Blainey and Starr

[2014] FCCA 1698

FEDERAL CIRCUIT COURT OF AUSTRALIA

BLAINEY & STARR [2014] FCCA 1698

Catchwords:
FAMILY LAW  ̶ Whether change in circumstances justifies reopening of children’s orders.

Legislation:

Family Law Act 1975 (Cth), s.60CA

Rice & Asplund [1979] FLC 90-725

Blainey & Starr [2011] FMCAfam 988
DL & W [2012] FamCAFC 5

Applicant: MS BLAINEY

Respondent: MR STARR

File Number: MLC 871 of 2010

Judgment of: Judge Phipps

Hearing date: 13 May 2014

Date of Last Submission: 13 May 2014

Delivered at: Dandenong

Delivered on: 1 August 2014

REPRESENTATION

The Applicant: Appearing on their own behalf

Counsel for the Respondent: Mr Goddard

Solicitors for the Respondent: DBFS Lawyers

ORDERS

1. The application filed 25 March 2014 is dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

MLC 871 of 2010

MS BLAINEY

Applicant

And

MR STARR

Respondent

REASONS FOR JUDGMENT

1. The applicant mother filed an application on 25 March 2014 applying for the suspension of orders made 15 September 2011 concerning the parties’ children X born (omitted) 2003 and Y born (omitted) 2006.  The respondent father applies for dismissal of the application applying the rule or principles in Rice & Asplund [1979] FLC 90-725.

2. The orders made 15 September 2011 by Judge Cole (then Federal Magistrate Cole) provide as follows:

   a)The mother and father have equal shared parental responsibility for the children;

   b)The children live with the mother;

   c)The children spend time with the father as follows:

   i)For a period of 12 consecutive weeks from the date of these orders, from the conclusion of school each alternate Friday until 5.00pm Saturday and from the conclusion of school each alternate Wednesday commencing the following week until 7.00pm Wednesday evening and then;

   ii)For a further period of 12 consecutive weeks, from the conclusion of school each alternate Friday until 12.00pm Sunday and from the conclusion of school each Wednesday commencing the following week until 7.00pm Wednesday evening and then;

   iii)From the conclusion of school each alternate Friday until the commencement of school the following Monday and from the conclusion of school each Wednesday until the commencement of school on Thursday.

3. The order made provision for school holidays and special occasions.

4. The order was made after a contested three day hearing before Judge Cole.  His Honour’s reasons for judgement are annexed to the father’s affidavit.  The decision is Blainey & Starr [2011] FMCAfam 988.

5. The Rice & Asplund principle was examined by the Full Court of the Family Court of Australia in DL & W [2012] FamCAFC 5 particularly in paragraphs [66] – [73]. The principal is an application of s.60CA of the Family Law Act 1975 (Cth) that the best interests of the children is the paramount consideration in making parenting orders. It is a two-step process. The Full Court in DL & W at [73] included a quotation from Marsden & Winch [2009] FamCAFC 152 at [58]:

   58.    ...there is a requirement:

   (1)    for a prima facie case of changed circumstances to have been established; and

   (2) for a consideration as to whether that case is a sufficient change of circumstances to justify embarking on a hearing.

6. The Full Court in DL & W at [67] said:

   The legislation itself now expressly directs judicial officers to have regard to the potential impact of proceedings on the welfare of children. As the Full Court pointed out in Miller & Harrington [2008] FamCAFC 150; (2008) FLC 93-383, the provisions of 69ZN of the Act, which prescribes “principles for conducting child-related proceedings”, apply to a hearing in which Rice and Asplund is invoked. Subsection 69ZN(3) provides (our emphasis):

   The first principle is that the court is to 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.

7. And then at [74] a quotation from Warnick J in SPS & PLS and 311:

   The essential question, however, is as to the sufficiency of new events to provoke a new enquiry. The answer to this question involves putting the events in context in the broader circumstances pertaining to the arrangements for a child and measuring the significance of the events against the significance of the steps that might follow in light of them.

8. The parties commenced cohabitation in 2002 and separated in January 2010.  The mother’s affidavit commences by referring to the history of the father’s mental health.  The father had a breakdown in November 2009 and Judge Coles’ reasons record that the father conceded that in the months leading up to this breakdown his abuse of alcohol and drugs increased.  The evidence before Judge Cole included evidence from two psychiatrists, one the father’s treating psychiatrist, the other an independent psychiatrist and the father’s general practitioner.  The evidence before Judge Cole was that the father suffered a major depressive episode.  Judge Cole records the opinion of the independent psychiatrist Dr G that the father had some risk of further depressive episodes and could be at risk of substance use at times of stress.  Dr G described it as “this seemingly modest risk”.

9. The mother’s affidavit does not claim that the father is suffering from depression or that he has suffered any further depressive episode since the orders were made in September 2011.  She does allege that the father has been drinking alcohol, something the father acknowledges, but she does not allege that he is abusing alcohol.

10. In her affidavit the mother describes a number of things under the heading “Problems I have had with the care of the children while with Mr Starr”.  She then sets out a number of matters although she gives no dates.  She says that Y has a special programme at school for her reading and needs to be on time at school for a one-on-one reading session.  She alleges that “the teachers at school and or the reading teacher” have written to her asking why Y is not at school on time to attend her classes and why her reading work is not completed on certain days and it is on others.  The mother does not produce the letter nor name the teacher or teachers if it was more than one.

11. She says that for many months she has met the father before school to help get the children ready but says it still concerns her that the father is not getting the children to school on time and unable to organise them.

12. The mother says that X is highly allergic to insect bites and mosquitoes and needs regular doses of antihistamine.  She says Y has a similar reaction but not quite as severe.  She says the children have come home from the father’s on countless occasions covered in hard infected lumps from the reaction to the bites.  She says he is not giving the children the medication they need.

13. She says X has a lazy bowel and needs a dietary fibre supplement.  She says she has explained it to the father and asked him to give it to the child daily but she claims the father does not and X comes home very stressed, he cannot have a bowel movement and sits on the toilet for long hours crying.  She does not say whether or not this problem has been diagnosed by a medical practitioner or whether X has been treated.

14. The mother says there has been an ongoing problem at the school with nits.  She says that Y has come home from the father’s so infested with nits she has weeping sores on her head.  She claims over 200 nits were in Y’s hair and they had bitten into her head leaving sores.  Again, she does not give dates or the number of occasions.  During school term time the children spend three nights with the father once a fortnight and one night every week.  The mother does not say whether on any of these occasions she was aware of the infestation prior to the children spending time with the father nor does she say how she reached the conclusion that there were over 200 nits in Y’s hair. 

15. The father in his affidavit says that these allegations are not new and were canvassed at length in the previous litigation.  He denies the allegations.  He says that he helps the children with home work and attends to treatment of head lice and other medical issues.

16. The mother has another heading in her affidavit “The growing concerns I have of Recent Behaviours”.

17. She says that the children were meant to have Christmas dinner with the father and his family and she says she went to a lot of trouble contacting him.  She says he was fine Christmas morning, came to the house and then to her partner’s parents’ house.  She then says he did not make it for dinner.

18. The father gives a detailed description of what occurred on Christmas Day.  He says that the mother and he planned that she have the children for lunch and he have the children for dinner.  He asked the mother if he could spend a little time with the children in the morning while opening their presents and she agreed.  He says that happened, went well and he dropped off the children at the mother’s parents’ house.

19. He says that mid-morning Christmas Day he received a phone call from the mother stating she was stuck with the children because she had a flat tyre then goes on to give a detailed description of what occurred.  In the end the children did not have Christmas dinner with him.  The father’s description of what occurred is straightforward.  He saw the children the next day.

20. The mother says her grandmother became very ill on Boxing Day and died although the mother does not say how long after.  It is difficult to follow what the mother is alleging although she claims the father started yelling at her at one stage.  The mother says that she received a text saying he was sorry he had been taking Endone and Panadeine Forte.  The father says he was prescribed pain relief as a result of toothache and annexes a copy of the prescription.  He does not dispute the mother’s allegation of yelling.

21. The mother has a further heading “My Greatest concerns”.  The mother’s concern is that the husband is drinking alcohol.  She refers to allegations that he drank water to excess when having drug tests, but that is something which occurred prior to the orders being made in 2011 and is dealt with in Judge Cole’s reasons.  The mother says that the father should not drink alcohol.  The orders made by Judge Cole do not prohibit him from having alcohol.  At paragraph [60] of his judgement Judge Cole said:

    In addition, the father conceded (rightfully) that he had resumed having some alcohol and had disclosed this to Dr N and to Dr G, the independent expert.  The mother was of the view that the father was an alcoholic and that any resumption of drinking would lead to a resumption of the behaviours that led to the events in 2009.  Once again, his choice to have the occasional beer or can of Bourbon (and the evidence is that it was one or perhaps two) fits into the concerns of the mother

22. At [102 – 106] Judge Cole said:

    102.  There is no doubt that the father in 2009 was abusing alcohol, illicit drugs and was depressed.

    103  The case was attempted to be made that he was an alcoholic.  This was rejected by all the experts.  Whilst it was conceded that he may have been alcohol dependent, it was not conceded that this translated into the father being diagnosed as an alcoholic.  All three, but more importantly, the two psychiatrists took the view that his alcohol dependency and non-dependent abuse of amphetamines occurred in the context of major depression.

    104.  There is also agreement that he has generalised anxiety disorder.

    105.  Dr G’s opinion was that Mr Starr does not currently suffer from a major depressive episode.  His depression is in full remission.  He does drink alcohol but not does not, to the best of his knowledge, abuse alcohol or other substances.

23. The matters raised by the mother, either alone or in combination do not show a change in circumstances.  The mother raises issues about the father’s care of the children, schooling and health issues.  Judge Cole said at [46(b)] “her evidence only too often comprised of broad sweeping allegations with little or no evidence to support it”.  Much of what the mother alleges is in this category.  Her claim about Y being late for school and not doing homework is based on a reference to a letter or letter from unidentified teachers without any reference to dates.  In her claims about health issues she does not give dates nor the number of occasions.

24. Her complaints about the father’s behaviour at Christmas and her grandmother’s death are hard to understand.  She says that the father’s agreed visit to the children on Christmas morning went well and then alleges that he did not collect them for dinner.  She gives no detail about what happened unlike the father who does give a detailed explanation.  If there was some confusion about the need to alter changeover arrangements on that day that does not justify changing the orders.

25. The most the mother alleges about events around her grandmother’s death are some cross words from the father for which he later apologised.  This does not justify changing the orders.

26. The mother claims that the father should not drink alcohol.  The passages from Judge Cole’s judgement set out above show that this issue was dealt with at the trial.  The evidence the mother gives of the children telling her that the father drinks alcohol discloses no greater use of alcohol than that described in Judge Cole’s reasons.

27. If I am wrong in concluding that there has been no change in circumstances, then applying the second step in the Rice & Asplund process, the change does not justify the reopening of the whole case.  If there is a change it is that the father’s ability to deal with schooling and health issues is not as was expected at the time the orders were made in 2011.  He had seen the children on supervised basis up until then and so did not have to deal with schooling and health issues.

28. If I assume that if the case proceeds the mother could produce proper evidence that Y was late for school and missing reading lessons, and that she was not doing homework when with her father this would not justify changing the orders.  The mother does not allege a change in the children’s relationship with their father since the orders were made.  The orders were made on the basis that the children’s relationship with their father and the benefit to them of that relationship meant that orders that they spend alternate weekends Friday afternoon to Monday morning and one day overnight each week was in their best interests.  Some problems with the father’s attention to schooling and health would not justify a change.

29. Again, if the mother produced evidence that showed that the father was not attending to health issues of the type she alleges the same applies.  It would not justify a change to the orders.

30. There is not a sufficiency of new events to provoke a new enquiry.

31. The application must be dismissed.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Phipps

Date:  1 August 2014