Beaumont and Beaumont

[2007] FamCA 1290

FAMILY COURT OF AUSTRALIA

BEAUMONT & BEAUMONT [2007] FamCA 1290

FAMILY LAW – CHILDREN – application to vary soon after final orders made

Family Law Act 1975 (Cth)

Rice & Asplund (1979 FLC 90-725)
Bolitho & Cohen (2005) FLC 93-224 
King & Finneran (2001) FLC 93-079

APPLICANT: Mr Beaumont

RESPONDENT:  Mrs Beaumont

FILE NUMBER: MLC 10940 of 2007

DATE DELIVERED: 17 October 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 17 October, 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms. Treyvaud

SOLICITOR FOR THE APPLICANT: Maria Barbayannis & Co.

COUNSEL FOR THE RESPONDENT: Mr. Wilson

SOLICITOR FOR THE RESPONDENT: Westminster Lawyers

Orders

1. That the application to summarily dismiss the initiating application filed 2 October, 2007 be dismissed and the case referred back to the Senior Registrar.

2. That the following amendments be made to the initiating application :

   (a)the words “and six” be deleted in paragraph (1);

   (b)paragraph (3) be deleted.

3. That the reasons for judgment this day be transcribed and that copies be made available to the parties.

4. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

IT IS NOTED that publication of this judgment under the pseudonym Beaumont & Beaumont is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 10940 of 2007

MR BEAUMONT

Applicant

And

MRS BEAUMONT

Respondent

REASONS FOR JUDGMENT

1. The matter has been has been referred into this list by the Senior Registrar, for determination of an application brought by the wife for summary dismissal of an initiating application filed by the husband on 2 October 2007.

2. This case, as earlier litigation, involves the parties' daughter, who was born in July 2005. The parties were involved in lengthy litigation in relation to parenting and financial matters, which culminated in final orders being made, by consent, on 17 July this year.  The litigation had involved questions of the child's residence and the time she was to have with the parent with whom she was not resident; the determination of an application in which the wife sought to relocate the child's residence permanently to France; and property settlement.  All those issues were compromised by the orders which were made in due course by Young J, on 17 July.  Those orders provided for the child to leave Australia with the mother on 1 December, 2007 and to live in France for a number of years..

3. The application brought by the husband earlier this month seeks to vary one of the paragraphs of those orders, being paragraph 5(b).  Paragraph 5 relates to the time the husband is to have with the child until the child's departure for France on or after 1 December. It provides for him to spend time with the child from 12 midday on Sundays until 4 pm on Mondays. The vital provision is in the following subparagraph, being subparagraph (b), which provides that he spend time "from 2.30 pm to 5.30 pm on Wednesdays and, from 1 September 2007 from 2.30 pm on Wednesday until 8.30 am on Thursday if recommended by Alfred CAMHS."  Alfred CAMHS, as everybody involved in the case knows, is the Child and Adolescent Mental Health Service conducted by the Alfred Hospital.

4. The husband seeks that the words "if recommended by Alfred CAMHS" be deleted from paragraph 5(b); that is, he seeks that as of now – it being after 1 September 2007 – and in addition to the contact in 5(a), he spend time with his daughter from 2.30 pm on Wednesday until 8.30 am on Thursday, being an overnight period.

5. The order which makes reference to Alfred CAMHS clearly arose - and this is not in issue - from the fact that the parties and the child had been seeing Ms S of Alfred CAMHS for therapeutic interventions for some time.  The evidence of the parties differs as to whether Ms S expressly or by inference made comments to either of them which gave them to believe that she had a view about the extension of contact (prior to the child leaving Australia) to overnight contact. Perhaps unsurprisingly, it is the husband's perception that the things Ms. S said recommended extension; perhaps unsurprisingly, it is the wife's perception that the things she said were opposed to extension.

6. Before the court is a letter from Ms S, dated 27 September 2007, addressed to whom it may concern and clearly prepared in the context of this litigation.  In it she advised as follows:

   I was informed on 5 September by Julian McDonald, a lawyer acting for [the wife], that there are Family Court orders issued on 17 July 2007 stating that [the child]'s time spent with [the husband] may be increased if recommended by myself at CAMHS. In this particular case, my making a decision directing access arrangements would compromise therapeutic work here with [the child] and her parents.  I therefore made no recommendation in relation to the introduction of additional overnight access for [the child] with her father and I will not be making a recommendation.  I believe a decision like this is best made by both parents coming to an agreement made with [the child]'s emotional wellbeing and relationship needs kept foremost in mind.

7. It is the wife's submission that the husband’s application is an attempt to reopen a matter concluded by final orders and that, pursuant to what is routinely called the rule in Rice & Asplund (1979 FLC 90-725), the court should resist such a misuse of its jurisdiction. It is put that both parties knew that the child was seeing Ms S; both parties had confidence in her; both knew it was therapeutic counselling; both should have known of Ms. S’ disinclination to be involved in decision‑making; no order provided for the parties to actually approach CAMHS and seek a determination of the issue; and that there was no obligation on CAMHS to do anything. The last is self-evidently true, as CAMHS was not a party to the litigation and no obligation could be imposed on the service or Ms. S by the court unless it or she were a party, or expressly consented.

8. It is further put that the husband understood the risk that Ms S might not, or would not, want to be involved in this decision, and that he is stuck with the consequences. It is further put that because Ms S says in her letter that she has made no recommendation, that means she does not endorse additional overnight contact. 

9. As counsel for the wife said, there is no warrant to look behind the orders.  The court's job is to determine what an order means.  In my judgment, on its face, the meaning of paragraph 5(b) is quite clear.  It envisaged the capacity for a staff member at Alfred CAMHS (clearly Ms. S) to make a decision, expressed via a recommendation, as to whether it would or would not be in the child's best interests to have contact extended to overnight.  There would be no point in the order if that were not the case.  Essential rules of statutory interpretation mean that the court should act on the basis that words are inserted for a reason.  In my judgment, the only reason was an expectation that Ms S, although not personally named, would be in a position, and would be prepared, to be involved in the decision as to the extension of time.

10. I am not satisfied that this is - to use Mr Wilson's colloquialism - a second bite of the cherry.  Nothing said by the Full Court in Bolitho & Cohen (2005) FLC 93-224, including their adoption of Collier J's statements in King & Finneran (2001) FLC 93-079, persuades me otherwise. There is no doubt there is a discretion in the court to deal with this issue summarily at this point. This is not, as in that case, an application to vary, made after a nine-day hearing, where orders were made by a judge, and where the application to vary would routinely go back before that judge, reasons for the original decision having been given.

11. As counsel said, the rationale for the rule in Rice & Asplund is the protection of children from the effects of continuing unwarranted litigation. I take into account the evidence of the mother's anxiety, and Ms M's evidence (which was before the court at the time the consent orders were made) of the impact of parental discord on the child. I also take into account the child's separation anxiety and, without them being specified in detail, the problems which have led to the therapeutic involvement of CAMHS.  Services such as that do not provide therapeutic interventions to children who do not need them; I can assume from Ms S' continuing involvement that the child has been experiencing significant problems, which required intervention.

12. However, in this case I am left in no doubt that it is necessary to reconsider the question of the time the father is to have with the child prior to her departure for France. First, it is important time and vital to the child's best interests;  second, a determination of that question impacts on the time the child is to spend with him in the years ahead, that being premised on the extent of the overnight contact before she leaves Australia.  Ms S has said that she believes a decision like this needs to be made by both parents. Ms S' belief is consistent with that of Parliament. The Family Law Act1975 (Cth) stresses the principle that parents should agree on matters of importance to their children. If they cannot, the court must determine them, and I am left in no doubt that in this case, this issue needs to be determined one way or the other. The application for summary dismissal is itself dismissed.

13. This matter will be referred back before Registrar Fitzgibbon, having regard to the number of other cases in this list and his availability to deal with the application to vary.

I certify that the preceding 13 paragraphs are a true copy of the reasons for judgment herein of the Honourable Justice Brown AM

Associate

17 October 2007