B & M
[2006] FMCAfam 189
•22 March 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| B & M | [2006] FMCAfam 189 |
| FAMILY LAW – Parenting orders – Rice & Asplund issue – application to vary recently made final consent orders – change in circumstances – long history of litigation – all current applications dismissed – costs order. |
| Family Law Act 1975 (Cth), s117 |
| King & Finneran (2001) FLC 93-079 Rice & Asplund (1979) FLC 90-725 |
| Applicant: | AJB |
| Respondent: | AM |
| File number: | CAM 584 of 2003 |
| Judgment of: | Mowbray FM |
| Hearing date: | 22 March 2006 |
| Delivered at: | Canberra |
| Delivered on: | 22 March 2006 |
REPRESENTATION
| Counsel for the Applicant: | AJB in person |
| Advocate for the Respondent: | Ms M Reid |
| Solicitors for the Respondent: | Phelps Reid |
ORDERS
All outstanding applications be dismissed.
The mother pay the costs of the father fixed in the sum of $1,650, that sum to be paid in four equal quarterly instalments with the first instalment to be paid by 7 April 2006.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CAM 584 of 2003
| AJB |
Applicant
And
| AM |
Respondent
REASONS FOR JUDGMENT
This is an ex tempore judgment which has been revised and edited from the transcript. It concerns final consent orders made for the child EM, born April 2002.
Background
This matter has a long history of litigation with final orders made by Brewster FM on 28 July 2004, followed by an appeal to Finn J in the Family Court heard on 21 and 28 February 2005, and dismissed on
4 March 2005.
There were further negotiations between the parties following the move of the mother away from Canberra. The mother says she only moved relatively recently and established herself permanently away from Canberra. There is evidence before the Court however, that she intimated some time ago that she would be formally leaving Canberra. A document in her own hand (Exhibit R2) says “I will be formally leaving Canberra on 16/03/05.”
The further negotiations resulted in consent orders which on their face say they were signed by the mother on 6 October 2005. She asserts today that she was required to sign them at the Court on 20 October 2005. Whether that date is correct, I do not know. The orders then were made by me on 7 November 2005, which is about four and a half months ago. There is evidence that during the course of the negotiations AJB had legal advice.
The consent orders provide for EM to live with her father. They set out detailed contact arrangements with the mother, including weekend contact on a number of occasions each year until November 2010. School holiday contact is to take place from 2006.
On 31 January 2006, just over two months after these final orders were made, AJB filed an application to vary the orders. Two further applications were filed on 17 March 2006 – an amended application and a contravention application. Both of these I understand have not been served on the respondent.
Changes in circumstances
AJB says that there have been a number of changes in circumstances which justify the Court reopening this matter. She refers to a number of contraventions. One relates to holiday contact over the Christmas period and the other relates to a series of issues over telephone contact.
AJB is now settled in a new location at H which is near Port Macquarie. She has also had a further child, N, who is four months old and therefore was born after she signed the orders. She has an older child, M, who is 20 months old. AJB asserts that EM and the other children should have the opportunity to be a family.
AJB says that she has regained her life after a period of emotional turmoil and instability in July to August 2003. Of course July to August 2003 is well before the consent orders.
Collier J said in King & Finneran (2001) FLC 93-079 at [44] it is well established that:
… the court will give consideration to the importance or seriousness of the issues raised [by a person seeking to reopen these matters], both individually and where necessary collectively, …
But the Court will only reopen the litigation if “there is some changed circumstance which will justify such a serious step” (Rice & Asplund (1979) FLC 90-725). Otherwise the Court would be “invit[ing] endless litigation for change is an ever present factor in human affairs”.
As Collier J said in King & Finneran at [49]:
… this clearly requires that the change or changes relied upon must be of consequence and must be more than that which would occur by the passage of time or in the usual course of human activity.
In my view the matters raised by AJB in January and today, now some four months after final consent orders were made, fall very much outside the principles for reopening set out in Rice & Asplund. The orders were signed by the mother on 6 October 2005 after a process of negotiation and earlier litigation. In the main the changes asserted by AJB were either known to her at the time she signed the orders or could be characterised as “in the usual course of human activity”.
The injunction of the Full Court to avoid being involved in endless litigation is particularly pertinent in this case. All outstanding applications involving EM should be dismissed.
Costs
Ms Reid for the father sought an order for costs. AJB opposed this because she could not afford to pay.
On 9 January 2006 Ms Reid wrote to AJB (a copy of the letter is annexed to the affidavit of AJB sworn on 27 February 2006) warning her that the father would seek costs:
…we are instructed that we will apply for your Application to be struck out with an Order that you pay our client’s costs…
AJB said in Court today that the possibility of a costs order being made against her had been brought to her attention:
It was brought to my attention and I stated to the Court and indeed I spoke to the Registrar about this matter and said that I just do not have funds available…
AJB was forewarned that an application for costs would be made. Yet she persisted with an application that had a real prospect of being dismissed, given that final consent orders had been made a mere two and a half months before she made her application.
In the circumstances and noting the provisions of s.117 of the Family Law Act 1975 (Cth), in particular ss.117 (2) and (2A), I am of the view that an order for costs is justified. Costs fixed in the sum of $1,650 are to be paid in four equal quarterly instalments.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Mowbray FM
Associate: Natasha Werner
Date: 10 July 2006
0
0
0