Baldwin and Walker
[2010] FMCAfam 1526
•26 November 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BALDWIN & WALKER | [2010] FMCAfam 1526 |
| FAMILY LAW – Application to vary earlier parenting orders – no change in circumstance application dismissed. |
| Rice & Asplund (1978) 6 FamLR 570 D & Y (1995) 18 Fam LR 662 King & Finneran (2001) FLC 93-079 SPS v PLS (2008) 39 Fam LR 295 |
| Applicant: | MR BALDWIN |
| Respondent: | MS WALKER |
| File Number: | BRC 3973 of 2008 |
| Judgment of: | Jarrett FM |
| Hearing date: | 26 November 2010 |
| Date of Last Submission: | 26 November 2010 |
| Delivered at: | Brisbane |
| Delivered on: | 26 November 2010 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Counsel for the Respondent: | Ms K.R. Manby |
ORDERS
That the application filed 22 September 2010 be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Baldwin & Walker is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRC 3973 of 2008
| MR BALDWIN |
Applicant
And
| MS WALKER |
Respondent
REASONS FOR JUDGMENT
Ex tempore – revised from the transcript
This is an application for parenting orders filed on 22 September 2010 by the father Mr Baldwin. In the proceedings Mr Baldwin seeks that orders that were made by consent on 11 September, 2009 – so a couple of months more than 12 months ago – be set aside and that fresh orders be made in their place.
It is clear from the submissions that have been made to me this morning and the terms of the orders themselves that there are some significant issues that have been troubling the parties in this matter for some time.
The proceedings concern one child, X, who was born in (omitted), 2007. The orders that were made by consent last year prescribed the time that X was to spend with his father. Ordinarily, X lives with his mother and the time with his father is, on any view of it, limited. There are some special arrangements set out in the orders, in particular in paragraph 5, about X’s contact with another child, Y, and for that time to be supervised.
There was an issue about whom the supervisor might be but I am told by the mother that following some discussion an agreed substitute, who was the paternal grandparents, will recommence supervising pursuant to that order.
The orders that were made in September, 2009 were final parenting orders made by Howard FM at the request of the parties.
An application like this to vary, discharge or change in some other way orders made by a court exercising jurisdiction under the Family Law Act is not uncommon, and the Family Court, since its inception, has been dealing with such applications.
The most well known is the case of Rice & Asplund (1978) 6 FamLR 570 where the Full Court of the Family Court of Australia dealt with the principles that one should apply when dealing with an application such as that now before me. The leading judgment was delivered by the then Chief Justice, Evatt CJ. Her Honour made it very clear that the principle which applies in cases such as this is that the Court should have regard to any earlier order and to the reasons for and the material on which that order was based. The Court should not lightly entertain an application to reverse an earlier custody order. That case was dealing with custody orders because in those days that was the formulation used in the Act, but subsequent authorities make it clear that the principles in Rice & Asplund apply to parenting orders under the Family Law Act irrespective of the phrasing used by the Act from time to time to describe such orders.
The application by the mother in this case is that I deal with the father’s application summarily this morning. Such an approach is authorised by the authorities - see for example D & Y (1995) 18 Fam LR 662, although the longer a case goes on the more difficult it becomes to deal with the matter summarily: SPS v PLS (2008) 39 Fam LR 295.
The basic principle, however, is this. An applicant to change earlier final parenting order must establish that there has been a significant or material change in circumstances of the child or the parents sufficient to warrant the revisiting of the welfare of the child concerned.
In this case Mr Baldwin points to two matters to justify revisiting the orders. The first is the increase in the animosity between he and the mother. I do not agree with that. First of all, I am not sure that it is a change in circumstances at all – at least not a change in circumstances within the principle in Rice & Asplund. But, secondly, it is difficult to see how a change to the orders to expand X’s time with the father will address the animosity. The second matter pointed to by him is that X is now older. And indeed he is. Nothing is surer than that children age. That is a matter which depending upon the circumstances of the case might amount to a change in circumstances for the purposes of the relevant principle. There are authorities where the Court has entertained a change to orders where those orders were made a long time ago and children have aged considerably. However, this is not one of those cases.
In King & Finneran (2001) FLC 93-079 Collier J of the Family Court of Australia was sitting as the Full Court and hearing an appeal from a Federal Magistrate. In that case the Federal Magistrate had struck out some parenting proceedings because they did not meet the threshold requirement in Rice & Asplund, just like this case. In argument before Collier J the issue of what the Full Court meant in Rice & Asplund when it spoke of “significant” or “substantial” material changes in circumstances was raised and, in respect of that issue, his Honour said this:
The definitions to be obtained from the Macquarie Dictionary are as follows:
(1) significant: important or of consequence;
(2) indicative; expressing a meaning;
(3) suggestive; having a special or cover meaning;
(4) assigned; something significant.
And in respect of the word “substantial”:
(1) of a corporeal or mature or material nature; real or actual;
(2) of ample or considerable amount, quantity, size, etcetera;
(3) of strong character or quality; firm, stout, or stout, or strong
Collier J went on in King & Finneran:
The husband argued that the learned federal magistrate used the words, that is, “substantial” and “significant,” at times interchangeably and at times indicating quite different meanings. Clearly both words indicate something out of the ordinary course of events. To be either significant or substantial is to indicate that a matter is of importance, of consequence, of real worth, of ample or considerable amount, quantity size, etcetera. When related to a change in circumstances this clearly requires a change, or changes, which are of consequence and must be more than that which would occur by the passage or time or in the usual course of human activity. The words, in any event, are not words of necessarily strict dictionary definition and in D & Y their Honours of the Full Court made a finding that a trial judge has the discretion whether to deal with a change in circumstances is a preliminary issue or proceed to a full hearing. Their Honours indicated that in the circumstances that prevailed in that case, that is, a nine-day hearing, a little more than two years previously, that a judge would be extremely loathed to reopen the issue of custody except on strong grounds. The word “strong” in that case is a departure from “substantial” or “significant” as used in the earlier cases, but it clearly indicates what is required.
In this case, X’s change in age is quintessentially a change that occurs by the passage of time or in the usual course of human activity. It is not the type of change that is envisaged by the principle in Rice & Asplund as being a significant or material change in circumstances to warrant the revisiting of his welfare.
Having regard to the two matters raised by the father as justifying his application, and my view that neither amount to significant or material changes in either X’s circumstances or those of his parents the application will be dismissed.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Jarrett FM
Date: 23 January 2012
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