Baars and Guerin
[2018] FCCA 199
•1 February 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BAARS & GUERIN | [2018] FCCA 199 |
| Catchwords: FAMILY LAW – Parenting – one child aged 10 – Rice & Asplund application – where the mother sought to reopen proceeding so as to relocate with the child – no change in circumstances warranting a reopening of the proceedings – not in the best interests of the child to reopen proceedings. |
| Legislation: Family Law Act 1975 (Cth), pt.VII |
| Cases cited: Marsden & Winch [2009] FamCAFC 152 |
| Applicant: | MS BAARS |
| Respondent: | MR GUERIN |
| File Number: | NCC 229 of 2015 |
| Judgment of: | Judge Middleton |
| Hearing date: | 22 January 2018 |
| Date of Last Submission: | 22 January 2018 |
| Delivered at: | Newcastle |
| Delivered on: | 1 February 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Duane |
| Solicitors for the Applicant: | East Coast Law |
| Counsel for the Respondent: | Mr Rugendyke |
| Solicitors for the Respondent: | John Adams Solicitor |
ORDERS
The application filed on 14 June 2017 is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Baars & Guerin is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT NEWCASTLE |
NCC 229 of 2015
| MS BAARS |
Applicant
And
| MR GUERIN |
Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant, Ms Baars, commenced proceedings by filing an initiating application on 14 June 2017.
The mother's application sought to discharge the Orders made by consent on 9 August 2016. The mother seeks orders in lieu thereof permitting her and the child to relocate to South Australia. The mother seeks orders providing for the child to spend holiday time, one weekend every five weeks in Sydney, two weekends during each school term in Adelaide and Father’s Day in Adelaide in the event the father travels to Adelaide.
The Respondent father Mr Guerin filed his response on 6 September 2017. He seeks an order that the mother’s initiating application be dismissed.
The matter was adjourned until 22 January 2018 for a hearing as to whether the rule in Rice and Asplund[1] should be applied so as to prevent the application of the mother proceeding any further.
[1] (1979) FLC 90-725.
The parties agreed and I allowed to some short cross-examination of the parties at the hearing.
The issue
The issue for me to determine therefore is whether the mother's application should be dismissed after applying the rule in Rice & Asplund.[2]
The evidence relied upon by the parties
[2] Ibid.
The material
The mother relied upon:
a)initiating application filed 14 June 2017;
b)notice of risk filed 14 June 2017;
c)affidavits filed 14 June 2017 and 10 January 2018;
d)affidavit of Mr M (the mother’s current husband) filed 10 January 2018;
e)case outline.
The father relied upon:
a)response filed 6 September 2017;
b)his affidavit filed 6 September 2017 and10 January 2018.
Background
The parties married on (omitted) 2002.
The mother has suffered ongoing and variable depression and anxiety since 2003.
The child subject to these proceedings is [X] who was born (omitted) 2007 and is currently 10 years old.
The parties separated on final basis in May 2014.
The mother commenced a relationship with her current husband Mr M in July 2014 and thereafter they commuted between Adelaide and Town A to sustain the relationship.
In January 2015 the father filed an application in the Local Court at (omitted) for the child to live with him. The matter was dealt with on an ex parte basis and the mother filed an appeal which was allowed and resulted in the proceedings continuing in the Federal Circuit Court.
A Family Report was prepared by Dr T in the original proceedings and is Exhibit 1 for the purpose of these proceedings.
From January 2016 Mr M arranged to work remotely from his home in Town A and thereupon relocated to live with the mother in Town A. The work arrangement was subject to periodic review.
In July 2016 the mother commenced full-time work at (employer omitted), Town A. Subsequently the work became permanent part-time and it was that work arrangement that was present at the time of the final orders being made as set out below.
On 9 August 2016 final orders were made by consent on the first day of a four day trial for the child to live with the mother and for a restraint on the mother relocating outside of a radius of 50 kilometres of Town A without the consent of the father.
In September 2016 the mother lost her full-time work and has been a casual employee since that time.
In 2017 the mother and Mr M married.
In May 2017 Mr M was notified by his employer that he was required to return to Adelaide as the remote working arrangement that had been in place and subject to review was no longer being offered by the employer.
The mother commenced proceedings on 14 June 2017.
The law
The mother's application is an application seeking parenting orders. In those circumstances the provisions of Part VII of the Family Law Act 1975 apply and in particular, in determining this matter, I must regard the best interests of the child as the paramount consideration.
In Poisat & Poisat[3] the Full Court said:
“The nature and extent of the consideration of the mandatory statutory considerations must, of course, depend upon the circumstances of the case, including the nature and breadth of the issues the subject of the proceedings (see, for example, SCVG & KLD [2014] FamCAFC 42).”
[3] [2014] FamCAFC 128 [34].
It is not in contest that the child has been living with her mother and spending time with her father in accordance with the orders made by consent on 9 August 2016. Those orders provide that the child spends each alternate weekend with her father, all of the term one school holiday period and half of the term two and three and Christmas school holiday periods.
The mother’s initiating application filed on 14 June 2017 seeks an order that the child spend time with the father for all of the term one South Australia school holiday period and half of each of the term two, three and four school holiday periods. The orders sought also include a weekend on every fifth weekend in South Australia and in the event the father wishes to travel to Adelaide and gives the mother 30 days’ notice in writing, for two weekends during each school term in Adelaide.
I can infer from the orders that the mother seeks that she has no complaint about the child spending time with her father.
The mother in her evidence alleges that the father has not been paying sufficient child support and the father responds in his evidence that he has been meeting is obligation pursuant to the Child Support Act.
In light of the evidence currently before me I consider the most relevant section 60CC considerations in determining what is in the best interests of this child to be Section 60CC(3)(ca), (d), (e) and (l).
There is no issue taken in relation to the primary considerations by either parent.
In Rice & Asplund[4] the Full Court said:
“The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order and 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, to quote Mr Justice Barber, 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 (passage quoted in Hayman & Hayman supra) at p. 75,680).”
[4] (1979) FLC 90-725 [7].
In Newling & Newling; Mole (Applicant)[5] Nygh J, with whom Barblett and Fogarty JJ agreed said:
“Since the principle that the welfare of the child is the paramount consideration applies in all matters affecting children, it is, in my view, not appropriate to speak of cause of action estoppel. What this rule really illustrates is that it is, generally speaking, not in the interests of the child to have repeated applications concerning its custody and access before the Court…”
[5] [1987] FamCA 21 [19].
As their Honours [Strickland, Murphy and Austin JJ] said in Poisat & Poisat[6] at paragraph 8:
“What is now universally described as “the rule” or “the principle” emanating from the decision of this Court in Rice and Asplund is, it cannot be doubted, firmly entrenched in family law in Australia having been referred to and applied in numerous decisions of this Court over the last 25 years.”
[6] [2014] FamCAFC 128 [8].
At paragraph 41 their Honours said:
“…the rule’s application recognises the benefit of the finality of litigation but also recognises that considerations acutely relevant to a child’s best interests can change, including, for example, by reference to the child’s age and level of maturity.”[7]
[7] Ibid [41].
At paragraph 43 their Honours said:
“If applied on a preliminary basis, the issue is whether the circumstances as disclosed by the evidence reveal a change of such significance that the best interests of the child require a revisiting of earlier orders.”[8]
[8] Ibid [43].
Assessment of the evidence
The evidence before the court firmly establishes that the mother in the earlier proceedings was seeking orders to relocate to Adelaide to live with her then partner, now husband.
The issue of Mr M’s employment was very much central to the previous proceedings.
The mother and Mr M had been in a relationship for approximately two years prior to final orders being made on 9 August 2016.[9]
[9] See paragraph 14 of the mother’s affidavit filed 14 June 2017.
On 4 January 2016 Mr M was able to arrange a temporary remote work arrangement with his employer. The working arrangement was to be reviewed three monthly.
On 14 July 2016 Mr M filed an affidavit in the previous proceedings. At paragraph 22 of that affidavit he provided evidence that in the event the mother was not able to relocate to Adelaide he would stay in Town A and that he would resign from his position at (employer omitted) and attempt to obtain work in another field. Furthermore his evidence continued that “given I do not have any other skills, I would not be able to earn the income I do now.”
Annexed to that affidavit was a letter dated 8 July 2016 from (employer omitted). The letter relevantly sets out that the remote working arrangement was temporary because “[Mr M] has assured us that it was a temporary arrangement.” The annexure further provides evidence that the temporary working arrangement was expected to conclude on 11 July 2016.
Additionally the annexure provides evidence that there had been some performance difficulties arise as a result of the temporary work arrangements which required the review period to be reduced to a monthly review period and the annexure ends advising that Mr M had been informed that he was required to return to Adelaide at the completion of his annual leave on 13 August 2016.
Under cross-examination the mother conceded that at the time of the consent orders being made she had been working permanent part-time and casual. The mother conceded that she was aware that Mr Ms’ working arrangement was temporary.
The mother was specifically asked whether Mr M had informed her that his remote working arrangement had become indefinite prior to entering the orders on 9 August 2016 and she said no.
The mother said that the first time she had been informed that Mr M was required to return to Adelaide was on 17 May 2017.
Exhibit 3 is evidence that the mother had invited the father to mediation on 10 May 2017, that is, prior to being informed, she says, that Mr M was required to return to Adelaide.
It was the mother’s evidence in her affidavit that the significant change in circumstances she relied upon to warrant further litigation was that she had been terminated from her employment in 2016 and that she was only able to work on a casual basis since that time.
It is the mother’s evidence that she has applied to twenty-six employers in Town A and has had no success in obtaining jobs. It is the mother’s further evidence that she has applied for ten jobs in Adelaide and from those applications she has had a positive outcome from three applications. It is the mother’s evidence that she is confident that she would “be able to obtain employment almost immediately in Adelaide.”"
The mother gave evidence under cross-examination that Mr M had resigned from his position in Adelaide, effective 28 February 2018.
It is the mother's case that as a result of her employment situation and Mr Ms’ resignation the parties will suffer significant financial hardship which will have an impact upon the child.
The mother filed a further affidavit on 10 January 2018. She provides evidence in that affidavit that she is now working with (employer omitted) and has been working with that company from mid-November 2017 until mid-December 2017. Her evidence is that she will return in early February 2018 and she will be employed on a part-time basis until March 2018 and after that time she is of the view and led to believe that she will be able to fulfil a full-time role for one of the employees who is on maternity leave for approximately four months.
The mother provides further evidence that on 26 October 2017 she received a letter from the Child Support Agency wherein the child support payable by the father was reduced to nil as the father was no longer employed. Her evidence is that prior to that time she had been receiving $223.00 per month child support.
The mother concludes her evidence by saying that on 18 December 2017 she received a new notification from the Child Support Agency assessing that the father must pay $154.25 per month. The mother says that as at 10 January 2018 she had no received any child support payments.
Mr M gave evidence. His evidence was that he became stressed after 12 September 2017 and thereafter sought approval from his employer to work four days per week and he obtained a mental health plan from his doctor in September 2017.
Mr M gave evidence that he resigned from his role as (omitted) and thereafter was employed on a full-time basis as a (omitted) until 28 February 2018.
His evidence is that he is not prepared to leave the mother and child for an indefinite period of time and therefore will not return to Adelaide.
Mr M gave evidence that he is currently looking for contract or freelance work but has been unsuccessful to date.
Mr M gave evidence that as result of his employment situation changing he has suffered financial difficulties and believes that his financial difficulties will only be exacerbated in the future.
Mr M gave evidence that in the event he returns to Adelaide he will be able to return to the company with whom he has worked most of his working life.
Mr M was cross-examined and conceded that even as at 9 August 2016 when the orders were entered into he knew that he might be required to return to Adelaide for employment.
Mr M conceded that there was no evidence from the company to confirm that he would be offered a job if he returned to Adelaide. He further conceded that during the previous proceedings he was prepared to resign his position to live with the mother if she were not permitted to relocate to Adelaide.
Mr M was taken to various company meetings where he conceded that he told his employer that he could revisit the orders in a couple of years and that if he was required to return to Adelaide he would resign. Those meetings were in August 2016.
At a meeting on 28 July 2017 the father conceded under cross-examination that he told his employer that he would move back to Adelaide one month before the hearing of this matter so that he could say that he had already moved.
The father gave evidence confirming that the child has spent time with him consistent with the orders made on 9 August 2016. He confirms that the mother continues to reside in Town A and that he continues to reside in the (omitted) area.
The father was cross-examined in relation to the three separate occasions where he was seen to be the car immediately behind the mother prior to change over. It was suggested that there was some intimidation meant on his behalf. I was satisfied that the father was simply travelling to the changeover location and had inadvertently come across the path of the mother.
The father made concessions against his interests that the financial pressure that the mother and her partner may now face could have an impact upon his daughter.
He was cross-examined as to whether he resigned from his employment in October 2017 out of spite or that he did so to add to the financial pressure to the mother. Once again I was satisfied that the father had resigned for bona fide reasons, had notified the Child Support Agency as required under the law, and had immediately re-notified the Child Support Agency upon recommencing work.
Exhibit 1 in the proceedings is the Family Report of 26 October 2015. The report provides evidence that at the time of the previous proceedings the father was seeking an order that the child live with him and that she spend time with her mother each alternate weekend.
The Family Report writer confirms in her report that the mother was seeking to relocate to Adelaide with the child.
At the time of the Family Report the mother and father both acknowledge that (omitted) was a significant base for the subject child as there were maternal and paternal family members there with whom the child had an ongoing relationship.
Furthermore, the mother acknowledged that if the court on the last occasion did not permit her to relocate with the child she and Mr M would live in Town A.[10]
[10] See paragraph 104 of the Family Report dated 26 October 2015.
The child was interviewed and at the time she was seven years old. The Family Consultant expresses the view that the child, appropriately for her age, was hoping to please both parents and wanted her parents to resume a relationship so that they can all live together.
When questioned as to what information she would like to provide the judge the child said:
“I tried to pick but it was way too hard.”
The Family Consultant provides evidence at paragraph 139 and 140 of the report that the child had a very close physical relationship with both the mother and the father. The Family Consultant was of the view that the child was
“a fortunate child who enjoys positive and strong relationships with her two parents and her extended family.”
The Family Consultant notes at paragraph 154 that it is vital for the child that she continues to be able to maintain a consistent relationship with the important people in her life in (omitted), namely the maternal grandmother and the paternal extended family.
The Family Consultant notes finally that a move to Adelaide would result in the child spending significantly less time in (omitted).
Conclusions reached
I am satisfied on the evidence that at the time the orders of 9 August 2016 were made by consent the circumstances of both the mother and Mr M regarding their employment were on all fours with their circumstances at the time of hearing this matter.
It is clear on the evidence that Mr Ms’ employment situation wherein he worked remotely was a temporary measure and that as at 9 August 2016 there were question marks over his ability to continue in that role.
It is clear on the evidence that both Mr M and the mother recognised that the court may not permit the mother to move with the child to Adelaide and furthermore they both had decided that if that were to occur they would remain living in Town A and Mr M would resign from his employment and seek contract or freelance work.
It is clear on the evidence that the mother's employment was variable as at 9 August 2016 in that she worked at times full-time, part-time and casual and as at the time of this hearing the mother's work is variable in that she currently works casually, is about to work permanent part-time and may work full time following on from March 2018.
What has changed is that Mr M has now resigned. This resignation may see a reduction in income to the family. I say “may” cause a loss of income because despite the evidence contained within the affidavits of there being no work available in Town A, there was absolutely no independent evidence provided that could satisfy me that Mr M had even looked for alternate work. There were no job applications provided or letters from prospective employers. Indeed Mr M gave evidence that he had applied for a job as an (occupation omitted) in Town A and he was unsuccessful. That application was not annexed to his affidavit or put in evidence in any form.
The evidence further establishes that at the time the consent orders were made on 9 August 2016 the mother and Mr M had been in a relationship for some two years and they continue to be in a relationship.
The evidence establishes that the child is now ten and that she has continued to spend time with her father and maternal and paternal external family members. There is no evidence to suggest that the child's relationship with either parent has diminished since the time the orders were made.
With regards to the mother’s alleged exacerbation of her mental health condition there is no evidence of that condition from a qualified expert as at 9 August 2016 or now. As a result I cannot place much weight on that issue.
The evidence satisfies me that if I were to decide this issue in favour of the mother then there could be a considerable change in the living arrangements for this child. The child may be required to change schools, states, friends and would have reduced interactions with her father and other external members of the family. They are significant changes which are likely to impact upon the child.
As I have said, the child has a strong relationship with both of her parents. Neither parent raises allegations regarding the primary considerations contained in s 60CC(2). The evidence of the Family Consultant satisfies me that this child has love for both of her parents and that she is indeed one of the lucky children involved in litigation in that both her parents love her dearly and support her.
In light of those findings I am satisfied that a change in her living arrangements such that she was required to live in Adelaide would be disadvantageous to the child.
If I made orders in favour of the mother’s application to re-litigate this matter I must consider whether I would be likely to make orders consistent with her substantive case. On the evidence before me I do not think it likely that I would permit the mother relocating the child’s residence to South Australia.
I am satisfied on the evidence that both parents are fulfilling their obligations to maintain the child. I am satisfied that the evidence supports a finding that the father continues to meet his child-support obligations and that he left his former employer for bona fide reasons. I also note that the father obtained suitable alternate employment shortly thereafter and once again immediately contacted the Child Support Agency.
As the Full Court said in Marsden & Winch[11] at 49:
“This is the genesis of the “rule” in Rice & Asplund and as Warnick J says it is founded on the notion that continuous litigation over the child or children is not generally in their interests. It is usually hoped that the determination of a controversy concerning children by a court will result in at least a reasonable period of stability of those arrangements and freedom from the stressful and conflictual effects of litigation on both parents and children. In addition, recent research demonstrates that conflict between parties is itself harmful to children.”
[11] (2009) FamCAFC 152 [49].
Since that decision there has been some eight years of continuing research that continues to demonstrate that conflict between parties is itself harmful to children as is the child being exposed to ongoing litigation.
The previous controversy, noting that it is exactly the same issue that is currently being pressed by the mother, was determined on 9 August 2016. The parties after considering their circumstances agreed to settle on a set of terms. The judge on that occasion after considering those terms as against the evidence before him determined that those terms were in the best interests of the child.
I must be satisfied that there has been some changed circumstance or some new factor that has arisen or some factor that was not disclosed at the primary hearing.
The only changed circumstance that I can find in the evidence is that Mr M has now resigned from his employment with (employer omitted) as he said he would do during the previous proceedings.
That change may bring about a change in the financial circumstances for the child. As I said previously I cannot make any determination in real terms other than to note that generally people who do not work have less income than those that do.
I must weigh that change and the significance or otherwise of it against the circumstances that the child is currently living with and how her best interests would be met.
Having considered all of the evidence I am satisfied that it is in this child's best interests for this application to be dismissed because her circumstances will not change and her attachment and relationship to her father and external members of her family would not be affected.
Of course if the matter remained on foot and the application continued I am not of the view that I would likely permit the relocation of the child in any event based upon the evidence before me currently.
If the matter were to proceed the child would need to be interviewed again and the child would obviously become aware of the proceedings and I am satisfied that the stress brought about by those proceedings would not be in the child's best interests.
It is for those reasons that I dismiss the application.
I certify that the preceding one-hundred (100) paragraphs are a true copy of the reasons for judgment of Judge Middleton
Date: 1 February 2018
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