Arturo & Indiana
[2024] FedCFamC1F 105
•22 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Arturo & Indiana [2024] FedCFamC1F 105
File number: MLC 14976 of 2023 Judgment of: STRUM J Date of judgment: 22 February 2024 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – INITIATING APPLICATION SUMMARILY DISMISSED – Where final parenting orders were made by consent in August 2023 – Where a fresh Initiating Application was filed in December 2023 – Where the parties did not attend family dispute resolution prior to the father filing a fresh Initiating Application, as required by the 2023 orders – Where the family dispute resolution practitioner provided a s 60I certificate stating it the matter was not appropriate for dispute resolution – Where the family dispute resolution practitioner did not speak to the mother before determining the matter’s suitability for dispute resolution – Where no genuine effort has been made to resolve the matter through family dispute resolution – Where there is no significant change in circumstances – Application dismissed summarily. Legislation: Family Law Act 1975 (Cth) Pt VII, ss 4, 10F, 60I, 64B, 69C
Family Law (Family Dispute Resolution Practitioners) Regulations 2008 (Cth) reg 25
Cases cited: Barr & Barr (No 3) [2023] FedCFamC1F 873 Division: Division 1 First Instance Number of paragraphs: 27 Date of hearing: 22 February 2024 Place: Melbourne The Applicants: Litigant in person The Respondent: Litigant in person ORDERS
MLC 14976 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR ARTURO
First Applicant
MS ARTURO
Second Applicant
AND: MS INDIANA
Respondent
ORDER MADE BY:
STRUM J
DATE OF ORDER:
22 FEBRUARY 2024
THE COURT ORDERS THAT:
1.The Applicants’ Initiating Application filed 19 December 2023, as amended on 19 February 2024, and Application in a Proceeding filed 19 December 2023 be dismissed.
2.In the event that any further application is sought to be filed, including for alleged contravention:
(a)Order 26 of the Orders made on 14 August 2023 and Notation B thereto;
(b)These Orders; and
(c)The Reasons for Judgment delivered this day–
be brought to the attention of the Registry before any such application is accepted for filing.
3.A copy of these Orders and the Reasons for Judgment delivered this day be provided to:
(a)The Director of C Mediation Service; and
(b)The Family Dispute Resolution Practitioner Unit of the Attorney-General’s Department.
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 Arturo & Indiana has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
DELIVERED EX TEMPOREStrum J:
Much as it strives to do so, the law is an imperfect tool with which to fix human problems. As Guest J, a retired judge of the Family Court of Australia, was want to say, sometimes resort should be had to the highest authority of all: common sense. This is such a case. Proceedings between the father and the mother were instituted in 2021. They were complicated by the fact that the father’s current partner is the former partner of the mother’s current partner.
One of the few things upon which the parents in this case, as well as their new partners, who also had proceedings of their own in relation to the children of that marriage, agreed was that the children of both previous relationships should, as far as practicable, remain together as a unit and not be separated. At least the four parents were capable of that much insight. Accordingly, the two cases were listed to proceed before me for trial, one after the other, in August 2023. The same Independent Children’s Lawyer was appointed in both matters and, with input from and the assistance of the Independent Children’s Lawyer, both matters were resolved by the making of final orders by consent in each of the proceedings.
Orders were made in respect of this family on 14 August 2023 (“August 2023 Orders”). In the case of the parents presently before me, those orders relevantly provided, for present purposes, that the mother have sole parental responsibility for the parties’ three girls, aged (both then and now) 12, 8 and 5 years; that they live with her; and that they spend time with the father during school term and school holidays, as well as on specific occasions.
Order 26 of the August 2023 Orders (“Order 26”) provides:
Pursuant to section 64B (2)(g) of the Family Law Act 1975 prior to either [Mr Arturo] or [Ms Indiana] making any application with respect to the children (or any of them), the proposed instituting parent arrange attendance at Family Dispute Resolution and provide a copy of these Orders and a copy of the reports of [Ms B] and [Ms D].
Notation B to those orders stated that:
Order 26 above is sought by each of the parents who seek to avoid further Court proceedings between them and in particular by the Independent Children’s Lawyer who notes that the parents have been involved in a most exhaustive Court process, requiring at least 19 Court event attendances.
Barely four months later, on 19 December 2023, the father filed a fresh Initiating Application, which was subsequently amended, together with an Application in a Proceeding seeking the discharge of the whole of the August 2023 Orders and, inter alia, that he, instead of the mother, now have sole parental responsibility for the children, and that they live with him and spend time with the mother. He does so, he says, because he alleges that the mother has not made the children available to spend time with him. That appears to be conceded by the mother, but she asserts, in effect, to have a reasonable excuse (albeit that there is no pending Contravention Application).
For reasons which are not entirely clear, but on their face, may be attributable simply to meddling, the father’s new partner - who was, as I have mentioned, a party in the related proceedings - has seen fit to join with the father as a co-applicant in these new proceedings. Section 69C(2)(d) of the Family Law Act 1975 (Cth) (“Act”) relevantly provides that proceedings under the Act in relation to a child may be instituted by “… any other person concerned with the care, welfare or development of the child”.
The co-applicant might conceivably be such a person. However, she could not explain to me the utility of being a co-applicant with the father. She does not seek any parenting orders in her favour. At best, she is a supporter of the father, at worst, a meddlesome barracker - I know not.
Order 26 is expressed to be made pursuant to s 64B(2)(g) of the Act, which relevantly provides that:
(2) A parenting order may deal with one or more of the following:
…
(g)the steps to be taken before an application is made to a court for a variation of the order to take account of the changing needs or circumstances of:
(i) a child to whom the order relates …
Although s 64B(2)(g) refers to a variation rather than a discharge, in my view, the greater encompasses the lesser. If orders are discharged, they inexorably vary the parties’ rights and obligations thereunder.
Order 26 refers to attendance at Family Dispute Resolution. That term is defined by s 4 of the Act to have the meaning given by s 10F, which provides that:
Family dispute resolution is a process (other than a judicial process):
(a) in which a family dispute resolution practitioner:
(i)helps people affected, or likely to be affected, by separation or divorce to resolve some or all of their disputes with each other; or
(ii)helps persons who may apply for a parenting order under section 65C to resolve some or all of their disputes with each other relating to the care of children; and
(b)in which the practitioner is independent of all of the parties involved in the process.
The husband has filed a certificate pursuant to s 60I of the Act. I am not persuaded that the section necessarily applies as, if it does, it would render Order 26 otiose.
Section 60I(1) provides that the object of that section is to ensure that all persons who have a dispute about matters that may be dealt with by an order under Pt VII make a genuine effort to resolve that dispute by family dispute resolution before the order is applied for.
Section 60I(7) relevantly provides that a court exercising jurisdiction under the Act must not hear an application for a Pt VII order in relation to a child, unless the applicant files in the Court a certificate given to the applicant by a family dispute resolution practitioner under sub‑s (8).
Section 60I(8)(aa) relevantly provides that a family dispute resolution practitioner may give a certificate to a person–
… to the effect that the person did not attend family dispute resolution with the practitioner and the other party or parties to the proceedings in relation to the issue or issues that the order would deal with, because the practitioner considers, having regard to the matters prescribed by the regulations for the purposes of this paragraph, that it would not be appropriate to conduct the proposed family dispute resolution;
It is difficult to see how a family dispute resolution practitioner can consider that it would not be appropriate to conduct the proposed family dispute resolution without at least hearing from the other party. To do otherwise might well be said to be, or be akin to, a breach the audi alteram partem rule and to be a denial of natural justice, forcing the other party into litigation, and the emotional and financial costs thereof, with an opportunity for family dispute resolution, as contemplated, and prima facie required, by the Act. There is no requirement that the parties be brought together physically, or even electronically, face-to-face for this purpose
The regulations to which s 60I(8)(aa) refers are the Family Law (Family Dispute Resolution Practitioners) Regulations 2008 (Cth) (“Regulations”). Regulation 25(1) provides that:
Before providing family dispute resolution under the Act, the family dispute resolution practitioner to whom a dispute is referred must be satisfied that:
(a) an assessment has been conducted of the parties to the dispute; and
(b) family dispute resolution is appropriate.
Regulation 25(2) relevantly provides that:
In determining whether family dispute resolution is appropriate, the family dispute resolution practitioner must be satisfied that consideration has been given to whether the ability of any party to negotiate freely in the dispute is affected by any of the following matters:
(a)a history of family violence (if any) among the parties;
(b)the likely safety of the parties;
…
(e)the emotional, psychological and physical health of the parties;
(f)any other matter that the family dispute resolution practitioner considers relevant to the proposed family dispute resolution.
The s 60I certificate filed by the father is dated 15 December 2023 and is signed by a Mr E, who states that he is a family dispute resolution practitioner and gives his registration number, as well as the organisation at which he works, namely, B Mediation Service. He relevantly states that the father and the mother did not attend family dispute resolution with him because he considers, having regard to the matters mentioned reg 25(2), that it would not be appropriate to conduct the proposed dispute resolution.
As I noted earlier, reg 25(1)(a) refers to an assessment that has been conducted of the parties to the dispute. I have been told by the mother, and the father does not dispute, that she was not contacted by the family dispute resolution practitioner. It is difficult to see how he considers that it would not be appropriate to conduct the proposed family dispute resolution, having regard to the matters mentioned in reg 25(2), without at least hearing from the other party, in this case, the mother.
The right to be heard is a fundamental right. It is conceded that did not occur in this case. I am therefore not satisfied that the object of s 60I, if it applies, as set out in subsection (1) thereof, being that all persons who have a dispute about matters that may be dealt with by an order under Pt VII have made a genuine effort to resolve that dispute by family dispute resolution before the Pt VII order is applied for. Even if s 60I does not apply, Order 26 does. I propose for this reason, as well as the reason I discuss below, to dismiss the Initiating Application of the father without a hearing on the merits.
The father concedes that he seeks a wholesale discharge of the August 2023 Orders by reason of what he alleges to be a breach of those orders, insofar as they provide for the children to spend time with him.
I consider that circumstance does not require a revisiting of the orders for the mother to have sole parental responsibility or even, at this early stage, if at all, for the children to live with her. The father's complaint, if he wishes to pursue it further, is more amenable to a Contravention Application than a fresh application for final orders. He says that he endeavoured to file such an application but that it was rejected for filing. I do not know why; it may be that it was not in the proper form. I will order that if such an application is sought to be filed again, a copy of these reasons for judgment be provided together with any such application.
In Barr & Barr (No 3) [2023] FedCFamC1F 873 at [25]–[29], Hartnett J set out the relevant legal principles:
25In Rice v Asplund, a decision of the Full Court of the then Family Court of Australia (now Division 1 of the Federal Circuit and Family Court of Australia) Evatt CJ stated the following:
The principles which, in my view, should apply in such cases are that the Court should have regard to any earlier order and to the reasons for and the material on which the orders is based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for, as counsel for the appellant submitted, change is an ever-present factor in human affairs. Therefore the Court would need to be satisfied by the applicant that there is some changed circumstance which will justify such a serious step. Some new factor arising, or at any rate, some factor which was not disclosed at the previous hearing which would have been material. These are not necessarily matters for a preliminary submission but they are matters that the judge should consider in his reasons for decision. It is a question of finding that there are circumstances which require a Court to consider afresh how the welfare of the children should best be served. These principles apply whether the original order was made by consent or after a contested hearing. The way they apply and the factors which will justify the Court in reviewing a custody order will vary from case to case.
26Many years later, in Walden & Cooper [2020] FamCA 104, Austin J set out the current guiding legal principles, on which I proceed, as follows:
9.The infinite vicissitudes of life mean no parenting order can ever be truly immutable, which reality is recognised in the Act (s 65D(2)). However, it is well established that no parenting orders, intended to be final, will be revised unless an applicant seeking to vary the orders can demonstrate a material change of circumstance to warrant the revision (Rice & Asplund (1979) FLC 90-725 at 78,905 (“Rice & Asplund”); SPS & PLS (2008) FLC 93-363 at [1] (“SPS & PLS”); Marsden v Winch (2009) 42 Fam LR 1 at [48] (“Marsden v Winch”); Langmeil & Grange [2013] FamCAFC 31 at [43]-[48]; Poisat & Poisat (2014) FLC 93-597 (“Poisat & Poisat”)).
10.The question of whether there has been a change in circumstances of sufficient magnitude to warrant revision of existing orders may be determined either by way of preliminary enquiry or comprehensive hearing (Poisat & Poisat at [39]-[41]; Marsden v Winch at [46]-[47]; Miller & Harrington (2008) FLC 93-383 at [80]-[83] (“Miller & Harrington”)) but, at whichever stage the determination is made, the application of the Rice & Asplund guideline is merely a manifestation of the paramountcy principle (Poisat & Poisat at [18], [19], [40], [42]; Marsden v Winch at [55]; Miller & Harrington at [101]) and procedural fairness should always be observed (Marsden v Winch at [56]).
11.In order to determine the existence and materiality of the asserted change in circumstances, consideration should be given to (Marsden v Winch at [50]):
(a)the past circumstances, including the reasons for the original decision and the evidence upon which it was based;
(b)whether there is a likelihood of the orders being varied in a significant way as a result of a new hearing; and
(c)if there is such a likelihood, whether the asserted need for variation of the orders outweighs the potential detriment to the child or children which the fresh litigation will cause.
27In Baisman & Cartmill [2022] FedCFamC1A 36 at [11], the Court stated that any change or any non-disclosed evidence from a previous proceeding must be “significant” to justify revisiting parenting arrangements.
28In DL & W (2012) FLC 93-496 at [77] and Carriel & Lendrum (2015) FLC 93-640 at [56], the Court stated that in such a consideration as set out above, the Court is not required to adopt the process as set out in Goode & Goode (2006) FLC 93-286, nor is the Court required to discretely address and consider many of the s 60CC of the Act factors.
29The Court was obliged to take the father’s untested evidence at its highest, unless it was inherently unreliable, the proceeding having been a discrete preliminary hearing as consented to by the parties.3 Whilst the matter proceeded in this manner, I observe that procedural fairness was required to be, it was afforded to the parties.
(Footnotes omitted)
Taking into account what Hartnett J said in Barr & Bare (No 3), I have read in particular the affidavits of the father filed on 20 December 2023 and 19 February 2024, as well as that of his new partner, also filed on 19 February 2024. They make it patently clear that the gravamen of the dispute is, in fact, the mother's failure to make the children available to spend time with him. Whether or not she has a reasonable excuse for not so doing is something that I cannot and will not comment upon at this stage. However, in my view, given that extant final orders were only made six months ago, and that these proceedings were only instituted some four months thereafter, there has not been any significant change of circumstances.
I am familiar with this case, it having been in my docket for some time before the trial listed in August 2023. In my view, the father’s complaints are more of the same. However, the mother must understand that compliance with orders of the Court is not optional. Orders must be complied with for so long as they remain operative. The mother has a positive obligation to use her best endeavours and to ensure that the children spend time with the father, unless those orders are varied. However, this is not the appropriate way in which to deal with that issue.
I conclude by returning to my opening observations, namely, that the law is an imperfect tool with which to solve all human problems, and that sometimes resort to common sense by parties may achieve a better outcome. However, from my previous involvement in this matter, I am pessimistic that that will be the case.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Strum. Associate:
Dated: 4 March 2024
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