Baldwin & Pantazis
[2021] FedCFamC1F 21
•7 September 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Baldwin & Pantazis [2021] FedCFamC1F 21
File number(s): NCC 2496 of 2017 Judgment of: CLEARY J Date of judgment: 7 September 2021 Catchwords: FAMILY LAW – CHILDREN – Rice & Asplund – where final parenting orders were made in October 2020 – where mother contends that her change of residence is sufficient to satisfy the Rice & Asplund threshold – where father seeks that the mother’s application be dismissed – change in circumstances ruled insufficient to satisfy the Rice & Asplund principle – application dismissed . Legislation: Family Law Act 1975 (Cth) Cases cited: Baldwin & Pantazis [2020] FamCA 918
Defrey & Radnor (No 2) [2021] FamCAFC 139
Rice & Asplund (1979) FLC 90-725
Zabaneh & Zabaneh (1986) FLC 91-766
Division: Division 1 First Instance Number of paragraphs: 79 Date of hearing: 23 August 2021 Counsel for the Applicant: Mr Richardson SC Solicitor for the Applicant: Mills Oakley Lawyers Counsel for the Respondent: Ms Christie SC Solicitor for the Respondent: Waller Family Lawyers ORDERS
NCC 2496 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS PANTAZIS
Applicant
AND: MR BALDWIN
Respondent
ORDER MADE BY:
CLEARY J
DATE OF ORDER:
7 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.The Amended Initiating Application of the mother filed 2 August 2021 is dismissed.
2.The Amended Response of the father filed 2 August 2021 is dismissed.
3.The procedural hearing before the registrar on Wednesday 22 September 2021 at 9.30 am is vacated.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Baldwin & Pantazis is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Cleary J
This is an application by Ms Pantazis (“the mother”) to vary final orders in the context of a dispute over whether or not circumstances have changed sufficiently to justify a further inquiry into parenting arrangements for one subject child.
The respondent, Mr Baldwin (“the father”), opposes the application going forward.
Senior Counsel for both parties made brief submissions on what interim orders, if any, should be made in the event the Court considered that a further inquiry was justified.
HISTORY OF THE PROCEEDINGS
On 30 October 2020, final orders (“the 2020 orders”) were made with respect to parenting arrangements for one child, X, now aged six years. The 2020 orders were made after a trial which ran for five days in September 2020 before me. The dispute was between the two parents of the child.
The 2020 orders provided in summary that:
·The parties have equal shared parental responsibility for long-term decisions;
·That the father be able to enrol the child to commence school in 2021 in the B City area;
·That the child live with the father;
·That, for the three-month period before he started school, the child would spend time with the mother from 10.00 am Thursday to 6.00 pm Monday, [four nights and five days] each alternate weekend.
This represented a continuation of the then operative interim arrangements, where the child lived in B City with the father each fortnight for 10 nights and eight days and for four nights and six days in Sydney with the mother;
·That when school began, time would reduce to after school Friday to 4.00 pm Sunday each alternate weekend [three days and two nights per fortnight]; for half of each school holiday period and on the weekend of Mother’s Day. Arrangements were to change to accommodate school life;
·There were other orders relating to overseas travel, passports, access to information and further specific issues.
The trial brought to an end a period of about three years of litigation.
There was no appeal from those orders.
At the date of the trial, the parties were living about 150 kilometres apart. The father was living in B City as he had been since November 2017, first with the paternal grandparents, and subsequently with his fiancée, now his wife. The mother was living in South Western Sydney in the home of her paternal grandparents as she had been since June 2017. She was in close contact with her father and sister.
The orders were made in that context[1] with the parties committed to remaining where each was then living. This Court gave weight to the support, both financial and emotional, which extended families on both sides provided.[2]
[1] Baldwin & Pantazis [2020] FamCA 918, paras 267.
[2] Baldwin & Pantazis [2020] FamCA 918, paras 278 to 281.
Current Proceedings
On 15 March 2021, less than five months after the delivery of orders and reasons for judgment, the mother filed a fresh Initiating Application subsequently amended on 2 August 2021. The application was for a variation of final orders.
The change of circumstances which the mother relies on in moving the Court to make further orders is that she has moved to live in B City.
The interim orders proposed are for the mother to spend five nights in two blocks per fortnight with the child. On a final basis, the mother proposes she has six nights per fortnight with the child.
The relevant interim order sought is that Order 16(b)(i) of the 2020 orders be varied on an interim basis to enable X to spend time with the mother:
(a)Each alternate Wednesday from after school to commencement of school on Thursday; and
(b)Each alternate weekend from after school on Friday to before school on Tuesday.
Documents Relied On
The applicant mother relied on her Amended Initiating Application filed 2 August 2021 and an affidavit by herself filed on the same day. There was an applicant’s tender bundle provided electronically.
The father relied on his Amended Response filed 2 August 2021, an affidavit of himself on the same day and there was an Outline of Case provided on 20 August 2021.
Both parties filed a Notice of Risk; neither asserted any risk in the care of the other.
There has been in place since 2 August 2017 an Apprehended Violence Order made in Queensland for the protection of the father and the child from the mother. The order is for a five-year period and expires in August 2022. That Apprehended Violence Order has not been brought into consideration in this application.
THE LAW
The test or principle arising from the decision in Rice & Asplund (1979) FLC 90-725 is relevant to the application and is as follows: Assuming the evidence of the mother at its height is accepted, are the “new events” sufficient to cause a new inquiry into parenting arrangements?
In the decision of Zabaneh & Zabaneh (1986) FLC 91-766, her Honour the Chief Justice, who had formulated the proposal in Rice & Asplund, said this:
This Court would not wish to subject children to the repeated intervention of court proceedings to the extent that they have to be reassessed every few months or every year by court counsellors to see if they maintain the same attitudes.
I note that the subject child in this matter was too young to express a view at the time when such assessments were undertaken on two occasions, but now, at six, would likely be included.
The overarching test having regard to the best interests of the child, is whether new events or changed circumstances are sufficient to provoke a new inquiry. Given the past instability of this child in his very early life and in the lives of the parties, the stability which has now been achieved for him should not be disrupted if that outcome can be avoided. Any change which the parents can negotiate themselves is in the spirit and contemplation of the 2020 orders.
The Court was also taken to the recent decision in Defrey & Radnor (No 2) [2021] FamCAFC 139. This decision was in the context of an appeal from a decision in the Federal Circuit Court. The decision at first instance to dismiss the father’s fresh application for orders was on the basis that “he had not satisfied the Rice & Asplund test.” The first instance judge took into account some extraneous matters but the Full Court itself determined the application.
In that case, as in this one, equal shared parental responsibility and residence had been ordered and was not under challenge. It was an application to vary the final orders which had been made five years prior. The evidence of the father was accepted at its highest and a decision was delivered that there had been no sufficient change of circumstances to justify some changes in the arrangements for the child.
Within that judgment is a reference to section 69ZQ(1)(a) of the Family Law Act 1975 (Cth) (“the Act”). That section sets out the duties of the Court to conduct proceedings in accordance with the consistent principles in s 69ZN.
Section 69ZN of the Act says this in summary:
In giving effect to the principles for conducting child related proceedings the court must:
1.consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.
2.actively direct control and manage conduct of the proceedings.
3.conduct proceedings in a way that will promote cooperation and child focused parenting by the parties.
4.cause the proceedings to be conducted without undue delay with as little formality and legal technicality as possible.
The Court is also obliged to decide which of the issues require full investigation and hearing and which may be disposed of summarily.
The Court takes that legislation into account in determining whether or not to alter orders that have been made for time between the child and the mother, within a relatively short time since the trial.
In the 2020 reasons the Court considered s 60CC(3)(1)[3] of the Act including a reference to the parties negotiating new arrangements in the event one of them moved.
[3] Baldwin & Pantazis [2020] FamCA 918, paras 302 to 309.
The Court also takes into account the point raised on behalf of the father that more time with the mother is less time with the father, stepmother, brother and paternal grandparents.
In this case the parties could have agreed to amend the orders to four nights. That offer was made by the father and I will come to it further in these reasons. Four nights together with half school holidays and up to four events at school each week for the mother are more than sufficient to promote the best interests of the child.
Has there been a relevant change of circumstances?
On 30 October 2020 after receiving the 2020 orders the mother asserts that she: [4]
… realised I could not play such a minimal role in X’s life.
[4] Affidavit of the mother filed 2/08/2021, para 9.
In that same paragraph the mother said she had inferred from the reasons for judgment that:
… if Mr Baldwin and I had been living closer together, vastly different orders would have been made.
For those reasons, the mother said she made the decision to relocate. She expressed being hopeful that she and the father could reach an agreement for a “more equal time arrangement.”
There is no evidence to suggest that the mother made any attempt herself to communicate personally with the father prior to her move.
The mother did not tell the father of her decision at that time and not until she had established a residence in B City. She presented him with a fait accompli.
In a letter from the solicitors for the mother to the solicitors for the father it was communicated that the mother had realised “that she could not parent from afar.”
Accepting that evidence, it must be the case that the mother had not contemplated that she may be unsuccessful at trial in 2020 with her application for the child to move from B City to live with her in Sydney.
The realisation of the mother about her role in the life of the child could be considered new evidence. It seems somewhat unlikely, given that she was represented throughout by senior counsel and experienced Family Law solicitors.
However, taking her evidence at its highest, the mother changed her mind about where to live after she received the orders and realised that she was not prepared to parent from Sydney. The realisation is consistent with the statements in the report of the mother’s psychiatrist:[5]
Following the decision of the Family Court last year, Ms Pantazis was deeply affected by the prospect of having such a reduced role in X’s life. While it took her some weeks to recover from her intense distress, this recovery led to a powerful sense of resolution and determination to try and change those circumstances. This further increased her own sense of personal independence and empowerment such that she was able proactively to engage with her employer, her university provider and her family to make possible the relocation to B City and to find and furnish accommodation there.
[5] Affidavit of the mother filed 2/08/2021, Annexure P 14.
The Court had indicated at the outset of the 2020 trial that orders would not be made in the alternative, Sydney or B City, as the parties had proposed.
Alternate orders based on each party possibly moving to the city where the other party lived would have been of assistance if either party had indicated that they intended to move.
There was no such evidence, quite the reverse. The mother had stated during cross-examination that although she had considered moving to B City she intended to remain in Sydney in order to live with her grandparents, to have regular contact with her father and sister and to maintain her therapy and treatment, particularly with Dr N.[6]
[6] Baldwin & Pantazis [2020] FamCA 918, para 223.
The father was committed to B City. The child had begun living in B City with the paternal grandparents in 2017. The father moved from Brisbane later that year to live and work in B City to be with the child.
It had been open to the mother to relocate to B City prior to the trial.
It was also open to the mother to inform the Court at trial that she did intend to move to B City and to provide reasonable detail of when she would do so and what her circumstances would be in terms of the supports identified by Dr N.
The reason she did not is that it was her firm intention, as expressed at that time, to remain living in Sydney.
On 18 December 2020, the mother caused her solicitors to write to the solicitors for the father:[7]
My client is not prepared to parent X from afar and has now made the decision to relocate to B City.
[7] Affidavit of the mother filed 2/08/2021, Annexure P2.
The solicitors informed the father that the mother had already acquired a suitable two-bedroom property five minutes from the child’s school.
The mother, through her lawyers, pressed the father to participate in mediation. The parties did go to mediation.
The mother also requested that the father consent to four nights per fortnight on an interim basis. The father proposed four nights per fortnight on a final basis, being alternate weekends from afterschool Thursday to before school Monday, extending to 4.00 pm if Monday was a holiday. A contested letter was tendered into evidence was marked as MFI 1. It was a “without prejudice” letter from the solicitors for the father dated 17 February 2021.
Senior counsel for the mother tendered the document, senior counsel for the father objected.
I accept the argument of the mother that, although this letter was a communication in connection with an attempt to negotiate a settlement of the dispute between the parties, it should be admitted into evidence. Section 131(2)(g) of the Commonwealth Evidence Act states that:
The principle of exclusion of evidence of attempts to settle does not apply if evidence that has been adduced in the proceeding, or an inference from evidence that has been adduced in a proceeding, is likely to mislead the court unless evidence of the communication or document is adduced to contradict or to qualify that evidence.
In my view, this is such a case.
On behalf of the mother, correspondence between 18 December 2020 and to 4 March 2021 was relied on to support a submission that every effort had been made, with the father declining to make changes.
The disputed letter makes it clear that the father offered to amend the 2020 orders, and include the provision which had been contemplated when both parties were putting forward orders in the alternative, Sydney to B City.
The proposal was for four nights per fortnight, alternate weekends, Thursday after school to Monday before school or 4.00 pm on holidays.
That was rejected on behalf of the mother:[8]
… my client cannot resolve the matter in an arrangement where X is to spend only four nights per fortnight with her.
[8] Affidavit of the mother filed 2/08/2021, Annexure P8, letter dated 3 March 2020.
In her affidavit the mother makes a somewhat bland statement as follows:[9]
I wrote to Mr Baldwin by email on 3 March 2021 requesting he consent to four nights a fortnight on an interim basis. Tendered and marked P9 is a copy of the email dated 4 March where Mr Baldwin declined to make orders by consent on an interim basis for me to spend four nights a fortnight with X.
[9] Affidavit of the mother filed 2/08/2021, para 16.
The disputed letter clarifies that the father had made the offer of four nights and would have amended final orders accordingly. The mother wanted to move to four days on an interim basis but to continue to litigation with the hope of achieving more. The MFI 1 document accordingly becomes Exhibit 1.
The father requested and received information about the mother’s residence, employment, study and ongoing treatment from her supporting professionals.
It is of some significance that four nights per fortnight, although with fewer whole days, would represent a return to what the mother was having prior to the child starting school, pursuant to the 2020 orders and also in accordance with the prior interim orders.
The father has agreed to the mother being present on Tuesdays and Thursdays when the subject child is participating in swimming and soccer. In fact, he proposed that arrangement to the mother and she accepted.
The father has not, therefore, resisted change. He has agreed to the number of nights with the child which the mother had previous to the child starting school. What he did not agree to was making those orders on an interim basis with a further trial if a more extensive period of time was not agreed to by him.
The decision of the mother to move to the city where the child lives undoubtedly delivers a benefit to the child. He sees his mother more often and he travels hardly at all to do so. That benefit is not the complete answer.
On a final basis, the mother is seeking six nights a fortnight on alternate weekends; Friday to Monday, extending to Tuesday on a long weekend, and a two day period in alternate weeks. This is more time than the mother has had at any time since separation.
This case started in the Federal Circuit Court four years ago in August 2017. There was a single expert report by a psychiatrist in 2018 and sets of interim orders. The matter was transferred to this Court in 2019. A single expert was appointed to do a family report in late 2019. Many members of both extended families were involved and likely could be again. I accept the submission of counsel for the father that the child would likely be involved in the litigation.
This was a finely balanced case when the mother was living in Sydney in the home of her grandparents; financially and emotionally supported by them. She had regular contact with her father and with her sister and her sister’s husband and their children. Now the mother is living alone for the first time, having made the move without prior notice to the father or any discussion about how things could change if she did move to B City. She has lived in B City for eight months.
The motivation of the mother in moving cannot be faulted. The timing of it, weeks after a trial where she was insistent that she would remain in Sydney, is another matter.
An application for something akin to shared care, together with her rejection of the father’s proposal that she return to four nights per fortnight and her use of lawyers throughout to negotiate, may foreshadow an inquiry by the mother into a different allocation of parental responsibility and residence as well. That is not the mother’s present application on a final basis.
In the reasons for judgment in paragraphs 302 to 309 there is a reference to orders most likely to avoid the parties returning to litigate. Paragraph 308 states:
… it will be a matter for the parties to negotiate changed arrangements.
There is evidence before me that the father has shown a willingness to change the arrangements and to offer additional time to the mother. The orders contemplated that one party might move and if so that the parties sharing parental responsibility equally, as they do, would have to negotiate change. Since there is evidence of the capacity of the father to do that and a desire of the mother for that to happen there is no reason why it cannot.
On her own evidence, the mother rejected the proposal to return to four nights out of 14. She had previously had six days and four nights, but now that the child is at school there are only four full days available per fortnight to share between his parents.
The two factors of change, a shift to shared care and the mother living alone (although regularly visited by her family when health restrictions are lifted), would likely prompt at least another family report and most likely a further trial.
I accept and endorse the submission that further litigation does not promote the best interests of this child. He has just started school and is thriving there. His first semester report for kindergarten is annexed to the father’s affidavit and reads as follows:[10]
General comment: X is a delightful class member who approaches all aspects of school life with enthusiasm. He is a diligent worker, completing set tasks quickly and quietly. He displays an inquisitive mind and often shares interesting information or comments on a range of topics. X is learning to take risks in his creative writing by extending on his ideas and responding to teacher feedback. He is a compassionate friend who understands when someone is feeling upset and how to help them. X has shown great progress in his own self-regulation, stopping and thinking before making a choice in both the playground and classroom. It has been a pleasure working with X this semester.
[10] Affidavit of the father filed 2/08/21, Annexure DJT-01.
The child has just started school, he has a new baby brother in his father’s household, and his mother now lives close by. All those things are positive. The two extended families lining up to litigate about him again is not positive nor in his best interests.
The mother is already spending time at extracurricular events on Tuesdays and Thursdays each school week. The father has raised no objection, without suggesting that objection was available, to the mother volunteering in the school canteen – which she does.
The Court infers that the mother simply wishes to conduct another trial on the basis that she now lives in B City and the father’s offer to adjust spending time arrangements was slightly less than the mother wanted.
Balanced against the detriment to the child of both parents and other extended family being involved in further litigation the Court considers that the application of the mother, should be dismissed.
Orders are made accordingly.
I certify that the preceding seventy-nine (79) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Cleary. Associate:
Dated: 7 September 2021
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