.

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

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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