Casano and Antipov (No 4)

[2015] FamCA 1071

FAMILY COURT OF AUSTRALIA

CASANO & ANTIPOV (NO 4) [2015] FamCA 1071

FAMILY LAW – CHILDREN –  Application to vary interim orders – in circumstances where the matter is part heard and interim orders were made after five days hearing pending further hearing – Rice & Asplund – Where it is determined that there is no change in circumstances – Application dismissed.

Casano & Antipov [2015] FamCA 765
Marsden & Winch [2009] FamCAFC 152
Rice & Asplund (1979) FLC 90-725

APPLICANT: Mr Casano

RESPONDENT: Ms Antipov

INDEPENDENT CHILDREN’S LAWYER: Ms Rowley

FILE NUMBER: PAC 3375 of 2015

DATE DELIVERED: 23 November 2015

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 23 November 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Blank

COUNSEL FOR THE RESPONDENT: Mr Ladopoulos

SOLICITOR FOR THE RESPONDENT: Legal Aid NSW Sydney Central Family Law

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Rowley

Orders

1. Leave is granted for the Applicant father’s affidavit sworn 23 November 2015 and the paternal grandmother’s affidavit sworn 23 November 2015 to be filed in Court.

2. The father’s Application in a Case filed on 9 November 2015 is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Casano & Antipov has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 3375  of 2015

Mr Casano

Applicant

And

Ms Antipov

Respondent

REASONS FOR JUDGMENT

1. This is an application made by the father in parenting proceedings to vary interim orders which were made on 16 September of this year following five days of hearing. The proceedings having been adjourned until March of next year.  I understand that the father has lodged an appeal against the interim orders but, in circumstances where no expedition has been sought with respect to the hearing of the appeal and, indeed, the father is seeking further time to file his material in relation to the appeal, there is no prospect of the appeal being heard prior to the resumed hearing in March 2016.

2. The father now seeks to vary the interim orders made on 16 September 2015 with respect to parental responsibility for the child and with respect to the orders relating to the time the father is to spend with the child.  This application is opposed by both the mother and the Independent Children’s Lawyer.

3. The father brings the application on two bases.  It is firstly submitted that he cannot afford what he describes as private supervised visits with the child, which he claims will cost in the order of $380.00 to $400.00 per visit, and he proposes, in lieu of the orders for supervised time with the child, a significant extension of the time provided for under the orders and that it be supervised by his mother, that is, the child’s paternal grandmother.

4. As far as the issue of the father’s financial position is concerned and the reasons for the order that the child’s time with the father occur at a contact centre, these matters were dealt with at paragraphs 67, 75 and, in particular, 78 and 79 of the judgment with respect to the interim orders.[1]  The father’s financial position set out in his affidavit in support of his application is virtually identical to his position that was considered in the first part of the trial and referred to in those relevant passages in the interim judgment.

   [1] Casano & Antipov [2015] FamCA 765.

5. The second basis upon which the father proposes the change – and this, in particular, relates to the order of parental responsibility and also the increase in time with the child – goes to, as I understand it, matters relating to the best interests of the child.

6. The issue of parental responsibility was considered between paragraphs 92 – 94 of the interim judgment and, in particular, in the conclusion at paragraph 94, I made reference back to all of the relevant best interest considerations which I have previously considered.

7. The second ground upon which the father seeks to reopen the proceedings relates in particular to a specific finding with respect to the impact upon the father’s mental health and his parenting capacity that may occur if his time with the child were significantly curtailed and particular reference was made to paragraph 85 of the interim judgment in that regard. That was one, albeit significant, best interest consideration, being parental capacity, but the balance of the judgment makes it clear that a number of other best interest considerations were taken into account and that the one to which I attached greatest weight was the need to protect the child from harm from being exposed to abuse.

8. I indicated, in my view, that before giving consideration to the application to vary the interim orders, the father needed to satisfy me, in accordance with the so-called rule in Rice & Asplund[2], that there was some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material, before I would consider reopening those proceedings.

   [2] (1979) FLC 90-725.

9. The issue of parenting was, of course, only considered a matter of months ago.  Initially, the father appealed but, as I have indicated, he has sought more time with respect to his appeal and has now abandoned his application for stay.  This application to vary is, in those circumstances, really an application that has been made at the eleventh hour, and although the parties did not oppose the matter being considered with respect to the issue of Rice & Asplund, they both submit that there are no changes in circumstances that would justify reconsidering anew the parenting arrangements.

10. In my view, there is not any change in circumstances, and although the matters which previously arose have been exacerbated due to the effluxion of time, it is insufficient for the matter to be reconsidered at this stage as it would not be in the child’s best interests.  As I have indicated, the issue of whether or not the father could afford the supervision – and he refers in particular to private supervision – was a matter that was previously considered.

11. It is not clear – the father has simply not addressed – why he did not avail himself of the more affordable option which was, in fact, the arrangement provided for in the orders and that is for the time with the child to occur at a contact centre, especially as – and it is clear from the judgment itself – inquiries had been made at the time that those orders were made and there was one contact centre that was available immediately for the father to start spending time with the child.

12. Instead of availing himself of that opportunity, the father effectively presents exactly the same evidence in support of his application to vary and says that he cannot afford private supervision.  As I have indicated, that matter was considered by me and I made a finding that I was not satisfied that the father’s financial state was an impediment which would have meant that the child would not spend time with his father.

13. The second area, as I have indicated, was, in particular, the matter referred to in paragraph 85 and that is the issue of the impact upon the child’s relationship with his father of a matter of months where they were spending no time together.  That issue was considered but I have to say that, once again, the orders that were in place were not that there was no time.  The orders were that there was a specific amount of supervised time and there was the capacity at that stage for that arrangement to have been immediately implemented.

14. The issue of the extreme reduction in the child’s time with the father and the impact that may have on both the child and the father’s relationship with one another and the father’s parenting capacity was considered and the decision was made notwithstanding the potential that may arise for the negative impact upon the relationship.  As I have indicated, greater weight was placed upon those other best interest considerations.  It was acknowledged that it may occur but more weight was given to the matters which I regarded of greater significance.

15. As far as the application of the rule in Rice & Asplund is concerned, the Full Court in Marsden & Winch[3] said that, in determining whether to revisit the parenting proceedings, the Court must look at, firstly, the past circumstances, including the reasons for the decision and the evidence upon which it was based; and, secondly, whether there is a likelihood of the orders being varied in a significant way as a result of the new hearing.  The past circumstances were matters which were explored over five days hearing prior to the interim judgment being given and detailed reasons for that interim judgment were given in a 24-page judgment where all of the best interest considerations were considered, including the particular two matters that the father relies upon again today.

    [3] [2009] FamCAFC 152 at [50]

16. In my view, there is no likelihood of the orders being varied in the way in which the father seeks, if the matter were to be reopened today.  The application involves, in my view, a significant variation because what the father is now seeking is a significant increase in the time that he spends with the child between now and the resumed hearing and also shared parental responsibility which, in this matter and these circumstances, could have a significant impact upon decision-making with respect to the child.

17. In circumstances where there was a lengthy judgment given with respect to the interim orders and a full exploration of best interest considerations following quite extensive submissions made by all parties, in my view, there is, as I say, no likelihood of the orders being varied in a significant way.  In each of these circumstances, I am not satisfied that it is in the best interests of the child in these proceedings for the parenting proceedings to be reopened and, accordingly, the application of the father is dismissed.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 23 November 2015.

Associate:

Date:  3 December 2015