B and B

[2007] FMCAfam 133

FEDERAL MAGISTRATES COURT OF AUSTRALIA

B & B [2007] FMCAfam 133

FAMILY LAW – Recent parenting orders – mother claims a medical misdiagnosis – Rice & Asplund threshold issue – no significant change in circumstances – ongoing litigation not in child’s interests – application dismissed – costs awarded – costs discounted.(I will insert the catchwords last.)

Family Law Act 1975 (Cth), s.117

Bennett & Bennett (1991) FLC 92-191

B & B [2005] FMCAfam 418

C & F [2005] FamCA 110
King & Finneran (2001) FLC 93-079
Rice & Asplund (1979) FLC 90-725

Applicant: CB

Respondent: WB

File number: CAM 3510 of 2002

Judgment of: Mowbray FM

Hearing date: 19 February 2007

Delivered at: Canberra

Delivered on: 19 February 2007

REPRESENTATION

Counsel for the Applicant: Ms A Tonkin

Solicitors for the Applicant: Mazengarb Barralet Family Lawyers

Advocate for the Respondent: Ms A Osmand

Solicitors for the Respondent: Farrar Gesini & Dunn

ORDERS

(1)The application of 1 December 2006 and response of 16 February 2007 be dismissed.

(2)The mother pay the father’s costs fixed in the sum of $1,200 in six monthly instalments of $200, with the first instalment due 19 March 2007.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
CANBERRA

CAM 3510 of 2002

CB

Applicant

And

WB

Respondent

REASONS FOR JUDGMENT

Background

1.This is an ex tempore judgment which has been revised and edited from the transcript.

1.This matter involvesIt concerns an application by the mother to reopen orders that were made by Baumann FM on 1 August 2005. I note that following his judgment is datedof 25 July 2005 (B & B [2005] FMCAfam 418). I am not sure why there is this disparity, but it makes no material difference. 

2.In the his judgment of Baumann FM at [3] and [4] Baumann FM he sets out the orders that the mother then proposedsought.  From 2007 sShe proposed that from 2007 L – (born June 2001 – and currently five and a half –), spend alternate weeks with each parent. 

3.That proposal was rejected by Baumann FM., and iIn fairly lengthy detailed orders what he essentially provided for was a 4 -10 arrangement per each fortnight.  That is, L was to spends Thursday to Sunday in week A, and then Thursday night in week B with his mother, plus half of the school holiday period.

4.The mother now seeks to have those orders discharged and to have L live with her on a week about basis.  This , which is essentially the what orders she sought from 2007 for L from 2007 atat the hearing before Baumann FM.

Change in circumstances

5.The change in circumstances that the mother seeks to raisesays justifying justifies the reopening of this matter, which was heard such a short time ago, is thatrelates to Baumann FM’s extensive reliedance extensively on a report of a psychiatrist, Dr Robert Tym.  In a report dated 8 March 2005 Dr Tym found that the mother had a borderline personality disorder.  That report was dated 8 March 2005.

6.The mother has now annexed to her affidavit filed on 1 December 2006 two further reports.  One report is from Dr Katherine Lubbe dated 30 May 2006, the other from Dr John Saboisky dated 24 April 2006.,  in which theyThese specialists question that Dr Tym’s diagnosis.

7.The mother says this misdiagnosis by Dr Tym is is the the change in circumstance on which she seeks to rely on.  

8.In her affidavit she also raises claims about recent behaviour by L which she described as “sexualised”.  Virtually no submissions were put to me by the mother's counsel on that this matter particular issue today.

1.The authorities on whether or not a matter should be reopeneding recently made parenting orders refer to the need for a significant change in circumstances.

1. In Rice & Asplund (1979) FLC 90-725 the Full Court of the Family Court said:

   … the court should have regard to any earlier order and to the reasons for and the material on which that order was based.  It should not lightly entertain an application to reverse an earlier custody order.  To do so would invite endless litigation for 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.

   10.The decision in Rice & Asplund has been subsequently followed in a whole series of cases. , fFor example in King & Finneran (2001) FLC 93-079.  Collier J sitting on appeal explained the way in which the Court should apply the test: 

   44. To apply the test in Rice & Asplund is to make an assessment on the material then available to the court as to whether or not the matters raised in that material make it necessary or proper in the best interests of the children, the subject of litigation, to allow further proceedings. In arriving at such a decision, the court will give consideration to the importance or seriousness of the issues raised, both individually and where necessary collectively, and the impact that they may have on the children. It may be necessary to assess whether or not the matters are indeed matters of change or whether they are completely fresh issues that require revisiting the earlier decision.

   …

   50. … The change or fresh circumstances must be such that upon becoming advised of it and being satisfied of its existence, a court would be left in no doubt that it was necessary to relitigate the parenting issue in dispute between the parties.  That is not to say that a court must be satisfied that the fresh or changed circumstance would result in a change to the orders.  It merely indicates that the change or fresh circumstance must be such that if taken into account there is a real likelihood that a change may follow.

   11.Ms Tonkin for the mother referred me to other decisions of the Family Court, including C & F [2005] FamCA 110.  where Here Finn J refers quotes from to Rice & Asplund and says makes essentially the same thingpoint as in Rice & Asplundand King & Finneran,.  

   12.but Ms Tonkin took me to Bennett & Bennett (1991) FLC 92-191 to which Finn J also referred.  Bennett & Bennett makes it clear that it is a matter for the trial judge's discretion whether to determine the Rice & Asplund issue as a threshold issue question or in the course of a full hearing of the mattercase. 

   13.I have also read the reports of Dr Tym, and Dr Lubbe and Dr Saboisky.  

   14.In Baumann's FM’s decision at [37] he says at [37]:

   37. The mother does not deny a long history of mental unwellness. She could hardly do so in the face of the extensive records produced under subpoena from the Calvary Hospital (exhibits 4 and 6); Healthfirst records (exhibit 5); Queen Elizabeth II Family Centre records (exhibit 8) and the records of Dr Lubbe.  Even though the mother says Dr Lubbe did not agree with the diagnosis of Dr Tym, Dr Lubbe was not called as a witness by the mother.

   …

   40. Whilst I turn to that report in Dr Tym's evidence generally below it is significant that having elected to procure that report the mother then decided not to rely upon it.  In fact, she seems to have taken the view that Dr Tym's evidence should be rejected.  I took the view that Dr Tym should be regarded as a “Court expert” when he was relied upon by the father's counsel and in the father's case.  He was therefore the subject of cross-examination by both counsels as a result.

   15.I quote thatparagraph 40, amongst other things, to correct an impression I may have given earlier during today’s hearing when I say said that the mother sought to rely on parts of Dr Tym's report.

   1.I note also that on the occasion before Baumann FM both parties were represented by counsel. 

   16.From the bar table Ms Tonkin also referred me from the Bar table to what she said had been the correction of the Calvary Hospital records on which Dr Tym had relied.  There is nothing in the affidavit material before me which indicates in what way they have been corrected, and in what way they were in error. , except I am only told that Dr Tym had reached different conclusions from Dr Lubbe and Dr Saboisky.

   17.I also note that Dr Tym in his report was not just relying only on psychiatric notes from Calvary Hospital. He says that he examined CB and this examination lasted for approximately one hour and 30 minutes.

   18.It appears that what all that has happened between the time of Baumann's FM’s decision in July-August 2005 and today, is that the mother has obtained two new reports which are provided by two psychiatrists in which they have express some disagreement, or significant disagreement, with Dr Tym.  

   19.The significant important thing that has not changed is, and this is clear from the decision of Baumann's FM decision, is the mother's view onf her condition.  As I the quoted above from [40] of Baumann FM’s decision illustrates, she took the view then that Dr Tym's evidence should be rejected. She disputed the diagnosis then, she disputes the diagnosis now.  Neither Dr Saboisky nor Dr Lubbe say her condition has changed since 2005.

   20.In my view, havingHaving

   regard to the tests in Rice & Asplund, there has not been such a significant or fresh change in circumstances, or a fresh new circumstance, to which would justify reopening this matter.  The mother’s position has not changed.  There is no evidence that any of the diagnoses of Dr Tym,

   
   Dr Lubbe or Dr Saboisky have changed. 

   21.Furthermore I do not believe on the material before me that reopening this matter would be in the best interests of L, who has spent over two years under the arrangements that were put in place by Baumann FM.  Although the orders were not until August, I understand the arrangements commenced after an incident in February 2005.

   22.Furthermore, aAs Rice & Asplund makes clear, it is not in the interests of a child to have ongoing litigation.  At the time of the hearing before Baumann FM, he was told that Dr Lubbe did not agree with the diagnosis of Dr Tym., but However, sheDr Lubbe was not called as a witness by the mother, even though the mother rejected the view taken by Dr Tym.

   23.I note that at the hearing before Baumann FM both parties were represented by counsel. 

   24.This is not a case where I should leave it to a final hearing to decide whether or not thise application should go aheadproceed.  As Bennett & Bennett makes clear I have that discretion to make a decision at the threshold or at a final hearing.  Having regard to the matters to which I have referred, I propose to dismiss theis application at the threshold stage today.

   Other issues

   25.There are also a number of matters that are raised by the father in his response. 

   26.I am not satisfied on the material before me that I should enter into an examiningation whether there should be any restraint on the child being left with DM or MM.  If the father wishes to pursue that matter he will need to do that on another occasion, and not on at the threshold hearing today.

   27.In relation to tThe other matter issue raised by the father, that being is whether the mother should be restraineding the mother from taking L to health professionals. , it This seems that to be effectively covered by orders 14 and 15 of of Baumann's FM orders which place a mutual obligation on the parents to make ensure they advise the other parent of any treatment to which they are sending L.

   28.I have some sympathy with what I have read in the father's affidavit, and from what I have read from the reports attached to it, about his concerns about regarding multiple counselling and such like in relation tofor a young child as young as this.

   Costs

   29.The provisions in sSection 117 of the Family Law Act 1975 set ouputst the primary proposition that parties to a proceedings should bear their own costs. Section 117(2) however allows for a costs order where the circumstances justify it.  Section 177(2A) then gives sets out a range of considerations for the Court in making any such order. 

   30.In my view having regard to those considerations, including the relative recent decision of Baumann FM, Tthis is an appropriate case in which there should be an award of costs against the mother,, but that that award ofthose costs should be discounted because of the lack of success of the father in relation to the matters he brought.  That should beThat discounted should not bye 100 per cent as Ms Tonkin essentially was saying, but by 50 per cent. 

   31.Today’s matter has been a half day hearing and there was a short mention on the a previous occasion.  On the basis of the Federal Magistrates Court of Australia feecosts schedule, the total with an advocacy loading is $2,387in relation to this matter for one short mention and one half day mention, with an advocacy loading the total would be for the father $2,387, which I will discount by 50 per cent.  This gives a round figure of $1,200.  I will order the mother pay the father's costs paid in six equal monthly instalments of $200.

   I certify that the preceding thirty-two one (31) paragraphs are a true copy of the reasons for judgment of Mowbray FM

   Associate:  Natasha Werner

   Date:  27 March 2007