Fisher & Fisher (No 2)
[2023] FedCFamC1F 1046
•8 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Fisher & Fisher (No 2) [2023] FedCFamC1F 1046
File number(s): CSC 191 of 2019 Judgment of: JARRETT J Date of judgment: 8 December 2023 Catchwords: FAMILY LAW – PARENTING – Application to vary parenting orders – Final orders restrained the applicant from relocating out of the City B area – Applicant held no intention to relocate at time of trial – Applicant subsequently formed intention to relocate to City J – Change of circumstances established – Change of circumstances not material – Application dismissed Legislation: Family Law Act 1975 (Cth) s 62G(2)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 8.15(3)(e)
Cases cited: Defrey & Radnor [2021] FamCAFC 67
Fisher & Fisher [2022] FedCFamC1F 921
Marsden v Winch (2009) 42 Fam LR 1,[58]
Miller & Harrington (2008) FLC 93-383, [105]
Rader & Haines (No 2) [2023] FedCFamC1A 115, [62]
Rice & Asplund (1979) FLC 90-725
SPS and PLS (2008) FLC 93-363, [81]; [84]
The Marriage of D & Y (1995) FLC 92-581
U & U (2002) 29 Fam LR 74, [176]
Division: Division 1 First Instance Number of paragraphs: 31 Date of hearing: 17 November 2023 Place: Brisbane Counsel for the Applicant: Ms Musumeci Solicitors for the Applicant: Strategic Lawyers Solicitors for the Respondent: Litigant in person ORDERS
CSC 191 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS FISHER
Applicant
AND: MR FISHER
Respondent
ORDER MADE BY:
JARRETT J
DATE OF ORDER:
8 DECEMBER 2023
THE COURT ORDERS THAT:
1.The application filed on 21 April, 2023 is dismissed.
2.Counsel and solicitor for the applicant who appeared on 17 November, 2023 must appear before the court at 9.30am on 19 December, 2023 and may make submissions they see fit concerning the matter raised in paragraph [31] of the reasons for judgment delivered on 8 December, 2023.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JARRETT J:
On 2 December, 2022 Baumann J made final parenting and property adjustment orders between these parties following a five-day hearing: Fisher & Fisher [2022] FedCFamC1F 921. The parenting orders concerned their children, X (now 13 years of age) and Y (now 12 years of age). Those orders provided for the applicant to have sole parental responsibility for the children, for them to live with her and to spend time with and communicate with the respondent according to their wishes. Specifically, the orders provided that notwithstanding the order for sole parental responsibility, the children’s primary residence “shall not move from the [City B] area without the respondent’s prior written consent or order of court”.
The orders were unusual in that although the order for the time the children were to spend with the respondent was not prescriptive of time or place, but was to occur according to the children’s wishes, the applicant was enjoined from moving the residence of the children away from City B. Baumann J’s orders were informed by his Honour’s findings that:
(a)it was in the best interests of the children and they would benefit from a meaningful relationship with both parents;
(b)the applicant formed the view that the children would not benefit from a relationship with the respondent and her view is entrenched, rigid and unshakeable. His Honour found that although her view was unreasonable and inexplicable on the evidence, it was shaped by her desire to protect the children;
(c)the children had a very poor, or no relationship with the respondent. They had spent no time with him for a considerable period and they were entirely opposed to spending any time with him;
(d)the children’s views were shaped by what they believe the applicant wants for them and they know that acting contrary to the applicant’s beliefs (and in effect seeking out time with the respondent) would not be acceptable to the applicant. They had witnessed the applicant’s absolute rejection of their brother (who was not the subject of the proceedings) and where their exclusive attachment is to the applicant, based upon the expert evidence before him, his Honour thought that the children would not risk putting that primary relationship at risk. His Honour thought it was likely they might see a similar result for them as has befallen their brother. His Honour concluded, “It is a dilemma impossible for them to manage and has, on my assessment, contributed to them aligning entirely with the mother and also the maternal grandparents.”; and
(e)the parties live in the same region and the applicant no longer intended to relocate further south “as she had expressed previously”.
By her application filed on 21 April, 2023 the applicant now seeks an order to “relocate with the children from [City B] to [City J]”. She also seeks an order that the “father follows court orders and allows the girls to spend time and communicate in accordance with their wishes”. She seeks an order that the father stops messaging, calling and threatening to take her back to court “when the time is right”.
By his response filed on 12 May, 2023 the respondent seeks an order that the application be dismissed. He seeks an order for costs. However, by his case summary document filed on 10 November, 2023 the respondent seems to seek orders that the children live with him and spend no or limited time with the applicant.
The application came before me on 13 June, 2023. At that point I was persuaded to make an order for a report pursuant to s 62G(2) of the Family Law Act 1975 (Cth). On 18 September, 2023 I ordered that the question of whether the applicant demonstrated a significant or material change in circumstances sufficient to warrant the re-consideration of the parenting arrangements for X and Y be decided separately to all other issues in the proceedings. I made directions for the parties to file and serve any affidavit of evidence-in-chief by themselves or any other witnesses upon which they intended rely in relation to the preliminary issue and a direction for the delivery of a case outline. I adjourned the hearing of the preliminary issue to 17 November, 2023.
On 17 November, 2023 the applicant appeared by counsel and the respondent represented himself. Neither party requested to cross-examine the other or any witnesses relied upon by the respondent (the applicant was the only witness in her case). I told the parties that for the purposes of the application before me, I would approach the case on the basis that the factual assertions made by the applicant in her affidavit evidence were true.
In Defrey & Radnor [2021] FamCAFC 67 after considering what was said in SPS and PLS (2008) FLC 93-363 at [81] and [84], Miller & Harrington (2008) FLC 93-383 at [105] and Marsden v Winch (2009) 42 Fam LR 1 at [58] the Full Court summarised the law concerning Rice and Asplund (1979) FLC 90-725 as follows:
19.In our view, the Rice & Asplund test applies to all applications which seek to revisit parenting orders. Sometimes the test will be easily satisfied even though the issues to reconsider are major ones and sometimes the test will be easily satisfied even though the issues to be revisited are relatively minor in character. In both situations, the overarching test is to be applied, namely, (having regard to the best interests of the child) new events or changed circumstances have to be sufficient to provoke a new inquiry.
20.It is also useful when considering, as a preliminary matter, what issues a parent might be permitted to re-litigate, to remember that under s 69ZQ(1)(a) of the Family Law Act 1975 (Cth) (“the Act”), there is a mandatory requirement to decide which of these issues in the proceedings require full investigation and hearing.
21.The rule in Rice & Asplund involves the exercise of discretion and not merely a process of making factual findings. That is because the “rule” is a manifestation of the best interests principle. All s 60CC(2) and (3) matters, so far as they are relevant, must be considered, to the extent that they can be, based on the material before the court. The rule focuses particularly on s 60CC(3)(l) and the preference to make final orders in parenting matters that are least likely to lead to the institution of further proceedings in relation to the child. Axiomatically that is because unless other considerations are more weighty, it is not in the best interests of a child for that child to be the subject of repeated litigation between his/her parents. There is a focus in an application of this kind upon the change(s) in circumstances that outweigh the negative impact of reopening litigation. Although when considering the preliminary issue, if cross-examination is not permitted, then the evidence of the father is to be taken at its highest, and it is not only the father’s evidence that is considered.
22.Consequently, the challenge to the primary judge’s discretionary decision is one to which the normal principles in House v The King (1936) 55 CLR 499 and Gronow v Gronow (1979) 144 CLR 513 apply. The primary judge’s task was a two-staged process. First, to make findings of fact as to what changes there had been in circumstances since the making of the 2015 orders and secondly, to assess whether or not the father had established that these changes are sufficient to provoke a new inquiry, or put in another way, whether the father has established a prima facie case of changed circumstances that would justify embarking on a second contested parenting hearing as being in the child’s best interests.
(my emphasis)
THE APPLICANT’S CASE
Counsel for the applicant submitted that the case was a simple one. At the time the primary orders were made in December, 2022 the applicant did not intend to relocate from City B. She has since decided that she wishes to relocate to City J. Given the requirement of the current orders that the primary residence of the children remain in City B, it is necessary to have those orders discharged or alternatively an order of the court made permitting her to relocate the residence of the children to City J.
The applicant argues that her intention has changed and that she now wishes to move to City J with the children. Pursuant to the order that I made on 13 June, 2023 a report was prepared pursuant to s 62G(2) of the Act by court child expert Ms O. Her report is dated 18 September, 2023. Both parties relied upon that report although it was not tendered in evidence before me. To cure that irregularity, I have marked Ms O’s report as exhibit 1 these proceedings. In her report, Ms O recorded that the applicant told her the following things:
4.[Ms Fisher] has been in a relationship with her partner for the past 18 months, who lives in [Suburb PP], [City J], [several hours’] drive by car [from City B]. She did not want [Mr Fisher] to have her partner’s name as she feared he would harass them both. Her partner is reported to have adult children who live independently. [Ms Fisher] works [in education]. Her role covers [a range of areas in Queensland] and allows her the flexibility to work from home.
…
13.[Ms Fisher] bought a house in [Suburb PP], [City J] with her partner in [early] 2023. She indicated that the purchase of the house was the basis of her proposal for relocating to [City J] and because her partner lives there. On most weekends and school holidays, [Ms Fisher] and the children travel to and from [City J] as she and her partner are renovating the house.
…
43.[Ms Fisher] reported the children are excited about the prospect of moving and relocating. When asked for her views if orders are not made in her favour, [Ms Fisher] said she will have to finish renovating the house and sell it. She then said “I don’t know” and had not thought about it. She is resistant to the idea of living in [City B] and said the girls believe they are moving.
In support of her application, the applicant relied upon an affidavit sworn and filed by her on 16 October, 2023. The affidavit has six annexures but none were tendered in evidence and so are not technically before me (cf. r 8.15(3)(e) of Federal Circuit and Family Court of Australia (Family Law) Rules 2021 and referred to by the Full Court in Rader & Haines (No 2) [2023] FedCFamC1A 115 at [62]) . I have cured that irregularity by marking the annexures to the applicant’s affidavit filed on 16 October, 2023 collectively as exhibit 2 in these proceedings.
In her affidavit, the applicant swears that she is seeking to relocate from City B to City J to “provide a higher standard of living for the children, through enhanced family support. I have no family in [City B] and we have family support in [City J].” The reasons of the trial judge demonstrate that the applicant and the children had been living in City B from about late 2014, despite the respondent not living with them because of his postings in the Australian Defence Force. There was a brief move to Town K where the respondent was living in early 2019 but this was short lived and the applicant and the children returned to City B that same month.
The applicant does not nominate the family support she says that she now has in City J. None are apparent from the trial judge’s reasons for judgment.
The applicant swears that her employment “is based in [City J]” and that she “cover[s] the [City B], [City J] and [City RR] regions”. The family report writer recorded that the applicant’s role covers a range of areas in Queensland and allows her the flexibility to work from home. I note that at that time her home was, ostensibly, City B.
She swears that she has purchased a home in Suburb PP, north of City J, with “my partner who recently suffered [a medical episode] and requires support with his rehabilitation.” She does not disclose the name of her partner. As I have noted above, when interviewed by the family report writer, the applicant said that she did not want Mr Fisher to have her partner’s name as she feared he would harass them both. In their interviews with the report writer, both children referred to the applicant’s partner by the first name “[Mr TT]”.
The applicant swears that she sent the respondent an email on 14 April, 2023 “asking for permission to relocate to [City J]”. At the same time she notified the respondent of her address at Suburb SS, just to the north of City B as and from April, 2023. She advised the respondent that the parties’ children would be changing schools. When pressed in submissions to identify the point in time the applicant made a decision that she wished to move to City J, counsel for the applicant nominated this time and pointed to the email as evidence of the decision to want to move to City J as having been made then.
But that is curious. The applicant swears that “I have purchased a home in [Suburb PP] north of [City J], with my partner who recently suffered a [medical episode] and requires support with his rehabilitation’’. She annexes the cover page and signature page of an REIQ contract for the purchase of a property in City J to her affidavit. She swears that this relates to the property she has purchased in City J, although the copy of the contract is incomplete and the address of the purchased property is not disclosed. The date of the contract is 14 February, 2023. The signature page contains a provision for settlement of the contract to be early 2023. From that I infer that, despite counsel’s submission that the decision was made in April, 2023 (see transcript, 17.11.23 p.7 ) the applicant had decided to move to City J from at least the date of the contract, although it is likely the decision was made sooner than that. The contract date is only about six weeks after the delivery of Baumann J’s orders and reasons.
The respondent relied upon an affidavit sworn by Mr TT who claimed to be the former partner of the applicant. Submissions by counsel for the applicant were consistent with the proposition that Mr TT was in fact the applicant’s former partner. Mr TT’s evidence was that (errors in the original):
2.[Ms Fisher] officially moved into [UU Street], [Suburb PP], [City J], […] with me [in late] 2022 after temporarliy staying at the address due to not being able to relocate legally
…
6.[In late 2022], I suffered a [medical episode] and was hospitalised. Twenty four hours after my release from [VV Hospital], on [an] evening [in late 2022], [Ms Fisher] ended the relationship, and then due to her aggressive, eratic and emotional state and for the fact that the girls were present, I decided the next morning, to leave my home of 5 years, as I strongly believed that it would not be an ideal environment to rest and recover from my [illness]. I also believed that it would not be ideal for the girls, if i remained there with [Ms Fisher] in her mental state. During the past 6 weeks and during my […] recovery, [Ms Fisher] has been pressuring me to to the point of bullying, to quickly agree to property settlement terms set by her and by her time frame. I am not sure why, during my ongoing […] recovery, that she is in a rush to have me sign [UU Street] into her possesion, leaving me homeless and out of my home of 5 years and the location where I operate my business from.
7 .Even during a second hospital stay due to having another [medical] episode, one week after my initial hospital stay, I was receiving, email communication from [Ms Fisher] demanding a resopnse to her property propsal. After I had asked [Ms Fisher] to cease renovations and i mentioned that all renovations should now stop due to our need to settle our property in fair mannor at a later date, [Ms Fisher] has continued renovating [UU Street] without my approval and authority and has told myself and my Father that she would be living in the house within a 2 weeks.time line.
(errors in original)
Despite me telling the parties at a directions hearing on 18 September, 2023 that they might cross-examine each other and any witnesses they were going to rely on at the application, there was no application to cross-examine any witness. Mr TT’s evidence went unchallenged.
Concerningly, as counsel for the applicant developed her submissions about Mr TT’s evidence and particularly that in paragraph 2 set out above, it became apparent that the solicitors and counsel for the applicant knew that the relationship between the applicant and Mr TT had ended. Yet there was no mention of that fact when the applicant’s affidavit that asserted the contrary was read. There was no attempt to read any updating material, or even suggest from the Bar table the true position. The first mention of the failure of the relationship came from counsel for the applicant after I asked her about Mr TT’s evidence and his testimony that the applicant had been living in City J since December, 2022. Counsel’s response was (my emphasis):
Your Honour, that, firstly, is a matter of fact that needs to be addressed at a final hearing. But secondly, I would ask that you place little weight on [Mr TT’s] evidence, your Honour, in circumstances where it’s a recent breakdown of relationship between those two parties. And, quite frankly, his evidence is self-serving and not too – well, to put it quite frankly, as a certain circumstances where the relationship has broken down and in support now of the former partner of my client, that is, [Mr Fisher], the father. So the weight that could be…
More than that, Mr TT’s evidence was that the relationship broke down on 15 September, 2023 well before the applicant had sworn her affidavit. When asked about that, counsel simply asserted from the Bar without a shred of evidence that the relationship broke down after the applicant had sworn her affidavit, although she did not say when.
The applicant’s case is that she has not moved to City J but that she has simply formed the intention to do so for the purposes of family support. Her case that she has a partner in City J seems to have evaporated and the proposition that she must be in City J for her employment also seems illusory given that she told the Court Child Expert that it was a work from home position, she covered regions of Queensland out to City RR, and she was living in City B when she said these things.
I accept and I find that there has been a change in circumstances since the trial and subsequent orders made by Baumann J. I take at face value the applicant’s evidence that at the trial and perhaps the time of judgment she harboured no ambition to relocate her residence. I accept at face value that she has now changed her mind about that and wishes to move to City J. Counsel for the applicant did not suggest that there were any other changes that had occurred which the applicant relied upon to advance her case. In that respect the change of schooling for the children was not suggested to be significant.
It is necessary to assess whether or not the applicant establishes that these changes are sufficient to provoke a new inquiry, or put in another way, whether the applicant has established a prima facie case of changed circumstances that would justify embarking on a second contested parenting hearing as being in the children’s best interests.
Counsel for the applicant suggested that the identified change warrants the children’s welfare being reconsidered because:
(a)the applicant has sole parental responsibility for the children;
(b)the children are living with her;
(c)the family report prepared in September, 2023 records that the children’s views are clearly that they do not want to spend any time with the father; and
(d)an order which requires them to remain in the City B area is not in their best interests.
However, in my view, none of these matters demonstrate a need to reconsider the orders made by Baumann J in December, 2022. The evidence before his Honour was that the children did not want to spend any time with the respondent. Yet nonetheless, his Honour made the orders that he did on the basis that geographical proximity to the respondent might make it easier for the children to reach out and re-establish their relationship with him. These were unusual orders but plainly carefully informed by his Honour’s analysis of the evidence presented to him at the trial. His Honour plainly considered them to be in the children’s best interests. Significantly, neither party sought to appeal the orders and in particular, the order restraining the relocation of the children’s residence.
In the seminal decision of Rice & Asplund (1979) FLC 90-725 Evatt CJ expressed the view that the court should not “lightly entertain and application to reverse an earlier custody order”. Subsequently, the Full Court of the Family Court of Australia in The Marriage of D & Y (1995) FLC 92-581 indicated that in the circumstances that prevailed in that case, that is, a nine-day hearing a little more than two years previously, a judge would be “extremely loath to reopen the issue of custody, except on strong grounds”.
Although the present application is not one by the applicant to re-open the question of “custody”, the principles still apply. Having regard to the orders and reason of Baumann J, this is no mere tinkering with a minor aspect of his Honour’s order. Rather, the effect of the orders if made as sought by the applicant will place a geographical distance between the children and the respondent that Baumann J thought should not exist lest it impede the potential for the children to renew their relationship with the respondent.
Counsel for the applicant submitted that the applicant has a right to freedom of movement and given that she has sole parental responsibility for the children she should be entitled to exercise that right for both herself and the children. This submission highlights a conflict between the applicant’s interests and the children’s best interests as determined less than twelve months ago by the court. In a competition between the interests of parents and the interests of children, the interests of children will always come first: U & U (2002) 29 Fam LR 74 at [176].
Notwithstanding the opinion of the Court Child Expert to which I was taken by counsel for the applicant, I am not persuaded that the applicant’s change of intention and her desire now to live in City J is a change in circumstances that bears the necessary quality to justify revisiting the orders made by Baumann J on 2 December, 2022, the particular order restraining relocation of the children’s residence, or the making of further orders permitting the relocation of the children’s residence. The applicant’s change in intention does not, I find, warrant a revisiting of the welfare of these children in the circumstances of this case.
The application filed on 21 April, 2023 is dismissed.
OTHER MATTERS
Counsel and solicitors owe duties of frankness to the court. In this case I am concerned that the applicant’s evidence relied upon at the hearing of her application before me was inaccurate, both counsel and solicitor for the applicant knew it was inaccurate, and yet no steps were taken, formal or otherwise, to correct the inaccurate evidence of the applicant or bring to the court’s attention that the circumstances deposed to by the applicant had changed in a material way since the deposing of that affidavit. For that reason, I will assign a date for the applicant’s solicitor and counsel who appeared on 17 November, 2023 to appear before me and make submissions as to why I should not refer their conduct to the Legal Services Commission (Queensland).
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jarrett. Associate:
Dated: 8 December 2023
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