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Children – father’s interim application to vary parenting order so as to commence equal time before trial dismissed

In Findlay & Reis [2020] FCCA 425 (28 February 2020) Judge Hughes dismissed an interim application by the father to vary parenting orders which had been in force for six years, by which the children (now 13 and 11) spent four nights per fortnight with him. His application sought equal time. The mother’s application for dismissal was listed as a preliminary hearing.

The father’s case was that the children had repeatedly asked to spend week about time with him ([45]), that they were sufficiently mature to have more weight given to their views and that he was in a stable new relationship ([68]).

After citing Rice & Asplund [1978] FamCA 84 and SPS & PLS [2008] FamCAFC 16 her Honour said (from [65]):

“Their Honours [in Marsden & Winch [2009] FamCAFC 152] set out a two-step process to be followed in which there was 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.

[66] (…) The mother said the only occasion on which…[equal time] was raised with her was…the result of the father’s influence and a desire by the children to meet his need to have an arrangement which is ‘fair’ as between the parents. The veracity of the competing evidence about the children’s views is not something I am able to determine on the strength of the untested affidavit material… (…)

[79] Based on the limited untested evidence before me, I am not persuaded further litigation will likely result in a substantial change in the children’s arrangements given the high level of acrimony and resentment between the three significant adults. …[T]he potential benefit to be derived by the children from [any] change is, in my view, outweighed by the negative aspects the children will be required to endure for a period of more than 12 months until a trial can occur.”

Robert Glade-Wright is the founder and senior editor of The Family Law Book, a one-volume loose-leaf and online family law service . He is assisted by Queensland lawyer Craig Nicol, who is a QLS Accredited Specialist (family law).

This story was originally published in Proctor May 2020.

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