Finch and Shibo (No. 3)

[2014] FamCA 1136

FAMILY COURT OF AUSTRALIA

FINCH & SHIBO (NO. 3) [2014] FamCA 1136

FAMILY LAW – CHILDREN – Interim – Where interim determination and orders made very recently by Forrest J on 28 October 2014 – Where the father did not appeal against those orders but filed two applications in a case on 17 November and 27 November 2014 respectively – Where it was acknowledged at the hearing by counsel for the father that his application in a case filed on 27 November 2014 ought be dismissed – Where the Court does not have jurisdiction to make the orders sought in that application – Where the sole issue advanced out of the application filed on 17 November 2014 was that the changeover location for all changeovers should be at a nominated Contact Centre and, pending the availability of that Centre to the parties for that purpose, changeovers should take place in the car park of a Police Station – Where Forrest J had made specific findings that it would be contrary to the child’s best interests; and it would present a risk to her; if the parents came into direct contact with each other at changeovers – Where the father does not demonstrate any change in circumstances sufficient to have the Court reconsider the matters determined by Forrest J – Where it is clear on the evidence as a whole that the father’s proposed orders have the significant risk of compromising the mother’s parenting capacity and significant risk of compromising the child’s best interests

Family Law Act 1975 (Cth)

Langham & Langham (1981) FLC 91-014
Rice & Asplund (1979) FLC 90-725
SPS & PLS (2008) FLC 93-363

APPLICANT: Mr Finch

RESPONDENT: Ms Shibo

INDEPENDENT CHILDREN’S LAWYER: Mr Scott

FILE NUMBER: BRC 2788 of 2009

DATE DELIVERED: 17 December 2014

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 12 December 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Page QC

FOR THE RESPONDENT: Self-Represented

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Parker Family Law

Orders

It is ordered that:

1. The Father’s Application in a Case filed on 12 November 2014 is dismissed.

2. The Father’s Application in a Case filed on 27 November 2014 is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Finch & Shibo (No. 3) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 2788 of 2009

Mr Finch

Applicant

And

Ms Shibo

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Final parenting orders made on 22 November 2011

1. On 22 November 2011 final parenting orders were made with the consent of both parents with respect to the parenting arrangements for their daughter K (“the child”) born in 2007.

2. Then (as now) the mother’s residence was (and is) on the Sunshine Coast and the father’s residence was (and is) at Suburb G in the Moreton Bay region.

3. Relevantly for present purposes, pre-dating those final parenting orders there existed medical evidence in which is recorded complaints or assertions by the father to the effect that anxiety, when driving alone, rendered it difficult, or impossible, for him to drive more than 20 kilometres (on one version) or more than 30 kilometres (on another).  Examples are the letters written by Dr J of 17 August 2009 and 31 October 2011.

4. However, none of this historical medical evidence to which the Court’s attention was directed at this hearing, included any expert medical opinion to the effect that by reason of a diagnosed mental health condition the father was precluded or limited from driving a vehicle.

5. Notwithstanding that this complaint or assertion of the father existed prior to their making, the final orders of 22 November 2011 consented to by the father (at a time when he was represented by Counsel) contained, inter alia:

   a)A record of the parents’ agreement that the child would attend Suburb M State School in 2013 (unless otherwise agreed);

   b)Provision for the father to collect the child from Suburb M State School at the commencement of each alternate weekend period for the purpose of the child spending time with the father as ordered.

6. It may be observed in passing that the almost three (3) years that elapsed between 22 November 2011 and the interim hearing before his Honour Forrest J on 28 October 2014 provided ample opportunity for the father to demonstrate by expert medical evidence, if it were a medical fact, that his issues of mental health, despite his adherence to treatment, preclude or limit him from driving to and from his home to Suburb M for the purpose of changeovers.

Issues and orders of 28 October 2014

1. It was as recently as 28 October 2014 that his Honour Forrest J heard and determined applications for variation of the 22 November 2011 parenting orders. 

2. Relevantly for present purposes, it is clear from his Honour’s reasons for judgment that:

   a)The father argued for a variation of the orders to provide for the place of changeover to be at a public car park located on the Bruce Highway (reasons at [20]); and

   b)The reason any variation was necessary at all was because the management of C Contact Centre had notified the parents that its erstwhile facilitation of changeovers was withdrawn (reasons at [22] and [23]); and

   c)That Centre’s withdrawal of its facilities was occasioned by the father’s abusive communication and behaviour with the management and staff of the Centre (reasons at [22] to [25]).

3. His Honour made specific orders determining the issue joined between the parties as to the places and methods of changeover (orders (2) to (7)).

4. Forrest J’s reasons for judgment illuminate clearly the issues that were raised and his Honour’s reasons for making the orders that were made on 28 October 2014.

5. In summary, Forrest J ordered that the father collect the child from her school (Suburb M State School) at its conclusion on the Friday of each alternate weekend she was to spend with the father, and for the father to return her to her school for its commencement on the Monday (order (2)).

6. The orders provided for changeovers to occur at D Contact Centre in lieu of the school in the event that a scheduled Friday, or a scheduled Monday, was not a school day (and in the latter instance the return of the child was to the contact centre at 5.00 pm on the Sunday) (orders (3) and (4)).

7. At [15] of the reasons Forrest J recorded that previous orders had provided for the father to collect the child from Suburb M State School at the commencement of alternate weekend time with the return to C Contact Centre, in the Moreton Bay Suburb G area, on the Sunday.

8. As already noted, at [22] to [25] of his reasons Forrest J referred to the evidence as to why C Contact Centre is no longer available to the parties; and recorded findings to the effect that this is because of the father’s abusive communication and behaviour with the management and staff of the Centre.

9. Forrest J specifically discussed, and detailed reasons for rejecting, the father’s proposed form of variation that would have the parents coming into direct contact with each other at changeovers (reasons at [17] to [21]).

10. The father did not file any appeal or application for leave to appeal against the orders made on 28 October 2014 by Forrest J.

11. The father did file two (2) applications in a case on 12 November 2014 and 27 November 2014 respectively which were the subject of the hearing on 12 December 2014.

Hearing on 12 December 2014

1. The father had the significant benefit of Mr Page of Queen’s Counsel appearing for him at the hearing of his applications on 12 December 2014.  Mr Page appeared on a pro bono basis apparently in answer to a call from the Bar Association of Queensland for the father to be provided with such assistance.  The Court was assisted by Mr Page’s involvement and the Court acknowledges the benefit to it of such assistance.

2. The mother was self-represented and relied upon the material she had filed for the purpose of the hearing before Forrest J.

3. Mr Scott, as the recently appointed Independent Children’s Lawyer, also appeared at the hearing.

4. Mr Page acknowledged on behalf of the father that the father’s application in a case filed on 27 November 2014 ought be dismissed.  As Mr Page observed, the Court’s time ought not be taken up with applications of this kind.  It ought be recorded that this Court does not have jurisdiction to make the orders sought in that application and on this basis, and as Mr Page contended, that application is dismissed.

5. As to the father’s application filed on 12 November 2014 Mr Page submitted that the sole issue sought to be advanced out of that application, and thus the only issue for determination was this: that the changeover location for all changeovers should be at D Contact Centre in Town E and, pending the availability of that Centre to the parties for that purpose, changeovers should take place in the car park of the Town E Police Station.

6. Mr Page submitted that the Court ought consider this issue, notwithstanding Forrest J’s very recent determination of it, essentially on a proposition to the effect that Forrest J had not examined relevant medical evidence.

7. As to the proposition that any changeovers should occur with the parents coming into personal contact with each other, Mr Page submitted that in circumstances where the father had not availed himself of any time with the child since September 2014, any risk for the child inherent in the parents coming into personal contact at changeovers was outweighed by the benefit to the child of spending time with the father.

Varying parenting orders: The “Rule” in Rice & Asplund

1. Whilst the Court always retains jurisdiction to make parenting orders which are never final, the Court will not readily re-open parenting orders recently made.  In Rice & Asplund (1979) FLC 90-725 Evatt CJ, with whom Pawley SJ and Fogarty J expressed their agreement, having discussed other authorities said at 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 circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material … These are not necessarily matters for a preliminary submission, but they are matters that the judge should consider in his reasons for decision. It is a question of finding that there are circumstances which require the court to consider afresh how the welfare of the child should best be served.

2. In Langham & Langham (1981) FLC 91-014 another Full Court having cited the above passage said (at 76,179):

   True it may well be that should there be a judgment and order in a contested hearing or even an order made by consent, and, upon a further application seeking to reverse, vary or modify such order, it may be conceded at the outset by or on behalf of the applicant that no relevant circumstance has changed since the last order nor is it alleged that some factor was not disclosed at the previous hearing. In such a case, which would indeed be unusual, clearly the application would not be entertained. Such a testing of the previous order upon the unchanged evidence would be in the nature of an appeal and could only be instituted as such.

   (Emphasis added)

1. Numerous authorities give effect to this guideline.  In SPS & PLS (2008) FLC 93-363 Warnick J observed (at 82,455):

   Though sometimes unstated, the underlying conclusion will or ought be that the interests of the child in not being the subject of further litigation is more powerfully in the child’s welfare than to allow the application to continue.

   (See also Marsden v Winch (2009) 42 Fam LR 1).

Has there been a change in circumstances?

1. In relation to medical evidence the Independent Children’s Lawyer, Mr Scott, directed the Court’s attention to the following medical evidence concerning each parent:

Father

1.        Father’s Affidavit filed 7 September 2012

·    Annexure “KWF 001” – Letter of Dr J dated 17 August 2009

·    Annexure “KWF001” – Letter of Dr J dated 5 September 2012

2.        Father’s Affidavit filed 7 November 2011

·    Annexure “KWF 01” – Letter of Dr J dated 31 October 2011

3.        Father’s Affidavit filed 30 August 2012

·    Annexure “KWF 001” – Letter of Dr L dated 3 April 2009

4.        Father’s Affidavit filed 12 November 2014

·    Annexure “Specialist” – Letter of Dr L dated 27 October 2014

5.        Affidavit of the single expert Dr M filed 13 July 2011

Mother

1.        Affidavit of Mr N filed 14 November 2011

2.        Mother’s Affidavit filed 24 October 2014

·    Annexure “SS7” – Letter from Dr O dated 17 October 2014

3.        Affidavit of Dr M filed 13 July 2011

1. It would seem that the only piece of medical evidence that is “new” in the sense of it becoming available after the orders of Forrest J of 28 October 2014 were made is a letter of Dr L, consultant psychiatrist, dated 27 October 2014 which was annexed to the father’s affidavit filed 12 November 2014.

2. However, on the central issue of the father’s ability to drive, or lack thereof, that letter of Dr L makes no reference at all to that issue.  Aside from confirming that the father has been attending upon Dr L for the purpose of treatment of his post-traumatic stress disorder and bipolar disorder; and stating the opinion that the father would benefit from seeing and communicating with his daughter on a regular basis; the issue of driving is not addressed at all in Dr L’s letter of 27 October 2014.

3. Mr Page conceded, quite properly given the available medical evidence, that nowhere in any of the medical evidence is there any expert medical opinion that the father is precluded or limited in driving by reason of any mental health condition, notwithstanding the father’s compliance with prescribed treatment for such a condition.

4. Mr Scott likewise confirmed from his review of the medical evidence that no such opinion existed.

5. Notably, there is amongst the medical evidence to which reference was made some expressions of doubt about whether or not the father suffers anxiety; observations as to the apparent dissonance between his claims of anxiety and the father’s capacity to manage long flights overseas to work in isolated and possibly dangerous locations; and questions as to the father’s compliance with prescribed treatment. (See, for example, Dr J letter of 5 September 2012 annexed to the father’s affidavit filed 7 September 2012).

6. Put simply, there is no medical evidence to which the Court’s attention has been directed to support the proposition of some material change in circumstances since the hearing and determination by Forrest J on 28 October 2014.

7. Forrest J made specific findings that it would be contrary to the child’s best interests; and it would present a risk to her; if the parents came into direct contact with each other at changeovers (see reasons at [17], [18], [19], [20] and [21]).

8. There is ample medical evidence in the historical medical evidence to which the Court’s attention was directed on this hearing that the mother’s parenting capacity as primary carer for the child would potentially be significantly compromised by her having to have any direct contact with the father; and also as to the risk for the child of this.  (See, for example, the affidavit of Mr N, psychologist and the affidavit of the single expert psychiatrist Dr M).

9. Contrary to Mr Page’s submission on behalf of the father to the effect that Forrest J reached his determination without proper examination or consideration of the medical evidence; it would seem that on the available medical evidence no conclusions other than those made by Forrest J were open.

10. There is thus no evidence, medical or otherwise, to support any proposition to the effect that there has been any change, let alone one that is material, in the circumstances considered by Forrest J and the determinations his Honour made on the issue of the parents coming into direct contact with each other at changeovers.

11. Moreover, there is no evidence advanced in the father’s case as to the availability of the nominated contact centre at Town E.  That is, on the scenario proposed by the father that the parents have direct contact at changeovers until that Centre becomes available there is no evidence upon which reliance can be placed for the proposition that the Contact Centre will ever become available.  Indeed it can be seen from the reasons of Forrest J at [27] that his Honour specifically considered, but rejected, that possibility. 

12. Given that the father does not demonstrate any change in circumstances sufficient to have the Court reconsider the matters determined by Forrest J, this application devolves into one of seeking to have this Court “review” the determination of Forrest J in an impermissible way.  Only by an appeal can such a review legitimately be sought.

13. Even if this Court were considering the father’s interim application afresh, ignoring the determination already made by Forrest J, it is abundantly clear on the evidence as a whole, particularly the medical evidence referred to, that the father’s proposed orders have the significant risk of compromising the mother’s parenting capacity in circumstances where she provided primary care; and significant risk of compromising the child’s best interests.

14. For these reasons the father’s interim applications are dismissed.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 17 December 2014.

Associate:

Date:  17 December 2014