FULLMER & OMEROS (No.2)

[2020] FCCA 466

FEDERAL CIRCUIT COURT OF AUSTRALIA

FULLMER & OMEROS (No.2) [2020] FCCA 466

Catchwords:
FAMILY LAW – Parenting – where final parenting orders were made in March 2019 – consideration of the rule in Rice & Asplund – application dismissed.

Legislation:

Family Law Act 1975 (Cth)

Cases cited:

Fullmer & Omeros [2019] FCCA 191

In the marriage of Rice & Asplund (1979) FLC 90-725

Applicant: MS OMEROS

Respondent: MR FULLMER

File Number: MLC 7203 of 2016

Judgment of: Judge Mercuri

Hearing date: 17 February 2020

Date of Last Submission: 17 February 2020

Delivered at: Melbourne

Delivered on: 20 February 2020

REPRESENTATION

Advocate for the applicant: In person

Solicitors for the applicant: None

Advocate for the respondent: In person

Solicitors for the respondent: None

ORDERS

1. The mother’s application filed on 22 November 2019 be dismissed.

2. Pursuant to section 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

AND THE COURT NOTES THAT:

(A)Pursuant to section 62B of the Family Law Act 1975 (Cth), information about courses, programs and services to help with adjusting to the consequences of those orders are set out in Attachment A.

(B)Section 121 of the Family Law Act 1975 (Cth) provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the court.

IT IS NOTED that publication of this judgment under the pseudonym Fullmer & Omeros (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 7203 of 2016

MS OMEROS

Applicant

And

MR FULLMER

Respondent

REASONS FOR JUDGMENT

(Revised from the Transcript)

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

Background

1. This is an application for parenting orders in respect of X  born in 2014 (“X”), filed by the mother on 22 November 2019.  In that application, the mother seeks orders:

   a)discharging order 12(b) of the final parenting orders made on 6 March 2019 (“the final orders”); and

   b)enabling the mother to travel with the child to the United Kingdom, Country P and Country AA in 2020. 

2. It is not entirely clear from the father’s response what his position is, although in the hearing before me on 17 February 2020, he confirmed that he opposed the mother’s application essentially on the basis that the question of travel had been the subject of proceedings before her Honour Judge Stewart, which resulted in the making of the final orders. 

3. The matter came before me in my duty list on 17 February 2020.  Both parties represented themselves at that hearing.  There is a lengthy procedural history to these proceedings.  That history is set out in the reasons for judgment of her Honour Judge Stewart delivered on 1 February 2019.  I do not propose to repeat that history here.  It is also apparent from her Honour’s reasons for judgment that:

   a)the hearing was conducted over the course of five days;

   b)the parties represented themselves in those proceedings; and

   c)the court had the benefit of an Independent Children’s Lawyer.

Initial proceedings

1. At the conclusion of the initial proceedings, her Honour Judge Stewart made the following orders:

   2. The mother have sole parental responsibility for X, save that:

   …

   (b)the mother is not entitled to travel outside of the Commonwealth of Australia with X, save as is provided for by these orders or by further order of this Court. 

   …

   9. The father be and is hereby restrained from removing X from the Commonwealth of Australia. 

   10. Until January 2022, the mother be and is hereby restrained from removing X from the Commonwealth of Australia. 

   …

   12. As and from January 2022, the mother be at liberty to travel overseas with X on the following terms and conditions: 

   (a) The mother be permitted to travel for a period of up to four weeks in each alternate year as and from 2022;

   (b) The mother be permitted to travel to the United Kingdom only (save for any transfer flights, wherein any stopover shall not be longer than a period of 24 hours);

   …

   13. The father be restrained from bringing any application to travel overseas with X for a period of three years as and from the date of these orders.[1]

   [1] Final orders made by her Honour Judge Stewart on 6 March 2019.

2. It is evident from the terms of these final orders that the issue of the circumstances in which and, importantly, when either party could undertake any travel with X and where such travel could occur were the subject of consideration in the initial proceedings.  Moreover, such is evident from a cursory examination of the reasons for judgment.

3. For example, at paragraph 36, her Honour said:

   …each of the parties had respective applications to travel with X.  The father agrees that X should be able to travel with the mother but only on the proviso that he too was permitted to travel with X to see his family in Country O.  The mother seeks to be able to travel to see her family in the United Kingdom, however resists the father’s application to travel, as she regards him as a flight risk.[2]

   [2] Fullmer & Omeros [2019] FCCA 191 at [36].

4. Then at paragraph 220 and following, Judge Stewart dealt with the very question of international travel with X and relevantly said:

   The father holds an ardent desire to take X to Country O every year.  This creates issues, as the mother considers the father a flight risk in looking after X.  It is also significant in that much of the high conflict appears to arise from the father’s feeling of entrapment in Australia and an inability to live a life of his choosing, or travel to his destination of choice with X.[3]

   [3] Fullmer & Omeros [2019] FCCA 191 at [220].

5. Her Honour then went on to say at paragraph 228:

   In my view, overseas travel with the father presents a significant risk to X.  The father’s presentation in this case is such that he is impulsive and emotional, and the mother’s fear that those strong emotions coupled with his feelings of entrapment in Australia, and his feelings towards the mother particularly, carry with it a real risk that he may take the law into his own hands.[4]

   [4] Fullmer & Omeros [2019] FCCA 191 at [228].

6. Judge Stewart then dealt with the mother’s application in relation to travel. Relevantly, her Honour noted at paragraph 236:

   The mother also wants to travel overseas with X to the United Kingdom.

   …

   The mother has a more balanced and less emotional personality.  Ultimately, I have formed the view that upon the alleviation of the burden of dealing with the father extensively, that her approach will moderate.[5]

   [5] Fullmer & Omeros [2019] FCCA 191 at [236]-[237].

7. Her Honour added at paragraph 239:

   I do however think that there is some force in Dr B’s suggestion that X’s living arrangements should be given a reasonable period to stabilise prior to any overseas travel being undertaken.

   On balance, I think it is appropriate to allow the mother to travel to the United Kingdom with X as and from January 2022, on the conditions as set out in my orders.  For any travel outside of the United Kingdom, the mother’s proposal should be assessed on a case-by-case basis.[6]

   [6] Fullmer & Omeros [2019] FCCA 191 at [239]-[240].

8. Judge Stewart then went on to make the following further comments in relation to the issue of making an order that would be least likely to lead to the institution of further proceedings in relation to X.  At paragraph 291, her Honour said:

   It is preferable to make final orders in these proceedings, however it is not possible for me to make a final order with respect to international travel with X on each and every occasion that the parents may seek to travel.[7]

   …each case would need to be assessed on its merits.  In the same way that I propose to allow the mother to travel with X to the United Kingdom (but not to other countries) at a future date, I also propose to restrain the father from bringing any application to travel overseas with X for a period of three years.  Neither of the parties should regard this statement as an invitation that these sorts of matters for X are still in a state of flux and may not be able to be determined at this time.[8]

   [7] Fullmer & Omeros [2019] FCCA 191 at [291].

   [8] Fullmer & Omeros [2019] FCCA 191 at [293].

9. As stated, the final orders referred to above, which the mother now seeks to vary, were made on 6 March 2019.  The mother’s application was filed some eight months after those final orders were made. 

10. In her affidavit filed 22 November 2019, the mother attested to the following:

    a)her father lives in both the United Kingdom and Country P and that she also has other family in the United Kingdom, Country P, and Country BB;

    b)her father is celebrating his 70^th birthday and she wished to attend with X during 2020;

    c)the maternal grandfather is also proposing to pay for X to visit Country AA for three days in 2020 as part of his birthday celebrations;

    d)her father’s birthday celebrations were organised after the final orders were made, and it is for this reason that she “did not seek orders for travel during the court proceedings”; and

    e)the mother owns a property in the United Kingdom which requires urgent repairs, including to address mould in the ceiling.  She wishes to attend to this whilst she is in the United Kingdom. 

11. Moreover, the mother gave evidence of the benefit to X of the proposed travel.

Consideration of Rice & Asplund

1. Turning then to the law, it is well settled that a court ought to be cautious in hearing an application to amend final orders and only do so in circumstances which justify such action.  In In the marriage ofRice & Asplund (1979) FLC 90-725 (“Rice & Asplund”), the court said:

   Where an order has been made in relation to the issue of where a child should live, the Court should not lightly entertain an application to reverse that earlier order unless it is satisfied that there are changed circumstances, in the sense that a new factor has arisen or some material factor was not disclosed at the previous hearing, which would justify the reversal.[9]

   [9]In the marriage of Rice & Asplund (1979) FLC 90-725 at [41].

2. It is settled law that before a court considers reconsidering parenting issues which were the subject of final orders, the applicant must show that there has been a significant change in circumstances, and that it is ultimately in the child’s best interests to permit further litigation in relation to parenting matters.  Not only does this approach avoid endless litigation with respect to the same issues, but it avoids the risk that one judge will simply substitute orders which they believe are in the best interests of the child or children for those made by another judge.  It is also settled that in applying the rule in Rice & Asplund, the court must always be guided by what is in the child’s best interests. 

3. In this case therefore, it is relevant to consider whether there has been a significant change in circumstance which might warrant the making of different parenting orders and, if so, the likely changes in orders must be weighed against the potential detriment to the child caused by further litigation. 

4. As previously noted, when asked what the changed circumstances were that the mother relied upon, she pointed to her father’s 70^th birthday celebrations and her need to attend to her property in the United Kingdom.

5. During the course of her oral submissions, the mother added that the family report suggested that there be a period of time when neither party be permitted to travel to allow tensions to settle between the parents.  She said that, notwithstanding the final orders, there has been a continuation of what she considers to be family violence perpetrated towards her by the father and therefore, this aim has not been achieved in any event.  She pointed to the fact that she has obtained a 10-year intervention order against the father as evidence of that ongoing situation. 

6. For his part, the father asserted that the intervention order was obtained without him being present at court as a result of a “misunderstanding”.  He also submitted that he had appealed that decision and the outcome of that process, including a further appeal to the Supreme Court of Victoria, has not yet been concluded. 

7. For the reasons which follow, I do not need to determine the issue of ongoing family violence in dealing with the matter at this preliminary stage.  As is evident from the extracts of her Honour’s judgment which I have referred to earlier, the issue of overseas travel was very much a live issue and the subject of evidence and submissions before her Honour, and was expressly dealt with in the final orders.

8. The question of the mother’s ability to travel with X, including time and location was also the subject of evidence and findings in those earlier proceedings. Not only was this referred to in her Honour’s reasons for judgment, but specific orders were also made limiting the parties’ ability to travel.  Importantly, Judge Stewart considered the need for a period of time when no international travel occur; that is, until 2022.  No appeal was filed against the final orders. 

9. The mother has not, in my view, established a sufficient change in circumstances which would warrant further consideration of parenting orders relating to travel.  The paternal grandfather’s arrangements to celebrate his 70^th birthday do not, in my view, constitute a significant change; nor does the mother’s need to travel to the United Kingdom to attend to her house in that country. 

10. Moreover, even if I was satisfied that the mother had established that these were significant changes, I am not satisfied that they would justify reopening litigation in this case. 

11. The mother’s application would involve the parties in further proceedings before this court.  That would, in all likelihood, require X to participate in another family report and become exposed again to the ongoing stress and tension from the litigation process itself.  The final orders were made following three years of litigation in this court, including numerous applications in a case, interim hearings and contravention applications. 

12. These factors, in my view, outweigh any additional benefit which might come to X from being permitted to travel overseas as per the mother’s application.

13. For each of these reasons, I am not satisfied that the requirements in Rice & Asplund have been met, and the mother’s application ought to be dismissed.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Mercuri

Date:   20 February 2020