B and C and Ors
[2003] FMCAfam 389
•11 August 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| B & C & ORS | [2003] FMCAfam 389 |
| FAMILY LAW – CHILDREN – Application by grandmother – best interests – varying existing contact orders – change in circumstances – whether the test in Rice and Asplund (1978) 6 Fam LR 570; (1979) FLC 90-725 has been met. COSTS – Application for costs by First Respondent. Family Law Act 1975, ss.65E, 117(2A) Hayman (1976) FLC 90-140 |
| Applicant: | LB |
| First Respondent: | LAC |
| Second Respondent: | BB |
| Third Respondent: | LM |
| File No: | PAM 4615 of 2002 |
| Delivered on: | 11 August 2003 |
| Delivered at: | Parramatta |
| Hearing date: | 11 August 2003 |
| Judgment of: | Scarlett FM |
REPRESENTATION
The Applicant Grandmother appeared on her own behalf.
| Solicitor for the First Respondent: | Mr Roles |
| Solicitors for the First Respondent: | VJ Roles Solicitors |
Second Respondent appeared on his own behalf.
Third Respondent appeared on his own behalf.
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondents costs in the sum of $380.00.
The Applicant is given four (4) months in which to comply with Order 2.
The Application is removed from the Pending Cases List.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAM 4615 of 2002
| LB |
Applicant
And
| LAC |
First Respondent
And
| BB |
Second Respondent
And
| LM |
Third Respondent
REASONS FOR JUDGMENT
Application
The application before the Court is an application by the grandmother of two children SM born 9 December 1995 and CML born 5 March 2000.
The Applicant seeks to vary orders that were made by consent in this Court on 6 January 2003. The consent orders which were made on that date provided for the Applicant to have contact initially, with S and then with C, for a period of approximately nine (9) days to cover swimming lessons for a two (2) week period in January 2004, and for alternate weekends from 4.00 pm Friday to 12.00 noon on the Saturday and for other times as agreed between the parties.
What the Applicant now seeks is that she have contact with the children on alternate weekends from 4.00 pm on the Friday until 4.00 pm on the Sunday, for a two week period in January of each year including overnight contact and for the first week of each of the other school holidays.
The proceedings that led to the orders being made by consent on 6 January had commenced in the Local Court at Fairfield in late 2002. The Applicant, in her own right, had commenced proceedings against the Respondent mother and the Second Respondent BB in respect of the child, CML. The orders that she sought were contact on each alternate weekend from 6.00 pm on the Friday to 6.00 pm on the Sunday.
There were also proceedings commenced jointly by Mr LM and Ms LB in respect of the child, S being Mr M daughter. The orders that were sought there were for the father to have sole parental and residential responsibility for S and for the Applicant grandmother to have contact with her again on alternate weekends and for the first week of each school holiday period. Proceedings between Mr M and the mother are currently continuing
The matter came to this Court on 6 January. On that occasion the Applicant appeared in person, both Respondent fathers appeared in person and Ms Nielson, a solicitor from the Legal Aid Commission, appeared for the Respondent mother.
During the course of the day, an agreement was reached between the parties and reduced to writing. Those Terms of Settlement were signed by all the parties and approved by the Court, and Orders were made accordingly by consent.
The Applicant grandmother seeks to change those orders in a number of significant ways. She has accompanied her application with an affidavit, and I would comment at this stage that each of the Respondent fathers who are present indicated on the last occasion and confirmed today that they had no objection to the orders insofar as the application related to the child of whom they were the father provided that any variation to the orders did not affect the contact that each of those gentlemen had with his child.
In the applicant's affidavit, which was filed on 20 May, and sworn that same day she sets out a serious of incidents which she relies on in support of her application to vary the orders. On 7 January and on
9, 14 and 16 January she says that she went to pick up S to take her to swimming, but the mother did not have the child ready and the Applicant was then obliged to provide the child with breakfast and then take her to swimming lessons.
She relates an incident on 5 March where she said she drove out to C to see the child C for his birthday and the mother did not allow her that pleasure. She describes a series of events that occurred between 21 and 26 March relating to provision of medicine for the child C. The Second Respondent, Mr B who is C’s father, provided some money to purchase the medicine but there was difficulty with the Medicare number. The Applicant says that the Respondent mother was displayed an uncooperative attitude about the Medicare number, and the Respondent's current husband, Mr C, told her to go in a somewhat peremptory manner.
The Applicant also refers to a time where Mr M was due to exercise contact with S, but due to another commitment, was unable to do so. On that basis, the Applicant sought to exercise contact with the child S in place of Mr M, however, that request was declined by the mother.
The Applicant deposes generally to difficulties in communicating with the Respondent mother. She refers to the expense of swimming lessons as far as petrol to collect and deliver the children and refers to an earlier situation before the mother married her current husband.
What the Court has to look at is whether these constitute sufficient reasons to reopen the question of contact with the children. The matter has been looked at by Courts on a regular basis, particularly by the Full Court of the Family Court. With respect to parenting orders, the Full Court has expressed the view that the Court should not likely entertain an application to reverse an earlier order.
I refer to the decision of Hayman (1976) FLC 90-140 where the general principles with respect to the variation to existing parenting orders were stated, and those principles were further reiterated and continued in the decision of the Full Court in Rice v Asplund reported in (1978) 6 Fam LR 570 and (1979) FLC 90-725. The Full Court held that and I quote:
“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 be to 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 would 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”.
The principles considered by the Full Court were confirmed in the decision in Freeman (1987) FLC 91-857. That case concerned the situation where the Court was required to determine whether there was sufficient reason to justify reopening parenting orders as a threshold question before the matter was heard on a final basis. The dilemma which the Court encountered was that there were existing Consent Orders on foot which had been made according to the parties initial agreement and proposals which had been set out through a mutual and acceptable arrangement. The Court was mindful of the fact that the situation was not sufficient to raise the ‘change in circumstances’ condition to allow for the reopening of the case.
The principles generally allowing for a case to be reopened and parenting orders to be varied are these:
a)The onus is on the Applicant who seeks to reverse an earlier residence order to satisfy the Court that there has been a change in circumstances since the original order was made sufficient to require the matter to be re-litigated
b)The principle is the same whether the earlier order is one made after a defended hearing or one which was made by consent provided that the relevant issues were considered.
c)There is a discretion in the trial Judge or Federal Magistrate to decide the question of a change in circumstances as a preliminary issue or to proceed to a full hearing.
d)The change in circumstances must be sufficient to warrant a re-examination of the issue of residence but need not satisfy the Court that those changed circumstances would result in a change to the orders only that there is a real likelihood of such a change.
e)The evidence of changed circumstance to be considered by the Court is not restricted to the evidence available at the time the application is commenced, it is the evidence available at the time the circumstances are considered by the Court.
Those principles are ones that I set out in the unreported decision
N v M(2003) FMCAfam 29.
The Applicant told the Court she had always had the children for alternate weekends and as a result of the Consent Orders she is left with a shorter period of time, being from 4.00 pm Friday till 12.00 noon on Saturday. Clearly, in her earlier application she had sought alternate weekends.
She had, in her application in respect of S, sought school holiday contact, although no reference was made of that in respect of the child C, and I note his comparatively young age.
The contact arrangements relating to taking the children to swimming has cost the Applicant a considerable amount of expense as she would have to travel a fair way to pick the children up from their residence, take them to the swimming venue and repeat the distance to return the children to their residence.
Basically the reasons for entering into the orders as the Applicant has told the Court today is,
"I did agree to that only because time was getting on. I just agreed because it was the first day of the swimming lessons."
I am not satisfied that the reason advanced by Ms B for signing the orders represents a cause to re-open the question of contact at this stage. There has been, to my mind, no substantial change and it is quite clear that orders that are entered into by consent must be given serious consideration. The fact that time was pressing or that it was a busy day is not to my mind sufficient. I am concerned about the fact that the Applicant alleges some failure by the mother to comply or perhaps to comply fully with the orders.
The appropriate course in such a circumstance is not to reopen the question of the orders. If an order is not being complied with then the appropriate course is for one to commence contravention proceedings which allows the party suffering the contravention to ventilate the contraventions, and the Court will deal with the issues raised with the appropriate measures.
But I am not satisfied in these circumstances that there has been a sufficient change of circumstances. I am of the view that the orders that were entered into by the parties were so done in good faith, and that the fact that it was a long day or that the Applicant wanted to get away is not sufficient to my mind to entitle a party to enter into what are said to be final orders of the Court and come back later and say that they want the matter to be reconsidered. As I have stated, matters will warrant a reconsideration only in the event where it can be shown that there has been a sufficient change of circumstances to justify reopening of the issue.
There is a further application before the Court by the First Respondent that the Applicant should pay her costs of these proceedings. There are a number of matters that I must take into consideration and section 117(2) of the Family Law Act1975 says:
If the Court is of the opinion that there are circumstances that justify it in doing so the Court may make such an order for costs as the Court considers just.
Subsection (2A) of that section sets out some seven different matters that the Court should have regard to. They include the parties financial circumstances and some matters which are relevant to these proceedings and others that are not. I am mindful of the fact that the Applicant in these proceedings is on a pension and is not otherwise flush with funds. I am aware that neither party is in receipt of a grant of Legal Aid. It seems to me to be relevant that the Applicant has been unsuccessful in these proceedings. It certainly has been put to me that the issue of costs was put to her as recently as this morning but she elected to proceed mindful of the possible ramifications.
I note the amount of time that the proceedings have taken and I note that they have been before the Court on two earlier occasions, 7 July and 11 August. I recall indicating to the Applicant that the issue the Court would look at is whether or not sufficient change in circumstances had been shown.
I am convinced that this is a matter where I should make an order for costs in respect of what was an application which was not successful and on the material before me, even as late as this morning, could not have been successful. I am mindful of the fact that the amount sought by Mr Roles for the mother could well have a significant financial impact on the Applicant to these proceedings.
I do consider that I should take into account the fact that the Applicant was in the position to have elected not to proceed with the matter today, but she has nevertheless chosen to do so. On that basis, I order that the Applicant is to bear the costs for the First Respondent of the proceedings today, and that cost is to be calculated for two hours at scale.
I propose to make the orders set out at the commencement of this judgement.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: C. Soliman
Date: 3 September 2003
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