Woods & Carman - [2022] FedCFamC1F 545

Federal Circuit and Family Court of Australia
(DIVISION 1)
Woods & Carman [2022] FedCFamC1F 545

File number(s): WOC 172 of 2017

Judgment of: ALTOBELLI J

Date of judgment: 4 July 2022

Catchwords: FAMILY LAW – PARENTING – Rice & Asplund – Where father seeks variation of consent orders on the basis of a change of circumstance being that the mother contravened the consent orders by relocating with the child – Where the mother seeks that the application be dismissed on the basis that the father relocated internationally thereby rendering the operation of the consent orders futile – Finding that in circumstances where the subject child is now aged 17, continuing litigation in a high conflict and high mistrust co-parenting relationship would not be in the best interests of the child – Application dismissed.

Legislation: Family Law Act 1975 (Cth)

Cases cited:
Baisman & Cartmill [2022] FedCFamC1A 36

Rice & Asplund (1979) FLC 90–725; [1978] FamCA 84.

Stern & Colli [2022] FedCFamC1A 95

Division: Division 1 First Instance

Number of paragraphs: 18

Date of hearing: 4 July 2022

Place: Sydney

The Applicant: Litigant in person

The Respondent: Litigant in person
ORDERS

WOC172 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR CARMAN

Applicant

AND:
MS WOODS

Respondent

order made by:

ALTOBELLI J

DATE OF ORDER:

4 JULY 2022

THE COURT ORDERS THAT:
1.The Initiating Application filed by the Father on 4 February 2021 is dismissed.
2.The Application in a Case filed by the Father on 4 February 2021 is dismissed.
3.The Application in a Proceeding filed by the Father on 31 March 2022 is dismissed.
4.All other extant applications are dismissed.

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 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Woods & Carman has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
(Revised from Transcript)
ALTOBELLI J:

This case is about X, who was born in 2005. X will shortly turn 17. The father is the Applicant in the applications heard today and the mother is the Respondent. The proceedings took place by way of Microsoft Teams, the mother located in rural Victoria, and the father who is currently living in Country H but tells me that he is shortly to return to Australia.
The genesis of this litigation appears to be the consent…

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 Woods & Carman

Details

AGLC: Woods & Carman [2022] FedCFamC1F 545
Case: [2022] FedCFamC1F 545
Decision Date

CaseChat Overview and Summary

The case of Woods & Carman involved a dispute concerning the change of circumstances in a parenting order. The Full Court of the Family Court of Australia was tasked with determining whether the father had demonstrated sufficient changes to warrant a rehearing of the case. The legal issues centred on whether the father had established a prima facie case of changed circumstances and if these changes were sufficient to justify a new hearing, considering the best interests of the child. The court applied the test from Rice & Asplund, focusing on whether the new events or changed circumstances were sufficient to provoke a new inquiry. The court also considered the mandatory requirement under section 69ZQ(1)(a) of the Family Law Act 1975 to decide which issues require full investigation and hearing.

The Full Court examined the evidence presented by the father, taking it at its highest, due to the absence of cross-examination. The court had to assess whether the changes in circumstances outweighed the negative impact of reopening litigation, focusing on the preference to make final orders that are least likely to lead to further proceedings. The court applied the two-staged process, first making findings of fact about the changes in circumstances since the 2015 orders, and then assessing if these changes were sufficient to provoke a new inquiry. The challenge to the primary judge's discretionary decision was subject to the principles in House v R and Gronow v Gronow, focusing on the best interests of the child. The court's decision hinged on whether the father had demonstrated that the changes were significant enough to warrant a new hearing.

Ultimately, the Full Court found that the father had not established a sufficient change of circumstances to justify a new hearing. The court held that the father's evidence, while accepted, did not meet the threshold required to provoke a new inquiry. The changes in circumstances were not deemed significant enough to warrant reopening litigation, which would not be in the best interests of the child. The Full Court upheld the primary judge's decision, confirming that the changes were not sufficient to justify a new hearing. The court emphasised the importance of avoiding repeated litigation for the sake of the child's welfare.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In the Full Court case Stern & Colli [2022] FedCFamC1A 95, the Court summarises the relevant law:[33] In Marsden & Winch this Court said:57. In Miller & Harrington (supra) the Court posed the question:105.Adapting the language used by Warnick J in SPS and PLS [supra], the question for consideration is: assuming the evidence of the [applicant] is accepted, is there a sufficient change of circumstances shown to justify embarking on a hearing?58. That question might be better formulated in another way in the following proposition, namely that there is a requirement:(1) For a prima facie case of changed circumstances to have been established; and(2) For a consideration as to whether that case is a sufficient change of circumstances to justify embarking on a hearing.[34] These remarks were applied or referred to without disapproval by subsequent Full Courts in Searson & Searson (2017) FLC 93-788 and Shan & Prasad (2020) 61 Fam LR 440 at [41] .[35] In Defrey & Radnor [2021] FamCAFC 67 after considering what was said in SPS and PLS (2008) FLC 93-363 at [81] and [84], Miller & Harrington (2008) FLC 93-383 at [105] and Marsden v Winch at [58] the Full Court summarised the law concerning Rice and Asplund as follows:19.In our view, the Rice & Asplund test applies to all applications which seek to revisit parenting orders. Sometimes the test will be easily satisfied even though the issues to reconsider are major ones and sometimes the test will be easily satisfied even though the issues to be revisited are relatively minor in character. In both situations, the overarching test is to be applied, namely, (having regard to the best interests of the child) new events or changed circumstances have to be sufficient to provoke a new inquiry.20.It is also useful when considering, as a preliminary matter, what issues a parent might be permitted to re-litigate, to remember that under s 69ZQ(1)(a) of the Family Law Act 1975 (Cth) (“the Act”), there is a mandatory requirement to decide which of these issues in the proceedings require full investigation and hearing.21.The rule in Rice & Asplund involves the exercise of discretion and not merely a process of making factual findings. That is because the “rule” is a manifestation of the best interests principle. All s 60CC(2) and (3) matters, so far as they are relevant, must be considered, to the extent that they can be, based on the material before the court. The rule focuses particularly on s 60CC(3)(l) and the preference to make final orders in parenting matters that are least likely to lead to the institution of further proceedings in relation to the child. Axiomatically that is because unless other considerations are more weighty, it is not in the best interests of a child for that child to be the subject of repeated litigation between his/her parents. There is a focus in an application of this kind upon the change(s) in circumstances that outweigh the negative impact of reopening litigation. Although when considering the preliminary issue, if cross-examination is not permitted, then the evidence of the father is to be taken at its highest, and it is not only the father’s evidence that is considered.22.Consequently, the challenge to the primary judge’s discretionary decision is one to which the normal principles in House v R (1936) 55 CLR 499 and Gronow v Gronow (1979) 144 CLR 513 apply. The primary judge’s task was a two-staged process. First, to make findings of fact as to what changes there had been in circumstances since the making of the 2015 orders and secondly, to assess whether or not the father had established that these changes are sufficient to provoke a new inquiry, or put in another way, whether the father has established a prima facie case of changed circumstances that would justify embarking on a second contested parenting hearing as being in the child’s best interests.the evidence

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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File number(s):	WOC 172 of 2017
Judgment of:	ALTOBELLI J
Date of judgment:	4 July 2022
Catchwords:	FAMILY LAW – PARENTING – Rice & Asplund – Where father seeks variation of consent orders on the basis of a change of circumstance being that the mother contravened the consent orders by relocating with the child – Where the mother seeks that the application be dismissed on the basis that the father relocated internationally thereby rendering the operation of the consent orders futile – Finding that in circumstances where the subject child is now aged 17, continuing litigation in a high conflict and high mistrust co-parenting relationship would not be in the best interests of the child – Application dismissed.
Legislation:	Family Law Act 1975 (Cth)
Cases cited:	Baisman & Cartmill [2022] FedCFamC1A 36 Rice & Asplund (1979) FLC 90–725; [1978] FamCA 84. Stern & Colli [2022] FedCFamC1A 95
Division:	Division 1 First Instance
Number of paragraphs:	18
Date of hearing:	4 July 2022
Place:	Sydney
The Applicant:	Litigant in person
The Respondent:	Litigant in person

WOC172 of 2017
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR CARMAN Applicant
AND:	MS WOODS Respondent

order made by:	ALTOBELLI J
DATE OF ORDER:	4 JULY 2022