Chorley and Chorley
[2009] FMCAfam 917
•1 September 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CHORLEY & CHORLEY | [2009] FMCAfam 917 |
| FAMILY LAW – Parenting – consent orders made in May 2007 giving the father substantial and significant time – application by father in December 2008 for equal time – father abandoning his application for equal time after the release of Family Report – father at hearing seeking one additional Sunday night each month. |
| Family Law Act 1975, s.60CC |
| Rice & Asplund [1979] FLC90 - 725 SPS & PLS (2008)FamCAFC16 |
| Applicant: | MR CHORLEY |
| Respondent: | MS CHORLEY |
| File Number: | DNC 160 of 2007 |
| Judgment of: | Terry FM |
| Hearing date: | 26 August 2009 |
| Date of Last Submission: | 26 August 2009 |
| Delivered at: | Darwin |
| Delivered on: | 1 September 2009 |
REPRESENTATION
| Applicant: | In Person |
| Respondent: | In Person |
| Counsel for the Independent Children’s Lawyer: | Ms Allan |
| Solicitors for the Independent Children’s Lawyer: | Mary M Allan |
ORDERS
That the father’s amended application filed on 5 August 2009 is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Chorley & Chorley is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DARWIN |
DNC 160 of 2007
| MR CHORLEY |
Applicant
And
| MS CHORLEY |
Respondent
REASONS FOR JUDGMENT
Introduction
[X] is 11. His parents have been separated for some years. Pursuant to consent orders made on 3 May 2007, [X] lives with his mother and spends substantial and significant time with his father.
The time [X] spends with his father is each alternate weekend from after school on Friday until Sunday evening, in each alternate week from after school on Wednesday until the commencement of school on Friday and for half of the school holidays.
The father wants to change the orders. The mother opposes any change.
Background
The father is retired and is in receipt of a Commonwealth Superannuation pension. He has remarried and his wife works part time [in the retail industry]. The mother has recently commenced full time work [in the child-care industry]. She does not currently have a new partner.
The parents each live in [P] and each lives in a two bedroom unit. [X] attends [B] School. He is a well liked child and is a promising cricketer.
Since the consent orders were made they have uneventfully been carried into effect.
The father’s original application to change the consent orders
On 10 December 2008, the father filed an application in which he sought equal time with [X]. The mother opposed the application, and to assist the court a Family Report was prepared by Mr Anthony Vidot.
The father told Mr Vidot that [X] was in favour of equal time. He showed Mr Vidot a letter [X] had written to this effect in January 2009.
When Mr Vidot asked [X] about the letter, [X] said that he had only a vague recollection of it and could not remember its contents.
Mr Vidot said as follows about [X]’ views:
“[[X]] rejected the contents of the letter when I read it to him. His strong preference was to continue the current arrangement. The only adjustment might be going to his father from school on the alternate Fridays and Wednesdays instead of at 6pm. He was not particularly fussed about such a change being necessary, but he thought it might be more convenient for him.”[1]
[1] Family report paragraph 36
Mr Vidot asked the father about why he was seeking to change the orders. Mr Vidot summarised the father’s response as follows:
“[The father] commenced talking about his application from the need, as he saw it, to regain some income from Centrelink, hinting that his pension was now an inadequate income. He made no mention of the income his current wife brings into their household. Originally, he claimed, Centrelink had given some payment on the 33% of the 2007 consent orders, but had adjusted their thresholds since. He now needed at least 35% of [X]’ time to access Centrelink parenting payments, and if he were to gain a Territory Housing Commission house, he would need at least 50% of [X]’ time. He was unsure about the latter figure and requirements.” [2]
[2] Family report paragraph 22
In his report Mr Vidot expressed the following opinion:
“It is very difficult for me to escape the thinking that Mr Chorley is focussed just on his benefits rather than on [X]’s. Although he came to a view that having a house and more money would be beneficial for [X], his demeanour and way of expressing himself appeared to undermine that thinking. I put it to him three times that his interest seemed to be primarily financial before he offered any comments about [X]’ best interests. In his defence, he argued that money, time and housing were inextricably linked. Seeing himself as only seeking more money for [X]’s sake seemed to be his basic rationale. However, what came through to me on balance was rather the reverse, namely increasing his time with [X] was his only lever to obtain benefits from Centrelink and hopefully Territory Housing”.[3]
[3] Family report paragraph 42
Mr Vidot considered other issues in his report, such as the appropriateness of the father’s parenting style. For reasons set out at length in his report he recommended that no change be made to the existing parenting arrangements.
The father’s amended application
The Family Report was released to the parties on 29 June 2009. On
5 August 2009 the father filed an amended application, in which he abandoned his application for equal time, and proposed instead that [X] spend one Sunday night each month with him in addition to the time provided for in the 3 May 2007 consent orders.
The mother opposed the application. On 26 August 2009 a hearing was conducted into the competing proposals of the parties.
One argument raised by the father in support of his amended application was that [X] favoured the change. In my view this is not the strongest point in the father’s case.
I accept the father’s evidence that he discussed his new proposal with [X] and that [X] told him that he had no difficulty with it. I accept the father’s evidence that [X] repeated this in the mother’s presence.
However, [X] also wrote a letter in January 2009 at the father’s behest (if he did not actually copy out a letter the father had written) in which [X] said that he agreed to equal time. In June 2009 when Mr Vidot spoke to [X], [X] only vaguely remembered the letter and rejected its contents.
In the Family Report Mr Vidot said as follows about [X]’ relationship with his father:
“[X] described how his father could scare him with his tone of voice, something that happened quite often.”[4]
[4] Family Report paragraph 40
During the hearing before me, the father was mostly placid and quietly spoken. However he became agitated and angry when cross-examining Mr Vidot, with whose report he strongly disagreed. The father is clearly capable to behaving in the way [X] described.
[X] might genuinely have no difficulty with the extra Sunday nights, but I cannot exclude the possibility that he went along with the father’s suggestion about this because he was reluctant to challenge the father and face the father’s displeasure, rather than because he viewed the change with any particular enthusiasm.
Nevertheless, even if [X] himself is not a strong advocate of a change, Mr Vidot conceded that [X] would cope with the additional nights the father now proposed, and I am satisfied that the father could meet [X]’s needs on the additional Sunday nights and get him to school on Monday morning.
There is nothing to suggest that the additional time would be detrimental to [X] and indeed the mother in opposing the change focussed not on any perceived detriment to [X] but on how the change might affect her financially. The mother was concerned that if the father gained the additional nights it might affect her entitlement to Centrelink benefits, and alter her situation as regards child support.
The stability of the mother’s financial situation is important for [X], but the mother expressed only a general concern that a change might affect her financially. She gave no specific evidence which would allow me to conclude that the change the father proposed would have a financial effect which would flow through to [X]’s detriment.
If then there is no evidence that the change would be detrimental for [X], why should the court refuse to make so small a change to the consent orders?
One powerful reason is that consent orders were made on 3 May 2007, and the father was not able to point to any change of circumstances since then which would justify arrangements for [X]’ care being revisited.
It has long been recognised that it is not in the best interests of children for their parents to be repeatedly involved in litigation about arrangements for their care. In the 1979 decision of Rice and Asplund [5] Evatt J said as follows:
“The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for, as counsel for the appellant submitted, change is an ever present factor in human affairs. 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 ….. These are not necessarily matters for a preliminary submission, but they are matters that the judge should consider in his reasons for decision. It is a question of finding that there are circumstances which require the court to consider afresh how the welfare of the child should best be served. These principles apply whether the original order is made by consent or after a contested hearing. The way they apply and the factors which will justify the court in reviewing a custody order will vary from case to case.”
[5] Rice & Asplund [1979] FLC90 - 725
In the 2007 case of SPS & PLS[6], Warnick J observed as follows:
“There are two matters of public policy that support the application of the threshold question even at the end of the hearing. Namely, that it is important that one judge not simply substitute his or her conclusion for another judge, unless there has been a change of circumstances to justify that course. Secondly, albeit the particular litigation has run, if no such rule is even considered in a general sense litigation will not be discouraged.”
[6]SPS & PLS (2008)FamCAFC16
I am particularly mindful in the case before me of the importance of discouraging further litigation.
The father said more than once when he was being cross-examined by the Independent Children’s Lawyer that when he signed the consent orders in April 2007 his solicitor told him to go along with them for now and then file another application after a little bit of time had passed. The father duly filed another application in December 2008.
Whether the father is accurately reporting his solicitor’s advice or not, the father certainly believes that he received this advice. He considers himself quite justified in having commenced proceedings in December 2008, even though he is unable to point to any change of circumstances which might require that arrangements for [X] be reconsidered.
The parties are not shy of litigation. They had a contested divorce. The father filed an application for parenting orders in December 2008 after consenting to orders in April 2007. I am concerned that if the father is successful in this application he may simply feel encouraged to bring further applications in the future.
I am also mindful of the fact that while there was no evidence that a small change would be detrimental to [X], the father was not able to satisfactorily explain how the extra time would benefit [X].
The father has no plans to do anything with [X] on the Sunday nights which he could not do on other nights. He already has substantial and significant time with [X] pursuant to the 3 May 2007 orders. [X] spends a good deal of his time when nominally in the father’s care either at friends houses or playing cricket. There is not necessarily anything wrong with this, but it is clear that the father is not seeking extra time with [X] because he does not get sufficient time at present to do the things he would like with [X].
It is disingenuous of the father to insist that he has no financial motive in seeking the additional Sunday nights.
The current order gives the father 122 nights with [X], or about 33.4% of nights. An extra nine nights would take the father to 129 nights, or 35.4% of nights. The father informed Mr Vidot only two months ago that he “needed at least 35% of [X]’s time to access Centrelink parenting payments.”
I do not accept that the father has not done this calculation. I reject his evidence that he has no idea how gaining the extra nights would affect him financially.
Conclusion
The change sought by the father may be minor, and [X] would no doubt cope if the change was made. However the father was not able to demonstrate that the change would be of any benefit to [X], and I consider that the father’s application was motivated by a desire to improve his own financial circumstances.
There has been no change of circumstances since the 3 May 2007 orders which would justify the arrangements for [X]’ care being revisited, and it is important that the parties be discouraged from repeatedly litigating about the arrangements for [X]’ care.
I intend to dismiss the father’s application. The effect will be that the
3 May 2007 consent orders will continue in force.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Terry FM
Associate: Barbara Cameron
Date: 1 September 2009
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