Appeal Allowed in Halloran and Keats Case for Rehearing on Varying Parenting Orders
Intro
This case involves a family law dispute where the primary judge made interim orders altering the residence of three children from their mother to their father, following an incident in which the middle child was allegedly physically assaulted by the mother. The mother appealed the decision, arguing that the primary judge made several errors, including not giving sufficient consideration to factors such as the children's meaningful relationships with her and the likely effect of their separation from her. The court examines each ground of appeal raised by the mother and assesses whether the primary judge properly considered relevant factors in reaching his decision.|
Facts
The parties had three children, with original consent orders providing that they live with the father, who had sole parental responsibility, while spending time with the mother under professional supervision. In August, the mother sought to discharge and replace these orders. However, her applications were dismissed by a primary judge who imposed an obligation on her to demonstrate materially changed circumstances in all respects. The mother then appealed this decision, arguing procedural unfairness and erroneous application of legal principles.
IRAC Analysis
Issue: The central issue in this case is the mother's application to vary the June 2018 orders concerning parenting. This involves two aspects; the application of the Rice v Asplund guideline principles, and the effect of Orders 20-22 and Notation A on the proceedings.
Rule: The principle laid out in Rice v Asplund [1979] FamCA 84; (1979) FLC 90-725, is that once an order has been made regarding children’s arrangements, there must be a significant change in circumstances to justify a court revisiting those orders. In this case, it is also important to consider section 117(1) of the Family Law Act 1975 (Cth), which states that each party should bear their own costs, unless there are reasons for departure from this rule.
Application: The judge found that the mother's applications were not properly determined according to law due to the artificial construct imposed by Orders 20-22 and Notation A. Therefore, these orders were discharged, and the whole proceedings were remitted for re-hearing. This re-hearing will occur in circumstances where the parties are not hindered or distracted by Orders 20-22 and where the mother is required to adduce evidence demonstrating a material change in circumstances justifying her applications under Part VII of the Act.
The judge dismissed the mother’s costs application as no sufficient reason was advanced for a departure from s 117(1) of the Family Law Act, which requires each party to bear his or her own costs.
Conclusion: The appeal was allowed due to errors of law. The dismissal order and consequential costs orders were discharged as they were premised entirely on the validity of the impeached dismissal order. The proceedings are remitted for re-hearing, with all parties given notice of what they need to demonstrate.
Take home analysis: This case underscores the importance of the Rice v Asplund guideline principles in varying parenting orders and the necessity for a material change in circumstances to justify such variations. It also highlights the importance of each party bearing their own costs unless there are valid reasons for departure from this rule. Lastly, it demonstrates that when an error of law is identified, the appeal can be allowed, and the case remitted for re-hearing with guidance provided for future proceedings.
Parties’ Details
Counsel for the Appellant: Mr Duane
Solicitor for the Appellant: Farrar Gesini Dunn
Counsel for the Respondent: Ms Tabbernor
Solicitor for the Respondent: Robinson + McGuinness