Cook & Tracey
[2008] FamCA 74
•14 February 2008
FAMILY COURT OF AUSTRALIA
| COOK & TRACEY | [2008] FamCA 74 |
| FAMILY LAW – CHILDREN – With whom a child lives – Mother seeking to re-litigate residence issues- Open to the judge to dismiss the application on the basis that it failed to meet the Rice v Asplund test - No substantial change in circumstances or evidence likely to produce a significantly different result. Rice & Asplund (1979) FLC 90-725 |
| APPLICANT: | MR COOK |
| RESPONDENT: | MS TRACEY |
| FILE NUMBER: | SYF | 4466 | of | 2001 |
| DATE DELIVERED: | 14 February 2008 |
| PLACE DELIVERED: | Launceston |
| PLACE HEARD: | Hobart |
| JUDGMENT OF: | Benjamin J |
| HEARING DATE: | 17 December 2007 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Applicant in Person |
COUNSEL FOR THE RESPONDENT: | Mr Patrick Fitzgerald |
| SOLICITOR FOR THE RESPONDENT: | Legal Aid Commission of Tasmania |
Orders
The Response filed by the mother on the 27 July 2007 be dismissed together with all other outstanding applications.
This matter be removed from the list of cases requiring determination.
IT IS CERTIFIED
Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel and senior counsel to attend.
IT IS NOTED that publication of this judgment under the pseudonym Cook and Tracey is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT HOBART |
FILE NUMBER: SYF4466/2001
| MR COOK |
Applicant
and
| MS TRACEY |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
These are proceedings between the father and the mother in relation to their daughter (“the child”) born in October 1999, now aged 8.
The father, in his amended application filed on 26 October 2007 seeks orders ‘upholding the orders’ made in the Family Court of Australia on 25 January 2005 (“the Orders”). The father is unrepresented and this application was taken to be an application to dismiss the proceedings of the mother seeking a change in the parenting orders under part VII of the Family Law Act (“the Act”).
The mother seeks continuation of the proceedings to enable judicial determination of the application for orders she seeks in her Response filed 27 July 2007. In that response the mother seeks orders that the father spend time with the child as follows:
(a)in Sydney for one weekend every two months with such time to include the paternal family.
(b)for the first week of each of the May/June and September school holidays.
(c)each alternative Easter commencing each alternate year at Easter commencing in Easter 2008.
(d)in two blocks, each of one week’s duration, during the December/January holidays with such time to commence on the 26 December and the 30 January in each year.
(e)an Order that the father provide her with the child’s travel documents one month prior to such time occurring and in the event the father fails to do so the mother is under no obligation to send the child to Sydney.
(f)an order that the father pay her costs of and incidental to the proceedings
This application seeks to change the parenting Orders put in place by Le Poer Trench J on 25 January 2005 following a defended hearing (‘the Orders”).
BACKGROUND
Much of the early background is taken from the reasons of Le Poer Trench J delivered 25 January 2005.
The father is aged 46 years. The father resides in Sydney, NSW.
The mother is aged 35 years. The mother remarried in September 2003 and has a 3 year old son with her husband. The mother relocated to Tasmania in January 2006 with the child, her husband and her son. This relocation took place pursuant to the Orders.
The mother and father commenced their relationship in approximately 1998 and began living together in June 2000. The child is the only child of their relationship. The child has resided with her mother since her birth. The parties’ relationship broke down and they separated in February 2001 and the child remained primarily in her mother’s care.
Following separation the child had contact with her father each Friday from 3.00pm until Monday at 10.00am. He also saw her on Thursday overnight in the following week and also on a Tuesday overnight.
The history of the litigation between the parties is lengthy and complex. In June 2001 the mother filed an Application for Final Orders. In July 2001 the father filed an Application for residence and contact.
In April 2001 an incident occurred between the parties. On the 21 of June 2001 the father gave undertakings to a Court and as a consequence proceedings under the domestic violence provisions of the New South Wales Crimes Act were discontinued.
In September 2001 further domestic violence proceedings were commenced against the father for orders for the protection of the mother. These proceedings were concluded on the 28 March 2002 by the father giving written undertakings.
On the 23 of July 2001 interim orders were made in this Court which orders provided that the father have contact with the child three nights per fortnight.
In August 2001 the father filed an Application for Review of those interim orders. The application was heard on the 7 December 2001 and was dismissed.
The parties reached agreement and interim orders were made on the 15 October 2001.
On the 21 February 2002 the mother filed an Interim Application for orders that the father have supervised contact with the child. The mother also filed Notice of Risk of Child Abuse alleging that the father had been sexually inappropriate with the child. Interim Orders were made on the 21 March 2002 for the father to have supervised contact with the child.
On 25 February 2002 the father filed a Contravention Application, which was withdrawn by him in March 2002.
On 20 August 2002 an Expert Report was provided by Dr R.
The mother’s application proceeded to a Defended Hearing in October 2002. However, during the course of the hearing the parties reached agreement and final consent orders were made on 15 October 2002 which provided that the child live with her mother and have contact with her father.
On 14 October 2003 the mother filed an application to change the child’s surname to Tracey. The mother also applied for her husband Mr Tracey to be made the child’s guardian.
On 22 December 2003 the father filed a Contravention of Application.
On 18 of March 2004 interim orders were made by a Judicial Registrar which effectively halted contact in accordance with the consent orders made 15 October 2002.
On 24 March 2004 father filed and Application for Review. The Application was dismissed by a Judge on 30 April 2004.
On 31 March 2004 the mother filed an application seeking to relocate to Tasmania with the child. The mother’s husband, Mr Tracey, had obtained employment in Tasmania and had also been able to purchase land and build a house in Tasmania.
The father opposed the mother’s application and on 8 July 2004 filed a response seeking orders that the child reside with him.
The applications proceeded to a 4 day defended hearing in December 2004. On 25 January 2005 Justice Le Poer Trench made the Orders allowing the mother to relocate to Tasmania with the child in January 2006 and that the father “have contact with [the child] at such times and places as the parties may agree in writing”[1]. In the event that agreement could not be reached between the parties His Honour made specific provision for what contact the father was to have with the child.
[1] Paragraph 37 of the Orders.
On 23 November 2005 the father filed an Application for Final Orders seeking orders for residency of the child and also an Interim Application seeking an order that the mother be restrained from relocating the child’s residence from the Sydney Metropolitan area.
On 23 of July 2007 the father filed a Notice of Discontinuance of his pending applications. On 8 August 2007 the mother sought to pursue the orders sought in her response filed on 27 July 2007.
On 26 October 2007 the father filed an Amended Application to have the Orders dated the 25 January 2005 upheld. This was in effect an application to bring the parenting proceedings to an end.
On 17 September 2007 I heard the father’s application to reopen and gave him leave to withdraw his Notice of Discontinuance to enable the dismissal application to be determined.
ISSUES
The father argues that the principles of Rice v Asplund should apply in relation to the orders sought by the mother in her response, and if successful the mother’s application should be dismissed. The issues in this case are:
(a)Has there been some change of circumstances that would justify reconsideration, of the Orders made by His Honour Justice Le Poer Trench on 25 of January 2005?
(b)Whether or not there has been some change of circumstances, is it in the child’s best interest that the response filed by the mother proceeds to hearing?
The relevant legal principles to be applied
A statement of the relevant law is contained in the Full Court’s decision of F & C [2004] FamCA 568, where Kay, Warnick and O’Ryan JJ said:
“36 The Family Law Act 1975 provides in s65D that in proceedings for a parenting order, the court may make such parenting order as it thinks proper and that a court may make a parenting order that discharges, varies, suspends or revives some or all of an earlier parenting order.
“37. There are no guidelines or requirements contained in the Act as to when a court may refuse to entertain an application for the variation of an existing order, nor the matters that a court should consider in determining whether or not to entertain an application for the variation of an existing order, nor the matters that a court should consider in determining whether or not to exercise its jurisdiction (c/f s 83(2) – requirements to be satisfied before varying a maintenance order).”
The principles in relation to the protection of children from involvement in unnecessary litigation are identified by the Full Court in Rice v Asplund (1979) FLC 90-725 where the court stated;-
“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 and earlier custody order. To do so would be to invite endless litigation for change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that, to quote Barber J., 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 should have been material (passage quoted in Hayman and Hayman (Supra) at p.75,680). 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 find that there are circumstances which require the court to consider afresh how the welfare of the child could best be served. These principals apply whether the original order is made by consent or after a contested hearing. The way that they apply and the factors which will justify the Court in reviewing a custody order will vary from case to case.
Once the court is satisfied that there is a new factor or a change in circumstances, then the issue of custody is to be determined in the ordinary way. The court must apply the principles of sec. 64 and weigh up the factors for and against the proposals of each party, having regard to the welfare of the child as the paramount consideration. One of these factors is the length of time the child has been in a particular situation. Another is any earlier decision of the court, and the reasons for that decision. The possible advantages or disadvantages of a change in custody need consideration along with all the other usual factors. While the court should give weight to any earlier decision and, in particular, to any finding of tact, the judge is not bound by the earlier court’s assessment of the parties or views as to the best interest of the child”.
This decision has been affirmed in a number of cases and the general principle is that a fresh application for parenting orders should only be entertained by the court where there is a significant or substantial change in circumstances. In D & Y (1995) FLC 92-581 at 81,764 the Full Court held that a trial judge has discretion to determine whether there is a change in circumstances as a preliminary issue or to proceed to a full hearing.
More recently in King v Finneran (2001) FLC 92-07; Collier J, when determining an appeal from a Federal Magistrate held that the amendments to the Family Law Act in 1995 requiring a full inquiry of the matters set out in s68F do not disturb the trial judges discretion to make a threshold determination whether to proceed to a full hearing, stating at 88,367;
“41. The rule in Rice and Asplund is a rule evolved to protect children from the involvement in further unnecessary litigation. To require a court to make a detailed determination of the matters set out in section 68F would defeat the purpose of that protection. It would mean that before the matter could be dealt with, a complete hearing, or …at least a hearing dealing with the section 68F factors, would have to be undertaken and completed.”
42. A judge or magistrate exercising jurisdiction under the Family Law Act is not required to undertake the exercise of identification and evaluation that the husband urges. To do so would be to abolish for all effective purposes the opportunity of a court to make a threshold determination in cases where such an early end to the litigation was the best result for the children.
43. …It is clear that a trial judge has a discretion as to whether or not to deal with the matter at a threshold level or to embark upon a full hearing (see Bennett and Bennett (1991) FLC 92-191.
44. To apply the test in Rice and Asplund is to make an assessment on the material then available to the court as to whether or not the matters raised in that material make it necessary or proper in the best interests of the children, the subject of litigation, to allow further proceedings. In arriving at such a decision, the court will give consideration to the importance or seriousness of the issues raised, both individually and where necessary collectively, and the impact that they may have on the children. It may be necessary to assess whether or not the matters are indeed matters of change or whether they are completely fresh issues that require revisiting the earlier decision. This is not always a clear distinction.
…
49. Clearly, both words [‘significant’ and ‘substantial’] indicate something out of the ordinary course of events. To be either significant or substantial is to indicate that a matter is of importance, of consequence, of real worth, of ample or considerable amount, quantity, size etc. When related to a change in circumstances, this clearly requires that the change or changes relied upon must be of consequence and must be more than that which would occur by the passage of time or in the usual course of human activity.
50. … In D and Y (1995) FLC 92-581 their Honours of the Full Court made a finding that a trial judge has a discretion whether to deal with a change of circumstances as a preliminary issue or to proceed to a full hearing. Their Honours indicated that in the circumstances that prevailed in that case, that is, a nine day hearing a little more than two years previously, that a judge would be extremely loath to reopen the issue of custody, except on strong grounds. The word strong in that case is a departure from substantial or significant as used in earlier cases. It indicates clearly what is required. The change or fresh circumstance must be such that upon becoming advised of it and being satisfied of its existence, a court would be left in no doubt that it was necessary to relitigate the parenting issue in dispute between the parties. That is not to say that a court must be satisfied that the fresh or changed circumstance would result in a change to the orders. It merely indicates that the change or fresh circumstance must be such that if taken into account there is a real likelihood that a change may follow.
…
62. What is required is that a trial judge be satisfied that there has been demonstrated such a change that it must be a matter of concern and requires the court to examine the situation of the children afresh. There is no assistance to be gained from the authorities as to whether or not this can be done cumulatively. The law at present requires that there be a change such as to require re-litigation. That change can be made up of component parts or could rely on one single but major change. However, a cumulative basis for change in circumstances cannot be made simply by weight of numbers of the changes alleged to have occurred.
…
64. … the purpose of the rule is to protect the children from exposure to further unnecessary litigation."
45. Although this point was not argued before us it may be that there is need to add a caveat to Collier J’s view that it may be sufficient to allow a fresh application to proceed if there is a “real likelihood that a change may follow”. In CDJ v VAJ (1998) 197 CLR 172 at 204; FLC 92-828 at 85,449; 23 Fam LR 755 at 780-781; the High Court determined an appeal concerning the circumstances in which a Full Court might admit further evidence in a parenting case. McHugh, Gummow and Callinan JJ said:
"[117] The discretion to admit further evidence obviously needs to be exercised with much care in parenting cases. The decision as to who should have the day to day care of children will so often be an agonising one, as indeed it is in the present case where both parents are anxious for their children's welfare. The advantage said to be attached to the opportunity of a judge at first instance to see and hear the witnesses on issues of credibility and the like may perhaps on occasions be exaggerated. Nevertheless, those advantages are likely to be real ones in a parenting case heard by a specialist judge whose decision will involve a choice of who will be a better 'custodian' of the children: sometimes either parent would be an excellent choice, and often neither would be ideal.
[118] The need for caution is particularly great when an order for a change in the residence of children has been made and the appellant seeks to tender further evidence pointing to changes in circumstances, outlook or apparent welfare. In all but the most ideal of circumstances, some time will be taken by children to adapt to their different situations. So too the public and private interest in the finality of litigation must be given some weight even in cases of this kind. The important private interests of children are unlikely, save in special circumstances, to be served by frequent displacements of them and the uncertainty of prolonged and repetitive proceedings."
46.Their Honours expressed the view that further evidence might only be allowed if it would clearly have led to a different conclusion. They said [CLR at 217-218; FLC at 85,457-85,458; Fam LR at 792] :
"[148]…New hearings are not to be ordered merely because there is a real chance that a different order might be made by a different judge or that there is a real chance that the order under appeal does not serve the best interests of the child. It is true that finality of litigation cannot play the part in the exercise of the s 93A (2) discretion that it does in the exercise of the discretion to order a new trial in common law proceedings. Nevertheless, it does have a role to play in the exercise of the s 93A (2) discretion. Whatever the limits of that role, it at least rules out the admission of further evidence where the appellant cannot establish any error in the making of the orders but seeks to have a new trial because on the whole of the evidence now available different orders might be made at that trial.
[149]…in the context of a case such as this one, the relevant purpose of s 93A (2) is to facilitate the correction of an error where that error has probably occurred because the further evidence was not before the primary judge. Because that is so, the proper exercise of the discretion in the circumstances of this case required the Full Court to be affirmatively satisfied of two things. The first was that, given the findings of the trial judge, the further evidence if tendered before him was likely to have produced a different result. It was not enough that the Full Court thought that, upon the whole of the evidence including the further evidence, another judge might make a different order. The second was that the best interests of the children required rehearing of the husband's application, notwithstanding that all members of the family would likely suffer stress, inconvenience and uncertainty as the result of a new hearing. In that context, the financial cost of a further hearing and its impact on the family could not be ignored.
[150] In some exceptional cases - those concerned with allegations of physical or psychological abuse of a child are an example - it might arguably be a proper exercise of discretion for the Full Court to admit further evidence and order a new hearing even though it is not reasonably satisfied that the evidence would have produced, or at a new hearing would now produce, a different result. In such cases, it may be enough that the court thinks that there is a very real risk, although not a probability, that the current order may actually endanger the child. The consequences for the child may be so grave that arguably the best interests of the child might require the admission of the further evidence and a new hearing to investigate all the available evidence. But if such cases would entitle the Full Court to order a new hearing, they should be regarded as truly exceptional. Ordinarily, even those cases are best left to be dealt with by an application, made pursuant to s 65E, to vary the order the subject of appeal…"
47. Though there may be important distinctions between the considerations bearing upon the receipt of further evidence on appeal and the reopening of a parenting order at first instance, it may be proper that a judge considering an application to relitigate a recently completed parenting case should bear such considerations in mind.
The decision of King and Finneran also provides insight into the nature of the change required to justify consideration of a fresh application, at 88,368: his Honour Justice Collier said:
“50…………The change or fresh circumstance must be such that upon becoming advised of it and being satisfied of its existence, a court would be left in no doubt that it is necessary to relitigate the parenting issues in dispute between the parties. That is not to say that a court must be satisfied that the fresh or changed circumstances would result in a change to the orders. It merely indicates that the change or fresh circumstances must be such that if taken into account there is a real likelihood that a change may follow”.
In the case of Bolitho and Cohen (2005) FLC 93-224; their Honours Justices Bryant CJ, May and Boland JJ agreed with and adopted the principles espoused by Collier J in King and Finneran and held that the trial judge had appropriately applied the relevant principles by identifying the changes in circumstances, which included the children’s wishes, the children’s maturity to express such wishes, the children’s relationship with the mother and their poor school performance. There was no error of principle or basis for the submission that it was inappropriate for the trial judge to reconsider the parenting orders or that the failed to give sufficient reasons for his decision to do so.
At paragraph 44 of the judgement their Honours adopt the principles espoused by Collier J in King v Finneran at 88,368, “Prior to allowing the parties to relitigate the issue of parenting arrangements, the court must be satisfied that there has been a significant change in the party’s circumstances. The change or fresh circumstances must be such that, on becoming advised of it and being satisfied of its existence, the court would be left in no doubt that it was necessary to relitigate the parenting issue in dispute between the parties. That is not to say that the court must be satisfied that the fresh or changed circumstances would result in a change to the orders. It merely indicated that the change or fresh circumstances must be such that if taken into account there is a real likelihood that a change may follow.”
In the recent decision of Parmo & Scott (No:2) [2007] FMCAfam 1039; Federal Magistrate Atobelli says:
5 “The rule in Rice & Asplund is not an exception to the principle contained in s.60CA of the Act that in deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration. Rather that the rule being an exception to the paramountcy principle, it is in fact, a manifestation of it. The impact of conflict on children is well documented.”
6 “As the Full Court said in Rice v Aspland itself, “change is an ever present factor in human affairs.” Having regard to the impact on children of litigation concerning them, the change must be significant indeed. The benefits to them of revisiting the orders have to be substantial in order to justify exposing them to further litigation between their parents”
Since July 2006 the principles in the way courts deal with children’s issues under Part VII of the Act is governed by Division 12A of the Act. The Family Law Amendment (Shared Parental Responsibility) Act inserted Part 12A in the Act and the amendments apply to proceedings commenced on or after 1 July 2006 or proceedings to which parties consent and the court grants leave. In this case no consent has been given and the father’s application was filed prior to 1 July 2006. It is of value to look at the chronology of events;
23 November 2005 The father files an Application for Final Orders seeking orders under Part VII of the Act.
The father files an Application in a Case seeking a family report, variation of the Orders and appointment of an Independent Children’s Lawyer. That application was dismissed on 2 December 2005. Leave was granted for the father to restore the matter on 3 days notice in respect of 2005/2006 Christmas holiday time. The matter came back before the Court on 16 December 2005 and orders were made for that holiday period, i.e. December 2005 and January 2006.
21 February 2006 The mother files a response seeking orders for summary dismissal of the father’s application filed 23 November 2005 and for a declaration under s118(1)(c) and costs. This response sought no orders under Part VII.
3 May 2006The mother files an Application in a Case to transfer the proceedings to Hobart.
4 July 2006Proceedings transferred to the Hobart Registry of the Family Court.
10 November 2006 The father files an Application in a Case seeking interim orders under Part VII of the Act.
23 November 2006 The mother files a response in a case seeking interim orders under Part VII of the Act.
4 December 2006 Interim application of father dismissed and all outstanding applications in a case were dismissed.
21 February 2007 Application in a Case filed by father. That application was dismissed by order made 13 March 2007.
23 July 2007 The father files a Notice of Discontinuance of his primary application filed 25 November 2005.
At this stage there are no final or interim applications under Part VII of the Act and the proceedings are at an end. The only outstanding application is that of the mother seeking summary dismissal, an order under s118 and costs.
27 July 2007 The mother files a response to an application for final orders. In that response she seeks variation of the final orders and costs.
17 September 2007 Leave is given for father to withdraw his notice of discontinuance. This was in circumstances where the mother was pursuing the orders set out in her 27 July 2007 response.
The question then is whether this matter is governed by the provisions of Division 12A or not. A proceeding is defined under the s4 of the Act to include a cross proceeding. The document filed by the mother on 27 July 2007 by its nature was a new proceeding under Part VII of the Act and were from that time governed by the provisions of Division 12A. Did the leave granted to the father to withdraw his discontinuance restore his previous application and if so was that restoration as at 23 November 2005 or 17 September 2007? If the leave was a valid exercise of the courts powers then by allowing the father leave to withdraw his discontinuance must mean that the application filed 23 November 2005 remains on foot and as such the application was filed prior to 1 July 2006 and Division 12A does not apply.
Having regard to whether or not here has been a significant change in the parties circumstances which would justify a change to the orders made in January 2005 I need examine the evidence presented by the parties.
EVIDENCE
The father relied upon his affidavit filed on 12 December 2007 which sets out the history of the proceedings to date. The father is critical of the mother in relation to her failure to provide him with the child’s contact details after she moved to Tasmania in January 2006.
The father’s evidence is that the mother breached the contact orders made 15 October 2002 a total of nine times, the orders of 23 July 2001 four times and the orders of 20 October 2004 four times. However, despite these breaches the father says at paragraph a) on page 6 of his affidavit that he filed two contravention applications and gave up in frustration.
The father is also critical of the interviews undertaken on 29 or 30 October 2007 by Ms S in the preparation of her second report. At paragraph 27 of his affidavit the father says “I think you are negligent”. He has incorrectly nominated 29 November 2007 as the interview date, when it was actually about one month earlier.
The mother relied upon her affidavits filed on 16 May 2007 and 27 July 2007, the reasons for judgment of justice Le Poer Trench dated 25 January 2005 and the family reports of 17 April 2007 and 6 November 2007[2].
[2] List of documents relied upon by mother filed 14 December 2007.
In her affidavit of 26 May 2007 the evidence of the mother is that the Orders made in the Family Court on the 25 of January 2005 have not been complied with. The mother says the father has failed to correspond with the child or exercise contact with her in accordance with the orders. At paragraph 6 of the mother’s affidavit the mother says that the child did not have physical contact with her father until Christmas Day 2006 to the 22nd of January 2007. The mother says the contact did not progress well because she had difficulties contacting the child during this time[3] and that the child was withdrawn and not her “happy self” when she returned home[4].
[3] Paragraph 9 of the Affidavit of the mother filed the 16 May 2007.
[4] Paragraph 10 of the Affidavit of the mother filed the 16 of May 2007.
The mother says the child had limited telephone contact with the father up until October 2006, when he started exercising telephone contact on Tuesdays and Thursdays.
At paragraph 3 of her affidavit filed 27 July 2007 the mother says that between January and May 2007 “the father complied with the Court Orders and spoke to [the child] twice a week over the telephone”. However, the mother then goes onto say that since May 2007 “[the child] has had no communication from the father either by way of email, letters or telephone calls. There has had no physical contact by the father with [the child] since January 2007”.
The mother says that these reasons together with the recommendations of the family consultant amount to a change of circumstances and therefore the orders made by Justice Le Poer Trench on the 25 of January 2007 should be changed.
Has there been a change in circumstances ?
The substance of the father’s argument, is set out in written submissions dated the 17 of December 2007, is that the circumstances have not changed since the final hearing of the matter in December 2005 and therefore as the applicant he fails to meet the threshold test set out in Rice v Asplund.
In support of his argument the father says at paragraph 1 on page 4 of his submissions that the Family Report of 4 November 2006 “fails to identify any material circumstance which has changed, or so materially changed, as to warrant a reconsideration of the previous orders”.
The father at paragraph 2 on page 2 of his submissions that “all the evidence since June 2001 shows that the mother has continued to undermine [the child’s] relationship, and frustrate contact with her father and the change of behaviour in a negative sense towards her father whilst in the mother’s environment is well documented”.
At paragraph 6 of page 2 of his submissions the father says that there has been no change to the mother frustrating his contact with the child. He says this was foreseen by Justice Le Poer Trench and this was the reason why the mother was held back by 1 year from moving to Tasmania until 1 January 2006 and ordered to complete a Unifam parenting course.
Further at paragraph 6 of page 2 of his submissions the Father goes onto say that it was foreseen that he may continue to have financial difficulties in relation to spending time with the child once she relocated to Tasmania. Justice Le Poer Trench at paragraph 98 of his reasons for judgement says;
“I do have concerns that he would have the ability, even if fully employed in the company, to meet expenses in travelling to Tasmania to exercise contact with [the child] on a frequent basis”.
At paragraph 3 on page 3 of the father’s written submissions he says the current “order is far from being fundamentally flawed”. He goes onto say that “in fact the orders are reasonable even in the event that the father should relocated to Tasmania a new trial would be unnecessary.”
Finally at paragraph 4 of page 3 of the father’s written submissions he says “[The child’s] best interests are paramount and also the reduction in possibility of future litigation is an important factor and would affect [the child’s] and the parents stress and psychological welfare.”
Mr Fitzgerald counsel for the mother submitted that there has been a change of circumstances and as a consequence there is a “real likelihood” that a change to the orders would follow. The basis of mother resisting the father’s application is twofold.
Firstly the mother submits that by the father by filing his application for residency of the child on the 23 November 2005 caused the family report of the 17 April 2007 to be prepared. The mother relied upon the recommendations of the family consultant Ms S at paragraph 29 of the report which say:
“it is recommended that the current “contact” orders be updated as these have not operated during 2006”.
The family consultant refers to the “issues in dispute” including an evaluation of the child at paragraph 24 of her report where she says:
“The issues identified in this report include the parent’s compliance with the current orders. It is recommended that the time that [the child] spends with her father should be specified in greater details, to more easily enable compliance with the orders by both parents.”
……
“It is desirable for [the child] to feel fully satisfied with her time with her father. One of her main problems seems to be the length of time that she is in Sydney. It would be preferable for [the child] to have more regular, more frequent but shorter times with her father.”
The mother says that as a result of the difficulties with contact and the recommendations of the family consultant she filed her Response of 27 July 2007 seeking a change to the orders made by His Honour Justice Le Poer Trench on 25 January 2005.
Secondly, the mother relies upon the subsequent report prepared by the family consultant on the 6 November 2007 which refers to the dynamics of the child’s relationship with her father and recommends that the child spend shorter periods of time with her father at paragraph 19 of the family consultant says:
“[The child] says that she does not want to have more than a night or two with her father. This could be achieved if [the child’s] time in Sydney was interspersed with time spent with her grandparents, or if she had short weekend stays with her father during any time spend visiting Sydney with her mother. The mother’s response to the current proceedings accepted the “time with” proposal recommended in the April report, i.e one week in each term holiday and two blocks of 1 week during the summer vacation. The father was not happy to accept shorter times of a week as recommended. He is likely to find even shorter times less acceptable. However in the interests of building a more positive relationship with [the child’s] time with him shorter more frequent periods would be strongly recommended.”
Counsel for the mother submitted that the father cannot now argue that there has been no change of circumstances because the recommendations of the family consultant do not suit him.
The mother submits that if the family consultant’s recommendations set out in the reports of the 17 April 2007 and the 6 November 2007 are accepted then there is a real likelihood a change to the orders may follow.
In the family report dated April 2007, the reporter observed that the child;
“presents as a particularly pretty, lively, happy little girl. She is articulate and separated readily to be interviewed by herself”
Further in that report the family consultant said of the child’s concerns that;
“21 …. Her concern appeared to be about her father’s desire to move her back to Sydney and about her father’s ongoing family life in Tasmania”.
“22 [The child] was asked the most important thing she would like to tell the court. She said she would “like to live in Tasmania here”. She was asked what was the next most important thing might be if it was agreed she would live in Tasmania. She replied “only see him for 10 days”. [The child] was asked how she felt about flying to Sydney as an unaccompanied minor. She said “Yeah, ok”.
In many ways this reflected the view of the mother who was seeking, at that time to have the father’s application summarily dismissed and have him declared a vexatious litigant. This continued up until 27 July 2007 when the mother changed her application to one seeking variation of the Orders. The variation she seeks is as follows;
1She no longer seeks summary dismissal of the father’s application. That probably makes sense as on 27 July 2007 it has been discontinued.
2She no longer sought an order under s118 of the Act.
3She sought orders that the child spend the first week in each of the May/June and September school holidays with the father instead of the alternate first and second weeks provided in the Orders. This seems an inconsequential change.
4The mother sought alternate Easter breaks instead of equal time over each Easter break. This seems a curious application bearing in mind the mother’s submissions that the child needs less block time, as this would mean the child spending up to 10 days in the care of the father each alternate year instead of 5 days each year.
5The mother sought two blocks of one week over the Christmas/New Year period instead of one half of the Christmas/New Year holiday period. The accorded with the recommendations of the family reporter but seemed to take it much further.
6The mother sought orders that the father provide travel documents one month in advance.
7The mother made no provision for the child to spend time with the father during school term.
The father accepted the approach of the family reporter in her April 2007 report and discontinued his application. Nothing has changed in terms of the conflict between these parents and if history is a guide, nothing will change. The parties have engaged in litigation since separation and there have been precious few periods when the child’s life has been litigation free.
The mother complained in her documents to the court that the father was a vexatious litigant and he ought to be prevented from commencing proceedings without the court’s leave, yet when the proceedings were ended and in circumstance where she had an obligation to endeavour to find other non litigious means to resolve conflict as was required by s60I of the Act. The response of the mother ought not to have been accepted for filing in the absence of a certificate under s60I(7) of the Act.
The essence of the dispute is now the mother’s application to reduce time the father spends with the child over the Christmas school holiday periods and the time he spends with the child during school term. This change is based upon the material set out in the two family reports and on the face of the pleadings the concern is recent. The hearing of this matter will not occur until late 2008 or early 2009, bearing in mind the present resources of the court and current listing delays. It will need an up to date family report and will be the third trial to determine the appropriate arrangements for this child.
There are changes in the child’s circumstances, but I am not satisfied that those changes are sufficient to reverse or significantly vary the Orders and I am concerned that the continuation of the mother’s application would invite the continuation of the endless litigation that surrounds the child, which in my view is not in her best interests.
Is it in the child’s best interest to allow this litigation to continue? Even if I accept as I have, that there are changed circumstances I consider myself to have the power to dismiss the application if the proceedings are not in the child’s best interests. This is because the line of authorities dealing with the principle set out in Rice v Asplund make it clear that even if there has been a change of circumstances, they must be such as to justify the discharge of the Orders made by His Honour Justice Le Poer Trench on the 25 of January 2005.
In this case I cannot ignore the history of the litigation between the parties. The level of conflict between the parents is high and seems to be entrenched. The father is critical of the child’s relationship with her mother, brother and stepfather. The mother is critical of the father’s failure to exercise contact with the child until December 2006 and says that this reason together with recommendations of the family consultant is why she is seeking a change to the orders in her response filed on the 27 of July 2007.
These reasons need to be balanced against the benefit to the child of allowing the litigation between her parents to continue. If the father is unsuccessful in his application the child would spend more frequent but short periods of time with him each year. At the moment there is a relationship between the child and her father. If the father is unsuccessful in his application there is a risk that his relationship with the child will deteriorate further as he will be unable to afford the cost of spending time with the child for more frequent but shorter periods of time, as sought by the mother. The question is does this benefit outweigh the possible harm to the child of allowing the litigation to continue. I believe that it does. It is more important to protect the child from the adverse consequences of allowing this litigation to continue.
Accordingly I allow the fathers application.
I certify that the preceding 75 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin.
Legal Associate :
Date: 14 February 2008
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