CHOATE & RAYMOND
[2015] FCCA 1596
•3 June 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CHOATE & RAYMOND | [2015] FCCA 1596 |
| Catchwords: FAMILY LAW – Children – parenting orders – application to vary earlier orders – application of the principle in Rice & Asplund – no change of circumstances sufficient to warrant re-opening of parenting proceedings. |
| Legislation: Family Law Act 1975 (Cth), ss.60CA, 60CC, 67Q |
| Cases cited: Carriel & Lendrum [2013] FCCA 284 Carriel & Lendrum [2015] FamCAFC 43 Choate & Raymond [2011] FamCAFC 19 Choate & Raymond [2012] FMCAfam 1441 Cortes & Cabrera [2007] FMCAfam 293 Hayman & Hayman (1976) 2 Fam LR 11,558; FLC 90-140 Miller & Harrington [2008] FamCAFC 150; (2008) 39 Fam LR 654; FLC 93-383; 220 FLR 300 Rice & Asplund (1978) 6 Fam LR 570; (1979) FLC 90-725 Raymond & Choate [2010] FMCAfam 451 Raymond & Choate [2011] FMCAfam 1108 Raymond & Choate [2013] FCCA 2262 SPS & PLS [2008] FamCAFC 16; (2008) 39 Fam LR 295; FLC 93-363 |
| Applicant: | MS CHOATE |
| Respondent: | MR RAYMOND |
| File Number: | SYC 2546 of 2007 |
| Judgment of: | Judge Scarlett |
| Hearing date: | 9 February 2015 |
| Date of Last Submission: | 9 February 2015 |
| Delivered at: | Sydney |
| Delivered on: | 3 June 2015 |
REPRESENTATION
| Solicitor for the Applicant: | Ms Murray |
| Solicitors for the Applicant: | Matthew Hammond Solicitors |
| Respondent: | In person |
| Independent Children's Lawyer: | Ms Power |
| Solicitors for the Independent Children's Lawyer: | Legal Aid NSW |
ORDERS
The Initiating Application filed on 3 November 2014 is dismissed.
The Application in a Case filed on 12 November 2014 is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Choate & Raymond is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 2546 of 2007
| MS CHOATE |
Applicant
And
| MR RAYMOND |
Respondent
REASONS FOR JUDGMENT
Application
This is an Application by the Mother of a girl called [X] who was born on [omitted] 2000 to discharge final Orders made by this Court on 16th December 2013. Those Orders provided that the child would live with her father, the First Respondent, and that the Mother be restrained from having any form of contact with the child (Raymond & Choate[1]). Essentially, the Mother seeks orders that the child should return to live with her and spend time with the Father.
[1] [2013] FCCA 2262
The Application is opposed by the Father and by the Independent Children’s Lawyer, on the basis that there are insufficient grounds to warrant reopening parenting proceedings, according to the principle in Rice &Asplund[2].
[2] (1978) 6 Fam LR 570; (1979) FLC 90-725
Background
The proceedings concern the parties’ daughter, [X], who was born on [omitted] 2000. Proceedings were first commenced in 2007, and there have been numerous appearances since then. The parties entered into consent orders on 16th July 2007 providing that the child would live with the Mother and contact would take place with the Father as set out in the orders. On 12th February 2008 Sexton FM made final orders providing that:
a)the child would live with the Mother;
b)the parties were to have sole parental responsibility for her on a day to day basis; and
c)the child would spend time with the Father each alternate weekend and on special occasions.
There have been five hearings, both interim and final, relating to this child since early 2010.
On 9th April 2010, Altobelli FM[3] made interim orders, discharging the Orders of 12th February 2008 and providing that:
a)the child would live with the Father;
b)the child would spend time with the Mother on alternate weekends, on Christmas Eve and Christmas Day, on the child’s birthday and the Mother’s birthday;
c)the operation of the above order was to be suspended for a period of three months; and
d)a recovery order was to issue under the provisions of s.67Q of the Family Law Act 1975 (Cth) (Raymond & Choate[4]).
[3] As his Honour then was
[4] [2010] FMCAfam 451
The Mother appealed against that decision. On 2nd February 2011 the Full Court of the Family Court dismissed the Appeal for want of prosecution (Choate & Raymond[5]).
[5] [2011] FamCAFC 19
The parties, including an Independent Children’s Lawyer, participated in a final hearing before Altobelli FM from 4th to 6th October 2011. On 17th November 2011 his Honour handed down his decision (Raymond & Choate[6]).
[6] [2011] FMCAfam 1108
The Court ordered that (in summary):
a)All previous parenting orders were discharged;
b)The Father was to have sole parental responsibility for the child [X];
c)The child was to live with the Father;
d)The child was to spend time with the Mother from 10:00am to 2:00pm on alternate Saturdays, the child’s birthday, the Mother’s birthday, and Mother’s Day, and also for four hours on Christmas Day in each year.
There were further proceedings the following year, when on 11th December 2012 Altobelli FM made interim and procedural orders, providing (relevantly) that:
(1)The mother be restrained from having any form of communication with the child [X] born [omitted] 2000.
(2)[X] is to spend time with the maternal grandmother as proposed by the father.[7]
[7] Choate & Raymond [2012] FMCAfam 1441
The parties attended a final hearing before Judge Altobelli on 16th December 2013. The following day, his Honour handed down these Orders:
(1) All outstanding applications be dismissed.
(2) All previous Orders are discharged.
(3)The Father have sole parental responsibility for [X] born [omitted] 2000 (“the child”).
(4) The child live with the Father.
(5)The Mother be restrained from having any form of contact or communication with the child.[8]
[8] Raymond & Choate [2013] FCCA 2262
On 3rd November 2014 the Mother filed an Initiating Application seeking interim and final orders discharging the orders of 17th December 2013 and substituting fresh parenting orders. The Application was given a return date of 29th January 2015.
On 12th November 2014 the mother filed an Application in a Case seeking that the substantive application should be listed urgently. She also sought orders providing that:
3. [X] to remain at [school omitted] till her year 9 School year is complete.
4. [X] be allowed to visit with her Mother, Brother and Grandmother at their home in [omitted] commencing on the very 1st Friday post Court hearing with Magistrate/Judge. Her Mother will return her to her Fathers Home the Sunday evening of that weekend at 8PM.
5. [X] be free to contact her Mother via phone, email, FB, Face time or anytime she feels is needed.
The Application in a Case was returnable on 15th December 2014. On that date, both the Mother and the Father appeared unrepresented. The Father made it clear that he opposed the Applications. I ordered that:
a)the Father was to file and serve a Response and a supporting affidavit within seven days;
b)the previous Independent Children’s Lawyer was to be reappointed; and
c)the parties were restrained from discussing the proceedings with the child.
On 9th February 2013 the Court heard submissions from the Mother’s solicitor, the Father, and the Independent Children’s Lawyer, Ms Power, as to whether the parenting proceedings should be reopened. Both the Father and the Independent Children’s Lawyer opposed any order reopening the parenting proceedings on the basis that there had not been sufficient change of circumstances to warrant such a course.
Orders sought by the mother
In her Application filed on 3 November 2015, the mother seeks the following final orders:
1.[X] to continue her Year 9 studies at [school omitted], till the end of the official School year.
2.In the upcoming Christmas School Holidays of 2014, [X] can return to live with her mother, Ms Choate her Grandmother and Brother Full time in [omitted].
3.[X] will commence [school omitted] for her 2015 School year. She will start year 10 and continue on to do years 11 and 12 in 2016 and 2017.
4.[X] will spend alternate weekends with her Father Mr Raymond commencing the second week after moving into her Mothers care. He will collect [X] from her home after he finishes Work alternate Fridays. (We will need to discuss dates and times)
5.Mr Raymond and I will share 50% each of all [X]’s School Holidays, although if [Mr Raymond] is unable to take time off work to spend with [X] on particular holiday breaks, she is to remain in her Mothers care.
6.Special Occasions as Christmas, Easter and Birthdays [X] will see and spend time with both her Parents on each of these days. Her Father can pick her up from her home at 3PM Christmas Day, and return her home the following Morning at 11AM.
7.On [X]’s 15th Birthday, [X] and her Father will work out an appropriate time/venue to see each other.
8.On Easter Sunday, if [X] is with her Father this particular weekend, she will be returned by 3pm, if in her Mothers Care, she will be dropped over to her Fathers home at 3PM, till 8PM that evening, where her Father will return her home.
9.On Fathers and Mothers Days, if [X] is in the care of the opposite Parent, they will drop [X] off to see that particular Parent at 11am that Sunday, and [X]’s Father will drop [X] back home to her Mother at 8PM on Fathers day.
10.If Parents Birthdays happen to fall on a School Day, (which they normally do) [X] will spend a Particular Day on the closest weekend with either her Father or Mother regardless of which Parents weekend it is/or the evening of said Birthday.
Evidence
The Mother relied on her affidavits of 28th October and 10th November 2014. Her evidence is that since 6th September 2014 the child has continued to seek contact with her, having made her way to the Mother’s home by taxi on the first occasion and by bus on the next occasion. She deposed that the child had made her way to her home after having had a fight with her father. She stated that the child is using alcohol and is not being properly supervised by the father.
Submissions
The Mother’s solicitor, Ms Murray, submitted that the child has now turned 15, which she did on [date omitted] 2015, and wishes to see and spend time with her mother and her half-brother. She noted that the child would attain the age of 16 years on [date omitted] 2016, when she might decide for herself where she wants to live.
The Independent Children’s Lawyer, Ms Power, submitted that the Court should not lightly entertain an application for change to the parenting arrangements. The child’s desire to live with her mother should not be viewed as a change of circumstances; she has always said that. It was further submitted that it is not in the child’s best interests to reside with her mother.
Ms Power submitted that the Court should read the decision of Judge Altobelli in the previous proceedings, where all the issues raised by the Mother were considered on the last occasion.
The Father made a similar submission, pointing out that the issues have previously been addressed. The Court had put an enormous amount of consideration into this case and there is no reason to reverse the existing orders.
The law to be applied
This is a case where the Mother is seeking to reopen parenting proceedings where an order has been made about where the parties’ child should live only eleven months previously. It is relevant to consider the principle stated in Rice & Asplund[9], which states that, where an order has been made in relation to the issue of where a child should live, the Court should not lightly entertain an application to reverse the earlier order, because to do so would be to invite endless litigation:
Therefore, the court would need to be satisfied by the applicant that…there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material…[10]
[9] supra
[10] (1978) 6 Fam LR 570 at 572; (1979) FLC 90-725 at 78,905 per Evatt CJ, Pawley SJ and Fogarty J agreeing
The Full Court approved the earlier decision of Hayman & Hayman[11] where Murray and Lusink JJ followed an unreported 1967 decision of Barber J in the Supreme Court of Victoria in a matter called Gilder v Gilder. In Hayman, their Honours quoted with approval this statement from Barber J:
However for me to reverse my previous order after such a short time, the father must show some changed circumstances which will justify such a serious step, some new factor arising since I made that order, or at any rate some factor which was not disclosed at the previous hearing and which would have been material.[12]
[11] (1976) 2 Fam LR 11,558; FLC 90-140
[12] (1976) 2 Fam LR 11,558 at 11,577; FLC 90-140 at 75,680
I had occasion to consider the rule in Rice & Asplund in the decision of Carriel & Lendrum[13], where I held:
57.The rule in Rice v Asplund was the subject of detailed consideration by the Full Court of the Family Court in Miller & Harrington[14], where their Honours considered the recent decisions of Warnick J in SPS & PLS[15] and Wilson FM in Cortes & Cabrera[16].
58.In my view, the decision is authority for the Court to proceed on the basis that the mother’s evidence should be considered at its highest[17] and that at, as Warnick J said in SPS & PLS at [81], when the threshold question described in Rice v Asplund is determined as a preliminary matter, it remains a determination “on the merits”.
59.Accordingly, the question for consideration must be – assuming the evidence of the mother is accepted, is there a sufficient change of circumstances to justify embarking on a hearing? (see Miller & Harrington at [105]).[18]
[13] [2013] FCCA 284
[14] [2008] FamCAFC 150; (2008) 39 Fam LR 654; FLC 93-383; 220 FLR 300
[15] [2008] FamCAFC 16; (2008) 39 Fam LR 295; FLC 93-363
[16] [2007] FMCAfam 293
[17] Miller & Harrington (supra)
[18] [2013] FCCA 284 at [57] – [59]
The decision in Carriel & Lendrum was appealed by the unsuccessful applicant in that case. On 25th March 2015 the Full Court of the Family Court dismissed the Appeal (Carriel & Lendrum[19]).
[19] [2015] FamCAFC 43
The circumstances in Carriel & Lendrum were similar to those in the present case, where the Mother was applying to vary orders made a relatively short time previously. In my view, the Court should ask itself the same question, that is, is there a sufficient change of circumstances shown by the Mother’s evidence, taken at its highest, to justify embarking on a hearing?
This question should, in my view, be considered in the light of the statement by Warnick J in SPS & PLS at [81]:
…Where an application is dismissed at a preliminary stage, it is not dismissed for some technical reason, such as the failure of a party to appear or some lack of compliance with form and procedure, but rather because, assuming the evidence of the applicant is accepted, there is an insufficient change of circumstances shown to justify embarking on a hearing. Though sometimes unstated, the underlying conclusion will, or ought to be, about the interests of the child in not being subjected to further litigation, is more powerfully in the child’s welfare, than to allow the application to continue (emphasis added).[20]
[20] [2008] FamCAFC 16; (2008) 39 Fam LR 295; FLC 93-363 at [18]
Conclusions
It is the Mother’s case that the parenting orders made on 17th December 2013 should be reversed, because:
a)the child is arguing with her father about boyfriends and other matters;
b)the child is drinking alcohol and using marijuana;
c)the child is not being adequately supervised by her father; and
d)the child is expressing a wish to see and communicate with her mother.
The Father and the Independent Children’s Lawyer both argue that there is nothing new in these complaints and the issue was considered very thoroughly by Judge Altobelli at the earlier hearing.
I have read his Honour’s decision thoroughly and note that he gave a detailed consideration to the issues, including the need to protect the child from being exposed to a risk of harm[21]. His Honour considered the evidence of the Court expert, Dr M, and said at [25]:
[21] [2013] FCCA 2262 at [20]
There was no serious challenge to Dr M’s evidence, and the Court accepts it.
His Honour gave serious consideration to the views of the child, saying:
35.I turn now to consider [X]’s views. There is no question that [X] wants to spend time and communicate with her mother. The issue is what weight the Court should place on her views…
36.Were this not a case where, in the Court’s opinion, there are such clear risk issues to [X], this would turn to be a difficult issue. As it is, it doesn’t stand in the way of the orders the Court will make. It is necessary to comment, though, about what I describe as the “elephant in the room”. I think all parties to this case and all the experts involved know that one day [X] will make up her own mind about these issues before the Court and she will probably vote with her feet but now is not the time. Dr M seems to think it shouldn’t occur before 16. The Court recognises all of this. However, there is no futility in making these orders.
37.[X] turns 14 soon. If, at 16 or some later age, she decides for herself what to do then the Court will be confident in knowing that, at least for the next two years, she will be in a caring environment where she will be physically, emotionally and intellectually nurtured and stimulated and where emotions will be appropriately regulated and managed, and where life events, ups and downs, will be contained and not amplified.[22]
[22] [2013] FCCA 2262 at [35] – [37]
As I said, I have read the earlier decision carefully. It seems to me, with respect, that the final paragraph of the decision, under heading “Conclusion”, indicates, with respect, the care that his Honour put into his consideration of the issues:
40.I asked a number of questions earlier in these reasons; have they been answered? Having regard to all the evidence and the reasons I have set out, the answers to the questions the Court has asked are as follows:
a)There is a risk of psychological harm to [X] if she spends time or communicates with her mother.
b)This risk is greater than the benefit to her of having a meaningful relationship with her mother.
c)This is a case where [X]’s views are to be given minimal weight due to the risk issues.
d)The mother still demonstrates poor insight into her condition.[23]
[23] [2013] FCCA 2262 at [40]
I have considered the Mother’s evidence at its highest, noting that she relies on two affidavits of 28th October and 10th November 2014. I have asked the question whether the Mother’s evidence shows a sufficient change of circumstances to justify embarking on hearing of an application to vary the parenting orders made late in 2013.
In my view, the answer is clearly in the negative. The fact that a teenage girl is having arguments with her father, her primary caregiver, is hardly surprising or unusual. That the child may be using alcohol or marijuana, whilst regrettable, is not a surprising occurrence. The Mother’s affidavit does not describe anything that is not being done by many other teenage children in this society.
The fact that the child is taking steps to contact her mother and go to see her mother, contrary to her father’s wishes, is not a change of circumstances. The Court considered the very question of the child’s wishes in the earlier matter, heard late in 2013.
The Mother’s evidence does not show any change of circumstances sufficient to justify embarking on a parenting hearing. The Application for final orders and the Application in a Case will both be dismissed.
I would comment that the Mother’s case was almost entirely without merit and it is difficult to understand why she decided to commence proceedings to reverse the parenting orders made on 17th December 2013 when she did, less than eleven months later. The Father was not legally represented in these proceedings but the Independent Children’s Lawyer may wish to apply for her costs.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Associate:
Date: 3 June 2015
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