Fenton and Fenton

[2016] FCCA 3024

FEDERAL CIRCUIT COURT OF AUSTRALIA

FENTON & FENTON [2016] FCCA 3024

Catchwords:
FAMILY LAW – Parenting – two previous defended hearings – change in circumstances – Rice v Asplund principles – application dismissed in that there is no significant or material change in circumstances.

Legislation:

Family Law Act 1975

Cases cited:

Rice v Asplund [1979] FLC 90-725

Cortez v Cabrera [2007] FMCAfam 293@[19]

Applicant: MS FENTON

Respondent: MR FENTON

File Number: HBC 249 of 2010

Judgment of: Judge McGuire

Hearing date: 16 November 2016

Date of Last Submission: 16 November 2016

Delivered at: Hobart

Delivered on: 1 December 2016

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondent: Mr Blissenden

Solicitors for the Respondent: Blissenden Lawyers

ORDERS

1. That the Initiating Application of Ms Fenton filed 7 June 2016 be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Fenton & Fenton is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT HOBART

HBC 249 of 2010

MS FENTON

Applicant

And

MR FENTON

Respondent

REASONS FOR JUDGMENT

1. On 7 June 2016 the mother, Ms Fenton, filed an Application seeking parenting orders in respect of the parties three children being X born (omitted) 2002 (aged 14 years), Y born (omitted) 2005 (aged 11 years) and Z born (omitted) 2007 (aged nine years).

2. The mother does not have the benefit of legal representation but has set out her arguments in her affidavit material in a clear and understandable fashion and was articulate in her submissions before me.  The mother has filed a comprehensive affidavit sworn on the 31 October 2016, together with an affidavit filed with her application on 7 June 2016.

3. The respondent is represented by solicitors.  In his response he seeks that the mother’s application be dismissed under the principles in Rice v Asplund[1].  It was agreed, in the circumstances of this matter, that this issue be resolved by way of a preliminary hearing rather than as part of a full trial of the issues. The matter therefore proceeded by way of submissions from the mother and counsel for the respondent father.

   [1] [1979] FLC 90 - 725

Background

1. The parties separated in September 2009 and first began proceedings in this Court in March 2010.

2. On 23rd August 2012 those proceedings were transferred to the Family Court of Australia at Hobart.

3. A two day hearing was conducted before Justice Benjamin in August 2012 and orders were made for the father to have sole parental responsibility for X and the mother to have sole parental responsibility for Y and Z and the children to live with their parents accordingly.

4. In October 2012 the mother surrendered care of Y and Z to the father and relocated herself to Queensland.

5. On 3 October 2012 consent parenting orders were made by Justice Benjamin with the father to have sole parental responsibility for all three children and that those children to live with him. A notation to those orders stated the mother's intention to pursue the children to live with her interstate at a later date.

6. A further defended hearing took place before Justice Cronin on 22 October 2013.  His Honour made final parenting orders on 1 November 2013 providing that the father have sole parental responsibility for all three children and for those children to live with him and spend school holiday contact with the mother in Queensland.  Notably, those orders were made contrary to evidence as to the preferences and views of Y and Z.

7. On 13 January 2014 the mother withheld the children from a Court ordered period of time with her in Queensland.

8. On 30 January 2014 Justice Benjamin issued a Recovery Order and the children were returned to the father on 4 February 2014.

9. On 5 February 2014 Justice Benjamin suspended the orders for the children's time with the mother but those orders were restored by further order of 3 April 2014 upon the sworn undertaking of the mother to comply with the Court orders for the return of the children.

10. The mother had only sporadic contact with the children between April 2014 and the filing of her Application on 7 June 2016.

11. On 26 April 2016 the child X ran away from the father's home to the home of the maternal aunt, Ms K.  Ms K obtained an ex-parte Restraint Order from the Hobart Magistrates Court against the father the following day. 

12. On 6 June 2016 an interim Care and Protection order was made in the State Magistrates Court in respect of X pursuant to the Children and Young Persons and Their Families Act 1997. X was placed in the care of the paternal grandparents who live opposite the father's home.

13. On 7 June 2016 the mother filed her Application in this Court seeking parenting orders in respect of all three children.

14. At the commencement of these proceedings, the mother accepted that this Court did not to have jurisdiction in respect of the child X. 

15. By order of the 5 October 2016 my colleague Judge Stewart had listed the matter for trial in Hobart in the week commencing 14 November 2016 but noting the preliminary issue under the principles in Rice & Asplund.

Relevant Law

1. No issue was taken with the Court proceeding to consider the threshold issue under Rice v Asplund preliminary to any substantive hearing.  In this sense I adopt the submission of counsel for the respondent citing Federal Magistrate Wilson in Cortez and Cabrera[2] as follows:

   However, the Court may consider that in the light of the alleged changed circumstances it was more appropriate to consider all the facts of the case before deciding whether the changes (sic) 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 be 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 is a matter of discretion determine the threshold issue without testing the evidence.  Alternatively, there may be 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.

   [2] [2007] FMCA 293@[19]

2. The Full Court in Moreton and Berry[3] noted in dealing with the principle in Rice and Asplund:

   The rule in Rice and Asplund refers to remarks made by Evatt CJ in that case at page 78,905 being “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… 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.

   [3] [2014)] FAMFC 208

3. Their Honours in Moreton and Berry (supra) continues as follows:

   The “rule” is a manifestation of the best interests principle and founded on the notion that continuous litigation over a child or children is generally not in their best interests… The application of the rule is connected to the nature and degree of change sought in the earlier order.

4. To my mind, an applicant must first show a prima face case of changed circumstances of either party or of the children to has been established but, in addition, that such change is of sufficient substance or materiality to justify a Court embarking on a substantive hearing.  To this end, it is proper for a Court to consider the past circumstances including the reasons for any extant orders and evidence upon which findings were made.  The Court should also consider any anticipated or likely variation of orders as a result of a further hearing and whether such variation would be significant.  Permeating these considerations is that of any potential detriment to the children from the litigation process itself.  

The mother’s case – changed circumstances

1. The mother articulated and asserted nine separate changes in circumstance with reference to the affidavit material.  They are:

   i)The children Y and Z suffer neglect in the father's home (noting that X is not the subject of further proceedings in this Court) evidenced by a 23.5 kg weight gain for X since he has left the father's home;

   ii)X's allegations that he was assaulted by the father;

   iii)The father's alleged failure to provide medical intervention for Y and Z in that he has not afforded them necessary dental treatment for broken teeth;

   iv)The father's alleged abusive language to staff at the (omitted) Centre where Z may receive assistance;

   v)The mother's assertions that her time with the children has been hindered or thwarted by the father as set out in her affidavit filed 7 June 2016 at [12] and [13] as follows:

   [12] since living in Queensland, due to Mr Fenton’s constant allegations of me telling the children to say things I have not been able to have the minimal time spent with my children, this is just another way for Mr Fenton to have an excuse to have some form of control over me, with the children being the ones punished when this didn't work.

   [13] I have also been abused after holiday plans had already been made with the children which didn't end up suiting Mr Fenton and Ms C as they wanted to go to Melbourne longer than I could be in Tasmania. I was coming for two weeks and they wanted three weeks, this was an ongoing thing when it suited all they wanted I was allowed, but any other time I’m not permitted or deemed suitable to have care.

   vi)General assertions as to lack of hygiene in the father's home.

   vii)That the father exposes the children to drug paraphernalia, keeps drugs in his refrigerator and traffics in drugs from his home.

   viii)That X (who suffers from a condition known by the acronym PSB (problem sexual behaviour) has exposed himself to younger children in the father's home but that the father did not immediately remove X from his home to protect those younger children.

   ix)A further general proposition that the father either does not accept diagnoses in respect of the children's medical matters or, alternatively, does not attend to those issues.

Consideration of the mother’s asserted change in circumstances

1. Annexed to the fathers affidavit sworn 21 September 2016 is an affidavit of Ms A, child protection worker, affirmed as recently as 19 May 2016.  That affidavit, although obviously untested, is lengthy, comprehensive, focused on the welfare of all three children, and of some real assistance in the matter now before me.

2. Ms A deposes that the affidavit is provided to the Court in relation to an application for a 12 month Care and Protection order in respect of the child X.  The affidavit comprehensively sets out the child protection history for all three children.  Notably, that history is lengthy and indicates regular and frequent involvement by the State Child Protection authorities.  Ms A's affidavit notes frequent notifications from each parent and are often unsubstantiated.  Within this context, Ms A's statement at [49] that “However, from our records, Mr Fenton (the father) has shown himself to be protective and caring towards X and very concerned about X's behaviours” is significant in respect of the mother's assertion that Mr Fenton is non-responsive to X and the children generally.

3. Similarly,  Ms A's affidavit itself has numerous annexures and significantly at annexure “I” appears the following from a report of Ms F, Team Leader, intake South – Child Protection Services dated 28 July 16:

   Child Protection Services does not have any concerns in regards to Y and Z in the care of their father.

4. The Court must, of course, consider the mother's current application and her assertions to changes in circumstances within the context of there being at least two full defended hearings in Family Courts before Benjamin and Cronin JJ both resulting eventually in orders whereby all three children live with the father.  I can infer that there was then a full testing of the mother’s general concerns and assertions as to the father’s parenting capacity.

5. It is significant in my view that the Child Protection authorities have been vigilant and frequent in their dealings with this family but assert unambiguously no concerns in respect to Y and Z in the care of the father as at 28 July 2016.  This evidence prima face addresses the issues raised by the mother in respect of the father’s parenting capacity.

6. It is now a fact that X has been removed from the father’s care and hence from living under the same roof as Y and Z.

7. These materials, in my view, effectively deal therefore, with all of the mother's concerns in respect of alleged neglect of the children, matters of medical neglect and hygiene issues.

8. A close reading of Ms A's affidavit also shows both Child Protection and Tasmania Police consideration of X's allegation that he had been assaulted by the father.  Specifically, at [25] is confirmation that Tasmania Police have no concerns in respect of the fathers propensity for physical violence in the statement: “ Constable C again reiterated that there was no evidence to back up suggestions of physical abuse and that X was excited to be going back to school… “

9. Generally, the evidence in respect of X's allegations of assault appear to be inconsistent in their particulars and when seen against the fact that Child Protection authorities have no concerns as to the safety of Y and Z in the father's home, would appear to have little probative value.

10. Generally, the mother’s claims must be seen against the background of two previous intrusive defended hearings which have resulted (eventually) in confirmation of all three children living with the father (noting that the mother relinquished care of the younger two children following the first order of Benjamin J).  The mother now seeks orders whereby the children would live with her in Queensland against a background of sporadic interaction between herself and the children.

11. Considering of, of course, that the mother’s assertions have not been fully tested by cross examination and taking them only at prima face value but within general context, I am not satisfied that the mother’s assertions, individually or cumulatively, cause her to cross the threshold imposed by the principal in Rice v Asplund.  Consequently, there will be an order dismissing the mother’s application.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Date:  1 December 2016