Cortes & Cabrera
[2007] FMCAfam 293
•16 May 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CORTES & CABRERA | [2007] FMCA fam 293 |
| FAMILY LAW – Children – parenting orders – variation – threshold test – approach to be taken in determining whether threshold test satisfied. |
| Family Law Act1975, ss.62G, 64B Federal Magistrates Court Rules; 15.09 |
| Rice & Asplund (1979) FLC 90-725 Bennett & Bennett (1991) FLC 92-191 King & Finneran (2001) FLC 93-079 F & C [2004] FamCA 568 CDJ v VAJ (1998) 197 CLR 172 R & BH [2006] FamCA 919 L & L (1992) FLC 92-274 Saad & Saad (1993) FLC 92-332 |
| Applicant: | MR CORTES |
| Respondent: | MS CABRERA |
| File number: | BRM9063 of 2006 |
| Judgment of: | Wilson FM |
| Hearing date: | 14 February 2007 |
| Date of last submission: | 14 February 2007 |
| Delivered at: | Brisbane |
| Delivered on: | 16 May 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr M Byrne |
| Solicitors for the Applicant: | Hatzis Lawyers |
| Counsel for the Respondent: | Mr M Kent |
| Solicitors for the Respondent: | Simonidis Shoebridge Lawyers |
ORDERS
That the application filed 22 November 2006 be dismissed.
That the applicant pay the respondent’s costs of and incidental to the application to be taxed, if not agreed.
IT IS NOTED that publication of this judgment under the pseudonym Cortes & Cabrera is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRM 9063 of 2006
| MR CORTES |
Applicant
And
| MS CABRERA |
Respondent
REASONS FOR JUDGMENT
The applicant father, by application filed 22 November 2006, seeks interim and final parenting orders, as that term is defined in s.64B Family Law Act1975 (“the Act”) in respect of two children: [X], born in 1991 (now aged almost 16) and [Y] born in 1993 (now aged 14).
The applicant also seeks an order that a family report be prepared pursuant to s.62G of the Act or Rule 15.09 Federal Magistrates Court Rules, to assist the Court in determining what parenting orders might be appropriate.
The respondent mother seeks an order that the father’s application be dismissed. She does so on two bases:
a)In the exercise of its discretion under s.60CA of the Act, the Court should not make any further parenting orders in respect of the two children;
b)The applicant has not discharged the onus he bears to vary parenting orders previously made by the Family Court of Australia.
The matter was listed for interim hearing. The respondent mother submitted that the father’s application should be summarily dismissed as it did not overcome the threshold imposed by cases such as Rice & Asplund (1979) FLC 90-725. The applicant served a further affidavit very late. The respondent sought an adjournment to enable an affidavit to be filed in response. As the respondent mother seeks, in effect, to have the applicant father’s application summarily dismissed, questions arise as to the procedure to be adopted on this application. The first question is whether the threshold question should be decided as a preliminary issue, or whether there should be a full hearing of the evidence. The second question is, assuming that the threshold question is decided separately, how the evidence adduced by the parties should be treated for the purpose of determining that issue. For example, if the Court looks only to the affidavit evidence adduced by the applicant and determines whether, on that material, the case should be allowed to go forward, then it seems to me that there is no point allowing the respondent to put on further affidavit evidence. On the other hand, if in determining the threshold issue, the Court effectively conducts a mini-trial then the respondent should be afforded the opportunity she seeks to adduce further evidence in reply to that served late by the applicant.
Before dealing with those issues, it is necessary to set out the background to the present application, as it is disclosed in the affidavit material. For reasons that will emerge, I will do so initially by reference only to the applicant’s affidavit material.
In his first affidavit, the applicant father states the following relevant facts:
a)Consent orders were made on 8 August 1996 regarding the parent with whom the children were to live, and the time the father was to spend with the children;
b)Since approximately 2001 the father has seen the children every Thursday evening, every second weekend, and for half of the school holidays;
c)Since August 1996 his working conditions have changed in that he is working less hours. Whereas he was previously [omitted] proprietor, and running a [omitted], he now employs a full time [omitted] manager;
d)He remarried in January 2004;
e)In 2005 his wife gave birth to a son;
f)He has been attempting to negotiate spending further time with his two older sons, but this has been rejected by the respondent;
g)At paragraph 13, that the children have expressed to him that they wish to enter into a shared care arrangement, whereby they could live week about with each parent;
h)The children enjoy a good relationship with his second wife;
i)At paragraph 20, the older children are at an age where he believes they would like to spend more time with their father, and would benefit from doing so;
j)At paragraph 21, upon discussing spending more time with the children, both have said that the mother has told them that if they agree to a shared care arrangement, she would move to France and they would never see her again;
k)The respondent has resumed working full time and the maternal grandparents often look after the boys, but would not do so if the boys agreed to a shared care arrangement.
The consent orders referred to were not exhibited to this affidavit. Nor was other correspondence referred to in it. In an attempt to remedy this oversight, the applicant filed and served a further affidavit. However, this second affidavit went beyond merely attaching documents that were previously omitted. The new evidence in the second affidavit is:
a)At paragraph 9 – that the applicant’s application to have his assessment of child support varied was in no way linked to his desire to spend more time with his children;
b)At paragraph 16 – that the children have expressed a wish to spend more time with him, and have informed him of their fear and hesitation in being open and discussing this with a third party as they fear how their mother will react;
c)Paragraph 17 regarding his relationship with his second wife, and their relationship as a couple with the children;
d)Paragraph 19 which deals with how his second wife encourages his relationship with the children, and expressing the opinion that it is in the best interests of the children that they spend time with both families and take advantage of contributions that each can offer to them;
e)Paragraphs 24 and 25 which deal with the priority accorded to the children’s education and study regimes;
f)Paragraph 30 which deals with current arrangements for transporting the children to and from school. The applicant says that it would be of educational and emotional value for the children to spend time with their father after school, which would in turn relieve the maternal grandparents of responsibilities in this regard;
g)Paragraph 31 in which the applicant asserts that he has proven his reliability since separation in 1994;
h)Paragraph 34 in which the importance of education to members of the applicant’s extended family is enlarged upon;
i)Paragraph 35 in which it is stated that the children’s aunt is available to tutor them and provide assistance with their school work;
j)Paragraph 36 which emphasizes the importance of extended family in families with Greek heritage, and that shared care would embrace this culture and allow more time to be spent with the children with their extended family;
k)At paragraphs 37 and 38 which records how difficult it has been for the applicant to spend special days with the children since the consent orders were made; and
l)Paragraph 40 which contends that a male role model is important to the children and he should spend more time with them.
It is likely that the respondent will want to join issue with a number of the new assertions made by the applicant. If I form the view that the threshold issue requires a consideration of contested affidavit material, and for findings of fact to be made, I would allow the respondent the opportunity of putting on further affidavit evidence, and for both parties to have the opportunity to cross examine the other.
The threshold issue, as I have described it, is often ascribed to the decision of the Full Court of the Family Court in Rice & Asplund (1979) FLC 90-725, although the principle predates that decision. The Act permits the Court, by s.65D, to make a parenting order that discharges, varies, suspends or revives some or all of an earlier parenting order. There are, however, no guidelines in the Act as to when a Court may refuse to entertain an application for variation or discharge of an existing order. The Act does not prescribe the matters that the Court should consider in determining whether or not to exercise its jurisdiction to so act.
In Rice & Asplund Evatt CJ said at pp.78,905-6:
“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 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 circumstances 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 (passage quoted in Hayman and Hayman (supra), at p. 75,680). These are not necessarily matters for a preliminary submissions, 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.
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 findings of fact, the judge is not bound by the earlier court’s assessment of the parties or views as to the best interests of the child. These are matters which cannot be determined by any fixed or absolute standard.”
There the Full Court stated that these were not matters for a preliminary submission. However, later cases have ameliorated that position. In Bennett & Bennett (1991) FLC 92-191 the Full Court of the Family Court said, in a joint judgment, at p. 78,262:
“As to the second point, it is, we think, a matter of discretion as to whether a Judge embarks upon a full hearing of a matter or determines the threshold question as to a change in circumstances. This is in no way to derogate from the general principle expressed by the Full Court in Rice and Asplund (1979) FLC 90-725, and in Zabaneh and Zabaneh (1986) FLC 91-766, that fresh application for custody should not be entertained unless there exists a substantial change in circumstances. In some cases, however, and her Honour apparently considered that this was one of them, it is not easy to determine the threshold question without going into the merits of the matter. Obviously, if this is done, and as a result of taking such a course, the trial Judge comes to the conclusion, as her Honour did, that a change of custody is warranted in the interests of the child, then it would be unthinkable not to give effect to such a conclusion upon the basis that no change in circumstances had been shown. The fact that the determination as to whether or not to deal with a change in circumstances as a preliminary issue or to proceed to a full hearing is a discretionary matter, is supported by the remarks of the High Court in refusing leave to appeal in the recent case of Lowe v Lowe (6 April 1990).”
In King & Finneran (2001) FLC 93-079 at p. 88,367 Collier J said:
“40. Clearly, in Rice and Asplund itself and the following authorities, there is no indication or guideline as to the manner in which the court is to reach its determination as to whether or not the matter will be dealt with as a threshold test.
41. The rule in Rice and Asplund is a rule evolved to protect children from involvement in further unnecessary litigation. To require a court to make a detailed determination of the maters 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 as I understand the appellant’s submissions 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. The husband’s line of argument in this regard is flawed. It is not the case that an application of the Rice and Asplund test divides or compartmentalises a matter into a threshold component and a merit component. It is clear that a trial judge has a discretion as to whether or not a 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 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.
…
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 required 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.”
In F & C [2004] FamCA 568 at [45] the Full Family Court added a caveat to the observations of Collier J. Their Honours thought that similar considerations to those referred to by the High Court in CDJ v VAJ (1998) 197 CLR 172 at 204 should be applied in determining whether or not to permit the reopening of previously settled parenting issues.
Finally, in R & BH [2006] FamCA 919, the Full Family Court dealt with an application for summary dismissal of an application to vary earlier parenting orders. Their Honours at [32] said:
“32. We accept as an appropriate exposition of the law the observations of the Full Court in Bolitho v Cohen (2005) FLC 93-224. When discussing the application of the principles in Rice and Asplund the Court said:
44. In King v Finneran, a case decided after the Family Law Reform Act 1995 (Cth), Collier J, when discussing the nature of the change required to warrant further consideration of a fresh application at 88,368, said:
“The words in any event are not words of necessarily strict dictionary definition. 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 (sic) 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.”
45.We agree with and adopt the principles espoused by Collier J in King v Finneran set out above.”
In my view, the above authorities amply demonstrate that before the court will entertain an application to vary or discharge existing parenting orders, the applicant must show changed circumstances of sufficient significance to warrant the court embarking again on the determination of what parenting orders should be made in the best interests of the children concerned. After all, the principles discussed in the above cases all stem from the notion that it is not in the best interests of children for their parents to be continually or regularly re-litigating parenting issues. It is only where the changed circumstances are such as to impact on the best interests of the children, that the court will even consider varying earlier orders made.
An application to vary or discharge existing parenting orders does not require the court to once again embark on a contested hearing, as if the matter were being determined for the first time. That would defeat the purpose of requiring an applicant to variation of orders to overcome a threshold. It is plain that the court retains a discretion as to how to deal with this threshold issue. It can either do so separately and in advance of a contested hearing on the merits, or it can do so as part of such a contested hearing.
In L & L (1992) FLC 92-274 the Full Court of the Family Court approved of the Judge at first instance dealing with the matter of whether to permit a reopening of parenting issues as a preliminary issue and to restrict cross-examination accordingly. In that case evidence was adduced from a court counsellor, who was cross-examined. The Full Court endorsed the approach taken in that case.
What the cases do not make clear is the process that the court should follow if it decides the threshold question in advance on a preliminary basis. That is, should the application be dealt with as on a demurrer or strike out application, and the court only look at the material of the applicant and decide, on that material alone, whether, assuming it is accepted, there is sufficient evidence to warrant the earlier orders being revisited. Or should the court treat the application similarly to a summary judgment application, and look at the material of both sides, and decide whether there is a serious issue raised which justifies the earlier orders being revisited. Or should the court effectively conduct a trial on the preliminary issue, with evidence and cross examination on the alleged change in circumstances.
There is some guidance as to the approach to be adopted. In R & B H, supra, the use of language that the court should be left in no doubt that it is necessary to revisit the parenting orders supports a critical analysis of the applicant’s material. Although the passage from King & Finneran seems to suggest that court looks at all material then available to the court, which encompasses the material from both sides, it seems to me that the court should logically follow a three step process, sequentially dealing with the three questions articulated in paragraph 18 above. Each case will vary of course as to the stage at which the decision can be made that there is/is not sufficient evidence to warrant a re-opening of the parenting issues. As the learned authors of Australian Family Law & Practice, Brown & Fowler, observe at [16-360], the Full Court of the Family Court has made it clear that the question of whether there were circumstances which required a reconsideration of a parenting issue might, but need not, be determined as a preliminary issue. However, the court may consider that in light of the alleged changed circumstances, it was more appropriate to consider all the facts of the case before deciding whether the changes circumstances existed. An applicant’s material might disclose no change in circumstance such that the application can be summarily dismissed without a respondent being required to put on evidence. An applicant’s material might raise the suggestion that there is a changed circumstance which requires investigation but after reading the respondent’s material the court might be satisfied that there is nothing in the point raised. The court may, as a matter of discretion determine the threshold issue without testing the evidence. Alternatively there maybe contested issues of fact as to whether there are changed circumstances in which case a court may need to hear from witnesses and allow cross-examination.
In Saad & Saad (1993) FLC 92-332 the Full Court of the Family Court said, at pp.79, 519-520;
“As to the proceedings before her Honour, it seems to us that the following were the relevant basic principles upon which the husband’s application fell to be determined: -
(1) Those proceedings were not an appeal from the orders of Burton J. of 6 June, 1989, which the husband was seeking to have varied or discharged. Accordingly, her Honour was precluded from considering whether those orders were validly made, either as a matter of law or as a matter of the exercise of discretion, by Burton, J. On the contrary, she was obliged to regard those orders as having been validly and correctly made in the proper exercise by Burton, J. of the discretion vested in him and upon the evidence which was before him at that time.
(2) Whilst s. 64(7) of the Family Law Act 1976 (“the Act”) gives this Court, in its original jurisdiction, the power to discharge or vary an order made under s. 64 (i.e. an order made in proceedings in relation to the custody, guardianship or welfare of, or access to, a child – see s. 64(1)), that power is not at large in the sense of empowering one Judge exercising the original jurisdiction of the Court to vary or discharge an order made by another Judge in the exercise of that jurisdiction merely because he or she disagrees with it or finds its effects unpalatable. On the contrary, a Judge asked to vary or discharge an earlier order of the Court under that sub-section may do so only if he or she is satisfied that it should now be varied or discharged having regard to any changed circumstances or new circumstances which have arisen since the making of the earlier order and to the welfare of the child which, by s. 64(1)(a) of the Act, the Court is required to regard as the paramount consideration in any such proceedings.
(3) Although it may be inappropriate, and is often unhelpful, in proceedings in relation to the guardianship and custody of or access to a child, to treat either party as bearing an onus of proof in relation to the welfare of the child, where a party applies for the variation or discharge of an existing order of that kind that party bears at least a forensic onus of placing before the Court sufficient evidence of changed circumstances since the making of the existing order upon which the Court could be satisfied that it is in the interests of the welfare of the child to vary or discharge that order. (Rice and Asplund (1979) FLC 90-725; Freeman and Freeman (1987) FLC 91-857.)
(4) It was therefore not for the wife to adduce evidence sufficient to satisfy her Honour that Burton, J’s orders should continue in force, but rather for the husband to at least place before her evidence sufficient to justify a reconsideration of those orders, and only if that were done was her Honour called upon to decide, in the exercise of her discretion, whether the welfare of the child required the discharge or variation of those orders, or their continuance.
(5) Even if it be assumed that the orders of Burton, J. which the husband was seeking to have varied or discharged, or some of them (specifically orders 6(c) and (d) thereof) were made, not pursuant to s. 64(1)(c) of the Act, but pursuant to s. 70C(2) or s. 114(3) (the ancillary injunctive powers of the Court), the husband as the applicant for variation or discharge of those orders would be in no better position as regards the basic principles applicable to the determination of his application outlined in (2), (3) and (4) above. The Act contains no specific grant of power to the Court, similar to that contained in s. 64(7), to vary or discharge an injunctive order made under either of those sub-sections. It may probably safely be assumed that the Court has an inherent power to dissolve an interim or interlocutory injunction granted under wither sub-section in the event that the circumstances which necessitated the granting of that injunction cease to exist, or that new circumstances arise or are disclosed to the Court which make it no longer appropriate for injunction to be continued: c.f. Philip Morris Incorporated v Adam P. Brown Male Fashions Pty. Ltd. (1980) 44 FLR 88 at pp. 99 & 111. In our view, however, paragraphs 6(c) and (d) of Burton, J’s orders were not interim or interlocutory in character, but “final”, notwithstanding their being expressed to continue “until further order”. There appears to be little authority, in England or Australia, upon the power of a court to dissolve a final injunction, and such authority as there is suggests that, at best, such an injunction may be dissolved only where the foundation for it has been removed by subsequent events: see, for example, Commonwealth Scientific and Industrial Research Organisation v. Perry (1988) 92 FLR 182, where the passage of statute authorising conduct that had previously been considered tortious was held, by the Full Court of the Supreme Court of South Australia, to require the Court to accede to an application for the dissolution of an injunction granted prior to the passage of that legislation restraining conduct of that kind.
(6) In determining the husband’s application, her Honour was entitled to have regard not only to the evidence placed before her by the parties and to the orders of Burton, J. which she was being asked to vary, but also, for the purpose of deciding whether there had been any relevant change of circumstances since the making of those orders, to Burton J’s published reasons for making them, and to any other relevant orders of the Court to which her attention was directed by the parties or by the material before her. Had there been in existence a transcript of the proceedings before Burton, J. leading to his orders of 6 June, 1989, she would have been entitled to have regard to that also, or at least to those parts of it which related to the orders which she was being asked to vary or discharge. If there was such a transcript, neither party sought to direct her Honour’s attention to any part of it.
(7) Subject to the application by her Honour of those basic principles, her determination of the husband’s application was an exercise of judicial discretion fettered only by her duty to proceed regularly according to law and to the practice and procedure of the Court, and by her obligation to regard the welfare of the child R as the paramount consideration.”
In the present case it seems to me appropriate to determine the threshold issue on a preliminary basis. In argument the applicant pointed to the following matters which are said to constitute a significant change in circumstances sufficient to warrant a reopening of the parenting issues :
a)The current ages of the children, and the time that has passed since the parenting orders were made;
b)The wishes expressed by the children;
c)The fact that the mother is now working full time and the father is working less onerous hours than at the time the consent orders were made;
d)The change in circumstances of the applicant father, namely that he has remarried and he and his wife have a young child born in 2005;
e)The need for the children to have more involvement with their father and extended family.
In my view the age of the children, simpliciter, would rarely, if ever, amount to a significant change in circumstance sufficient to satisfy the threshold test. The fact of children growing older occurs as the Full Court observed in King & Finneran occurs by the passage of time or in the usual course of human activity. The applicant’s counsel submitted that the children where now of an age that they can “vote with their feet” (T9.35). In fact that submission counters the court interfering to make new parenting orders. The children are now almost 16 and 14 years of age. That fact alone does not constitute a significant change in circumstances. Rather it militates against the relitigating of parenting issues. The children are at an age where they can effectively decide for themselves how much time they spend with each parent.
Although the father says the children have expressed views to him that they wish to enter into a shared care arrangement it is also plain from the father’s material that the children are reluctant to do so because of what they perceive the respondent mother’s reaction will be. The present arrangements have been in place for over ten years. The father spends regular time with his children, albeit not as much as he would like. There is nothing in the affidavit evidence to suggest that moving to a shared care arrangement for what will effectively be only a couple of years would be in the best interests of the children. There is nothing in the father’s affidavit material to contradict the proposition that if the children, or either of them, want to spend more time with the father that the mother will not permit them to do so.
Further, as Counsel for the respondent submitted, the expression of the views by the children cannot be determinative or the only factor to be taken into account. All personal relationships have a degree of fluidity about them (Archbold & Archbold (1984) FLC 91-532 at 79,309). If the wishes of children were to be given primacy and of themself sufficient to satisfy the threshold test, parenting orders would be regularly revisited.
In my view the wishes of a child, simpliciter, would rarely if ever constitute a change in circumstances sufficient to satisfy the threshold test. What is required is some evidence that those wishes are underpinned by some evidence that the current parenting arrangements are not in the best interests of the child. Parenting orders should not be varied or discharged according to the whim of a child. The reasoning for this is clear. As the trial judge said in F & C [2004] FamCA 568:
“I do not regard the wishes of [the child], as expressed as they have been in these proceedings, as being conclusive or would I place her in the position where she is to be responsible in the future for determining where she is to live simply because of what wish might be extracted from her by one parent at any time.
To provide for this to be a proper basis for reopening a matter for a child of this age would be to invite a reciprocal application shortly afterwards (if that application were successful) based on a new alleged change in wishes by the child. She should not be subjected to that form of pressure – direct or indirect by her parents in the future.
So to the extent that the question of her wishes bears upon her best wishes it seems to me that even if I were to be satisfied that she had expressed an unequivocal wish that she wanted to live at this point with her mother it would be inappropriate to permit further litigation to proceed at this point.”
The Full Court agreed with this approach. Their Honours said at paragraph [100]:
“Nothing about the evidence of the manner in which the child was being cared for by the father would bring the matter remotely close to the “exceptional cases – those concerned with allegations of physical or psychological abuse of a child” that the High Court spoke of in CDJ & VAJ (at para 150) as permitting some further examination of the parenting issue where the result, if the issue was further examined, might be different. Those exceptional cases need to be contrasted to the limited category of cases that would otherwise permit a reinvestigation being cases where it was fairly clear that the result would be different.”
In this regard, the applicant’s argument became somewhat circular. Although the applicant in his affidavit asserted that the children had expressed a desire to spend more time with him, and to enter into a shared care arrangement, the applicant sought the preparation of a family report so that the wishes of the children could be put before the court. This rather suggests a desire to obtain evidence from a family report to satisfy the threshold test. In my view that is inappropriate. Either the applicant satisfies the threshold test, and the court moves forward to reconsider the parenting issues, in which case a family report may be desirable, or the threshold test is not satisfied. As I have said, the assertions by the father that the children have expressed certain wishes to him, uncorroborated by any independent evidence, is not in my view sufficient to warrant the reopening of parenting issues.
Nor, in my view, are the current working arrangements of the applicant and the respondent. The fact that the father now has more time to spend with his children does not, of itself, mean that it is in the best interests of the children to embark on further litigation to determine whether he should be permitted to do so.
The remarriage of the father and the birth of the child who is the half brother of the children the subject of this application is also a matter which in my view falls within the sort of matters contemplated by the Full Court in King & Finneran referred to above. That is, in the natural course of events, parents will re-partner, and have more children.
The father in his affidavit material goes to some length to express a desire to be involved in the children’s schooling. However there is nothing to suggest that the children are not performing well at school whilst living primarily with the mother. Indeed the father accepts that they are. In those circumstances this cannot constitute a change in circumstances sufficient to warrant the reopening of parenting issues.
In my view, on the applicant’s own material he has not discharged the onus of demonstrating that there exists such a change in circumstances, other than the mere passage of time, and the children growing older, so as to warrant reopening the parenting issues. I am not left in no doubt that it is necessary to re-litigate the parenting issues. The present arrangements have been in place for more than ten years. The children are used to them. The children are 14 and almost 16 years of age and a court would be reluctant to impose parenting orders upon them in any event. In my view, there is no point in re-litigating the parenting issues. Accordingly in my view this is the type of case where the application to reopen the parenting issues can be decided on a preliminary basis and can be determined summarily.
I should add, in case a different view is taken elsewhere, that my conclusions are reinforced when regard is had to the respondent mother’s affidavit material. In my view it would not be in the best interests of the children to move from an arrangement that has worked reasonably well for a considerable period of time and make such a profound change as the father seeks.
When the mother’s material is taken into account as well as the father’s material, in my view the clear conclusion is reached that the applicant has not discharged the onus that he is required to, to overcome the threshold imposed by the authorities referred to above.
Accordingly, I dismiss the application. The applicant has been wholly unsuccessful. The applicant should pay the costs of the respondent’s of and incidental to the application to be taxed, if not agreed.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Wilson FM
Associate: Lynnette Chin
Date: 16 May 2007
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