Gavin and Garden

FAMILY COURT OF AUSTRALIA

GAVIN & GARDEN

[2007] FamCA 1000

FAMILY LAW – CHILDREN– care and living arrangements – preliminary argument – Rice & Asplund – no significant change in circumstances demonstrated
FAMILY LAW - PROPERTY – s 79A – preliminary argument on no case – determined may be arguable case

APPLICANT:

MR GAVIN

RESPONDENT:

MS GARDEN

FILE NUMBER:

BRF

3025

2003

DATE DELIVERED:

28 June 2007

PLACE DELIVERED:

Brisbane

JUDGMENT OF:

The Honourable Justice Jordan

HEARING DATE:

28 June 2007

REPRESENTATION

THE APPLICANT:

Appeared on his own behalf

COUNSEL FOR THE RESPONDENT:

Ms T McMillan

COUNSEL FOR INDEPENDENT

CHILDREN’S LAWYER:

Mr George

SOLICITOR FOR INDEPENDENT
CHILDREN’S LAWYER

Grant & Associates, Brisbane

Orders

IT IS ORDERED

That the children, V, born on … November 1993, and J, born on … June 1996, live with the FATHER, save and except as is referred to in paragraph 5 hereof.

That the FATHER have responsibility for the long-term care, welfare and development of the said CHILDREN.

That during periods of the children living with the FATHER, the FATHER have responsibility for the day-to-day care, welfare and development of the said CHILDREN.

That during periods of the children living with the MOTHER, the MOTHER have responsibility for the day-to-day care, welfare and development of the said CHILDREN.

That the said CHILDREN live with the MOTHER at all such times as may be agreed, or failing agreement as follows:-

i.      from after school Friday to the commencement of school Monday of each alternate weekend and, if the Monday of such weekend is a Public Holiday, then until Tuesday morning of that weekend;
ii.     for the second-half of the school holiday periods in the year 2007 and the first-half of the school holiday periods in the year 2008 and alternating thereafter;
iii.    if Mother’s Day falls on a day when the said CHILDREN are not living with the Mother, then on such day from 9.00 am until 5.00 pm (and if Father’s Day falls on a day when the said CHILDREN are living with the Mother, the FATHER to have the said CHILDREN from 9.00 am until 5.00 pm on such day).

That in respect of time spent with each parent for school holidays and other special days, the parent with whom the said CHILDREN are living shall, at the relevant time, deliver the said CHILDREN to the other parent’s residence at the commencement of time spent and the other parent shall re-deliver the said CHILDREN at the conclusion of such time spent to the other parent, provided that each parent is not to enter the property or the driveway of the property of the other parent and the delivering parent is not to get out of his or her motor vehicle, save and except to remove the said CHILDREN’S items from the car for the said CHILDREN.

That during school terms, the said CHILDREN communicate with the MOTHER by telephone each Tuesday evening at 6.00 pm for a reasonable period of time.

That during periods when the said CHILDREN are living with the MOTHER, the said CHILDREN telephone the FATHER at 6.00 pm on Sunday evenings.

That during school holidays, the said CHILDREN communicate by telephone with the absent parent each Tuesday evening at 6.00 pm.

That each parent notify the other of any change of residential address and telephone number within 24 hours of such change.

That this order be sufficient authority for both parents to receive such notices from the said CHILDREN’S school and attend such functions at that school that the parent receives notice of and also attend any extracurricular activities of the said CHILDREN provided that neither parent approach the other at such function and that the children be free to speak to either parent.

That until otherwise agreed, the said CHILDREN’S General Medical Practitioner shall be Dr S of the … Medical Practice, or another medical practitioner within the same practice, such as the proprietors of the practice, Drs SN and SN, and their Dentist shall be Dr M (…).

That this order be sufficient authority for both parents to communicate with any treating medical practitioner or any other professional with whom the said CHILDREN are involved.

That there be no change of school of the said CHILDREN, unless the MOTHER and FATHER agree.

That in respect of any extracurricular activity arranged by either parent for the said CHILDREN, the other parent is not required to arrange for the said CHILDREN to attend any such activity when the said CHILDREN are living with that parent, unless that parent agrees.

That the MOTHER and FATHER not discuss the proceedings with the said CHILDREN, or denigrate the other parent or family members or friends to, or in the presence of, or hearing of, the said CHILDREN.

That the said CHILDREN attend therapeutic counselling only for the purposes of enabling the said CHILDREN to better manage the past conflict of their parents and the consequences of this decision, with the FATHER to meet any costs of such counselling, and that for the purposes of such counselling the FATHER provide the counsellor with copies of the reports of Ms L and Ms B.

IT IS FURTHER ORDERED BY CONSENT

That the Father’s Application for Contravention be withdrawn.

That the Father’s application pursuant to Section 118 of the Family Law Act be withdrawn.

That each of the parties be restrained from instituting further proceedings in relation to children’s matters without first obtaining leave of the Court.

That any other outstanding applications in relation to children’s matters be dismissed.

That the application for dismissal of the Independent Children’s Lawyer be withdrawn.

IT IS FURTHER ORDERED

That the Mother pay the sum of $7,387.80 by way of costs to the Independent Children’s Lawyer on or before 28 October 2007.

That in relation to the monies paid pursuant to paragraph 23 hereof, the Mother pay interest thereon at the rate of 10.75% per annum calculated from 28 October 2007.

That the Independent Children’s Lawyer be discharged.

That the final hearing of the 79A Application be adjourned for 2 days at a date to be advised.

That the matter be listed for a further Pre-Trial Conference at a date to be advised.

IT IS REQUESTED

That, at the Pre-Trial Conference, the Registrar consider and make appropriate directions in relation to the following matters:-

(i)     the parties will need to identify the assets and liabilities existing at the date of the hearing in May 2004, together with all assets and liabilities of each of the parties at this time;
(ii)    areas of agreement and disagreement in relation to such listed assets and liabilities;
(iii) where there is no such agreement, appropriate directions in relation to the filing of all necessary valuation evidence in a timely way;
(iv)   the adequacy or otherwise of the current material filed by each of the parties in relation to the property proceedings alone;
(v)    if the current material is adequate, the need to avoid exposing the parties to the cost and inconvenience of filing fresh affidavits;
(vi)   if the current material is inadequate, directions that each of the parties file one comprehensive affidavit of evidence-in-chief addressing all relevant matters in issue, together with any affidavits by experts or third parties.
IT IS FURTHER ORDERED

That pursuant to s65DA(2) and s62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Jordan delivered this day will for all publication and reporting purposes be referred to as Gavin & Garden.

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF3025 of 2003

MR GAVIN

Applicant

And

MS GARDEN

Respondent

REASONS FOR JUDGMENT

EX TEMPORE

The wife's application at this time is an application for a fundamental change in the care and living arrangements of the children pursuant to orders made in August of 2005 after a final hearing. Residence, as it then was, was given to the father of the two children, V born in November 1993 and J born in June 1996, and orders were made for the mother to have contact on alternate weekends and for half school holidays and on other occasions.
That hearing and determination was preceded by another hearing in, I think it was, May of 2004, which eventually was resolved by way of consent orders in the mother's favour. The legal proceedings have been before the Court since 2003 and there are literally dozens of applications, the parties have been involved in endless appearances before the Court, and the children have been exposed to multiple assessments, interviews and reports.
The hearing in 2005 was conducted over three days, on 18, 19 and 22 August. The children were legally represented by a solicitor and counsel. The mother was legally represented by a solicitor and counsel and the father appeared in person and, as I say, residence was awarded to the father.
The mother exercised her right to appeal and the Full Court handed down its decision in July of 2006 dismissing the mother's appeal. Some four or five months later, the mother filed an application, through an amended response, seeking a change of residence and asking this Court to re-litigate the living and care arrangements of the children yet again.
The matter having the prospect of being the subject of a final determination on a third occasion raises a preliminary issue in my mind which is now being addressed. The broad principle behind this consideration is that, ordinarily, a final determination of matters between parties within our justice system should be just that, final. The parties and their families are entitled to finality and certainty and not to be exposed to the spectre of never ending litigation about the same issues.
In criminal and civil arenas that philosophy, that principle is applied quite strictly. Of course, in Family Court jurisdictions, there are broader considerations which relate to the welfare of children and the prospect that the care of children is an ongoing matter and that there could be significant changes in the circumstances of the children or of the parties which may give rise to the prospect of leaving the door open, as it were, in appropriate circumstances to litigate such matters on a second or perhaps even a third occasion. Nevertheless, the principle has application, and I note for the record the issues relating to cause of action estoppel in children's proceedings were discussed by the Full Court in Rice v Asplund [1978] 6 FLR 570. That judgment discussed the issue of whether the Judge should determine whether there has been a change of circumstances and when that matter should be considered. The Chief Justice, at that time, said as follows:
The principles which, in my view, should apply in 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 early 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 application that there is some changed circumstances which would 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.
In the marriage of D and Y [1995] that matter was further considered and there was emphasis applied in the following remarks which appear at page 761:
..... fresh applications for custody should not be entertained unless there exists a substantial change in circumstances, has been consistently stated in cases …..
There was discussion about the right of the trial Judge to consider such matters as a preliminary question or at the conclusion of the evidence. It has been said that the Court needs to take into account the length of the time the children have been in a particular situation, the earlier decision and the reasons. Of course, the best interests of the children remain paramount.
In this case, and having regard to those matters, given that this is the third hearing of an application filed within four or five months of a decision of the Full Court, which in turn confirmed a recent decision at trial, in my view a significant onus rests upon the mother to satisfy the Court that there is a substantial change of circumstances justifying a reconsideration. Given that this is a third and final hearing and it is so proximate to the decisions at the trial and of the Full Court, I take the view that it is appropriate to consider this aspect of the case as a preliminary matter.
That requires me to examine the previous decision, the reasons for the decision and the evidence the mother now places before the Court at face value to determine whether a substantial change of circumstances has been or may be demonstrated on that evidence.
I turn to the earlier decision and the reasons. I note that the matters raised at that time included issues relating to the father's mental health and the extreme levels of conflict between the parties. There were mutual allegations of domestic violence. There were concerns that the children were exposed to their parents’ mutual negative attitudes towards one another and that each had inappropriately involved the children. Each of the parents alleged against the other that there were efforts to alienate the children. The case the mother was alleging was that the father was indulgent and manipulative. It was observed by experts and in the judgment that the Court was dealing with two people from different backgrounds with entirely different belief systems and values and entirely different parenting styles.
At that time, there was also a focus upon an incident between the mother and V where it was alleged that the mother had either excessively disciplined or assaulted her son. A prominent feature of the case, as identified by the father and by some of the report writers, was that, even in the context of mutual antipathy, the mother exhibited extreme, vitriolic, hostile attitudes towards the father and embroiled the children in her attitude and expressions towards the father.
I note that at the time of that decision, the Court took account of the children's stated wishes to reside with the father and noted in particular that V was extremely firm in his stated wishes and that he had held them for two years, and that he was in fact presenting as being hostile to the notion of spending time with his mother. His sister was less fervent in her stated preferences but, nevertheless, satisfied those assessing it that her preference was to reside with her brother and with her father. The closeness of the two children were noted.
It appears from the judgment that it was concluded that, of the parties, the father presented as the parent who had moved on better than the mother and that he was, in that sense, better equipped to focus upon the children and their needs.
It was noted that the Court on that occasion was not presented with one clear cut solution. It was not the case of one parent providing all of the answers. Problems were identified with either placement.
In the end, having regard to the children's wishes and the assessments of the then current positions and presentations of each of the parties, it was determined that the children should primarily reside with the father, that the level of conflict and antipathy between the parties was such that a joint care arrangement was simply not viable and that the father should have sole responsibility for the day to day care of the children and that the mother should have alternate weekend contact, I think from Thursdays to Mondays, extended weekend contact and half school holidays.
What emerges from the material subsequent to that date includes the fact that the mother exercised her right to appeal. At the same time, she exercised the right to make another decision which has been the focus of attention by the mother, the father and the report writer. The mother made a conscious decision not to avail herself of the contact as ordered by the Court. This was a conscious decision, as it were, to deprive the children of the opportunity to spend time with her until the conclusion of the appeal.
The appeal was not determined and judgment not given until July of 2006. As a consequence, by the mother's decision, the children had not had contact with her for 12 months.
What followed was the mother then made applications and brought contravention proceedings designed to secure the immediate reinstatement of the orders for contact she had abandoned 12 months earlier. The father's response was to resist the immediate reinstatement of that level of contact, saying that the children had been adversely affected by the mother's decision, and that there needed to be a gradual introduction of contact.
Those arguments and appearances in relation to them bubbled along without satisfactory resolution, with the mother apparently standing firm on the proposition that the contact had to be a full reinstatement or none, and the father standing firm that there needed to be a reintroduction period. The consequence of this stand-off was that the children's contact with their mother was not resumed until Court order in April of this year. In the end result, the children did not spend any time in the company of their mother for almost 20 months.
In the meantime, pending the resolution of those matters, in December of 2006 the mother, by her response, filed an application for shared living and care arrangements and, by an amended response on 12 February 2007, sought an order that the children reside with her 10 days per fortnight, as I understand. What she is now saying through the report writer is that the father's contact should be even more limited.
This matter was listed for trial in February of this year. The mother has been without legal representation until very recently, as I understand it. The father has been without legal representation since and before the hearing in 2005. On 18 May at a pre-trial conference, the mother was ordered to file her affidavit of evidence-in-chief by 5 June.
The mother has provided a list of documents which purports to refer to and rely upon all affidavits and all reports that have been filed by her or by the child representative since 2003. I do not take that material into account in the assessment of this preliminary matter because that would be to beg the question of whether the Court should go behind the decision of 2005 and before it, and reconsider all of those matters the subject of the hearings in 2004 and 2005. Of course, Ms McMillan, who appears as counsel on a direct brief from the mother, refers to the fact that the mother has been without legal representation and that she may not have a full appreciation of the legal requirements and niceties of litigation and that the Court should adopt, as it were, a generous view of the wife's material. Litigation is more often than not conducted by parties themselves, and whilst the Court does its best to accommodate parties and provide them with appropriate levels of assistance, it nevertheless remains, under this program, an adversarial system. It is trial by affidavit in terms of evidence-in-chief and important principles remain applicable, whether the parties do or do not have legal representation, relating to natural justice and the requirement of each of the parties to have an understanding of the case being presented by the other party and against them, and an awareness of the issues identified by the parties in their material.

My impression is that the mother is a person of some intelligence. I note from the material she is a professional by occupation. She has appeared before me and appears to have a good grasp of appropriate matters to address with a Court. She does come to this exercise, no doubt with the burden of not having the legal training which others have, but she does so as an intelligent woman who has been in this litigation process, no doubt altogether too long. She has developed an understanding of the matters relevant to these proceedings and, in any event, I do need to have regard to the material that the wife presented herself as part of her case to consider this preliminary issue.
The wife filed four affidavits on 5 June. One dealt with property matters. A second one attached an affidavit dated 27 January. Now, that in itself is something of an irregularity. The direction was to file affidavits on or before 5 June. It was not to, as it were, re-file old affidavits. I do note I had regard to that attachment. It deals, in large part, with historical matters, in particular, the reasons for the appeal and a summary of the main points which appears largely to be a criticism of the decision at the trial and, no doubt, touches upon the matters that the wife raised with and argued before the Full Court. Other parts of it deal with historical matters relating to the father's bi-polar disorder and the like, his parenting, all matters which predated the decisions in 2005 and of the Full Court in 2006.
The wife then comments upon some of the reports used in the 2005 proceedings and embarks upon a criticism of the independent children's lawyer. She then makes what is really some submissions about the desired outcome and the impact on the children if they stay with the father. In fact, the whole document, the 27 January document, whether regularly before the Court or not, really has the appearance of a submission more than an affidavit.
There is a third affidavit filed on 15 June which seems to deal in large part with the history of the relationship dating back to an alleged assault 15 years ago in 1992 and other conduct during the marriage which, again, would have been the subject of matters available to be placed before the Court in the 2005 hearing.
The affidavit does then address a recent report by Ms J. Again, however, those remarks appear to be largely argumentative or submissions, rather than evidentiary responses to what is set out in that family report.
It appears, with respect, that the only affidavit of any probative value is a fourth affidavit filed on 5 June which starts with:
The children came to my house for their first contact visit on 9 April -
and tells the story of the mother's contact.
Therein lies one of the inherent difficulties in this case as a consequence, firstly, of the mother's decision not to have any contact with the children and, secondly, the subsequent disagreement between the parties about how that contact should be reinstated. It was some 20 months when the children did not have contact with their mother. The mother did not have contact with the children and, therefore, is unable to provide the Court with admissible evidence about the state and presentation of her children in the previous 20 months.
I turn to the one affidavit of potential probative value and note it is only some six pages in length. It refers to the happy reunion between the mother and the children and how they have appeared to have taken positive benefit from the time with their mother. It raises issues, such as the children appearing to prefer their mother's cooking. She raises concerns about the fact that V does cooking at the father's home and that he is not a good cook. She raises concerns that V is overweight and J is underweight. She raises concerns about the adequacy of their clothing and the fact that sometimes the father buys second hand clothing. She raises issues about the children being required to do household chores. She raises a concern about the father not spending much time with the children. That appears to be a fairly bald assertion to that effect based largely, if not entirely, on the fact that she rang at 7 o'clock on one night and the phone was not answered. She refers to the fact that the children were always extremely close and that she has observed some evidence of some tensions and conflict between them, particularly as a consequence of V's attitude towards his younger sister is not the same as it used to be. She refers to the fact that the children are allowed to watch a TV program in the father's home that she disapproves of. She talks of the fact that, at the conclusion of contact, the children appear to be anxious when the time is coming to an end and she says "I guess" they are being interrogated when they return. She raises questions about the children wanting a vegetable garden and pets.
What I also had before me and take into account in this preliminary application is the welfare report of Ms J. Not surprisingly and quite appropriately, Ms J, in the throes of that exercise, focused entirely on the events since 2005 and the current circumstances of the children. She observed that, when discussing matters with the mother, at times the mother sought to revisit historical matters and raised some of the complaints raised against the father at the trial, and otherwise raised with Ms J her complaints about the decision at the trial. The father raised the fact that the children were affected and confused by the mother's decision to, as he describes it, reject the children.
Ms J did apparently express some surprise or concern about the mother’s decisions and the mother raises concerns about the fact that Ms J appeared to focus on the mother's decision not to have any contact with the children and suggests that she was distracted by it. It obviously was a very material issue and I am not surprised that Ms J wanted to explore, particularly with the mother, whether she appreciated the consequences and the impact of her decision upon the children.
There was discussion in the report about letters the mother had written to the children which included vitriolic criticism and condemnation of the father to the children and whether the mother appreciated the impact upon the children on her decision to share that information with them.
At par 35 and on, Ms J identifies issues raised by the mother and they included the fact that the mother had previously been the primary care-giver. She referred to the father's mental problems, the fact that she could offer the children more in terms of education and particularly in relation to J's development. She raised a concern that the father shared Court details with the children, that V does the cooking and about the fact that the father was resisting contact other than on Saturdays.
Ms J interviewed the children and she observed that they were in grades 9 and 6 respectively, that V was attending … High School and J continued at her school. The father observed that J is top of her class and raised concerns that V had been more playful at school and this was not helpful to his performance, but he believed that he had been applying himself better this year.
In relation to J, Ms J observed that J said that she had missed her mum during the 18 months she had not seen her but there were times when she had not thought very much about it. She said regarding her present wishes:
I do want to see mum but not as much as I see dad.
She said she would like to see mum maybe two or three days a fortnight or for a week. After giving further thought to it, she concluded she would not mind four days a fortnight.
As to V, in par 57 he says that his mother has continued to describe his father in negative terms such as "mental". He recalled visiting with her on the first contact weekend after the August 2005 hearing and that the mother had told him that he was a liar because of the things he had said to Ms B about her, such as how she threatened them with knives and was hitting him. He reiterated to Ms J that the mother had done those things and that she had said that he couldn't stay with her. He described how the mother gets ridiculously angry over small things and makes it hard staying with her. He is clear that he does not want to live with her, he does not feel close to her. He appeared to accept that he needs to see her every Sunday because of the current orders. He indicated he preferred not to do so although he understands that the Court thinks it is best for children to have a relationship with both parents.
He told Ms J he is not entirely happy about the visits every Sunday, however, because they interfere with his other social activities. He suggested that the visits might alternate between Saturdays or Sundays. When Ms J raised J's expressed wishes to spend more time with the mother, V confirmed that this was more than he would like. He said that the maximum he could deal with was three days per fortnight.
Ms J then provides in her summary and assessment, conclusions and recommendations the following observations. Par 70 subpar 3:
The mother bases her present case for children living with her on old material. The father builds his case for the children having only minimal contact with the mother primarily on the past history of her treatment of them, that is dated also - pre-dating August of 2005. It is my view that they are unresolved in their personal issues about each other and this manifests in constant argument over children's welfare, neither being able to let go and move on from the marriage breakdown. Their battles have impacted on their parenting.
She then referred to the circumstances arising as a consequence of the mother's decision not to see her children and went on to say about each of the parties:
It is my view that neither party demonstrates any significant understanding of the children's feelings and needs. I consider that their views and conclusions are not helpful.
She went on to say at par 9 and beyond:
Previous family reports have commented about the closeness of these two children. It is my view each has been the only consistently stable person in the other's life. [V] has been careful to watch out for [J’s] needs and feelings, at times compromising his personal preferences in order to keep her happy. [J] relies heavily on him for her sense of security. In many respects the children's wishes and comments are the only reasonable reliable indicators of what ought to work best for them. [J] wants to spend four days per fortnight with her mother. [V] sets his sight as three days per fortnight with her.
As a reasonable compromise between their respective wishes I suggest that they spend time with their mother every second weekend, from Friday afternoon until Monday. As I see it, however, there is another issue that may override even the children's express wishes, that is both of these parents are so consumed by this never ending battle that it has reached the stage where neither the mother nor the father actually wants the other to have any on-going contact with the children.
The only relief that the children have experienced from the fighting was between August of 2005 and August of 2006 when they didn't see their mother, that is if the children live with one parent and do not see the other at all, this reduces issues that the parents can actually fight about. Perhaps the only reliable way to circumvent conflict is to remove one parent from this destructive dynamic. In addition, or alternatively I have wondered whether both parents ought to be required to apply to the Court for permission to lodge an application.
It is to be hoped that [V] and [J] never need to be interviewed again for the purposes of a family assessment. The events of August 2005 should never be repeated again where [V’s] comments to Ms [B] have been the focus of contention as to her recommendation at paragraph 72. From the information available to me at the time of this report preparation it is recommended that the following actions be given serious consideration; (a) if the Court is minded to utilise the children's comments as its primary basis for determining their care arrangements, a balance of their wishes would see them living with their father and spending time with their mother every second weekend from Friday after school until Monday before school provided that she can collect them from school and deliver them to school.
If the Court concludes that the conflict between the parents is so intractable that the children need to be protected by a severing of their relationship with one parent, the children would need to live with their father and not see their mother except for a couple of brief meetings each year.
The question of the final recommendations of Ms J may become more pertinent subsequently. At the present time, I have regard to the contents of Ms J's report in conjunction with the affidavit material of the mother I referred to, to consider this preliminary issue of whether or not there has been a demonstration of a substantial change of circumstances which justified a third final hearing in this matter.
Suffice it to say that a party cannot create a situation of substantial change and then use that as a basis for a third hearing. Whatever be the mother's justification in her own mind, she is clear that it was her decision not to have any contact with her own children for a period of 12 months. As I say, she cannot use that as a basis for reopening yet again the litigation. If anything, I would share the concerns of the father and apparent concerns of Ms J that, rather than being a reflection which might justify a reconsideration of whether the father is a suitable primary carer, the mother's decision at that time could, if anything, only be seen as a decision that my reflect adversely against her parenting and her focus upon the welfare of her children.
She would argue that it was a decision based in their interests because she was concerned that, if she continued to see the children pending appeal, they might be exposed to manipulation by their father, but the primary decision was made by the mother, the primary responsibility is with the mother and it is not a decision about which the father can be asked to accept any responsibility or attract any criticism. The focus of that decision is not something as against the father which justifies a reconsideration of his primary role as carer of the children. It is either a non-issue on that front or, if anything, it is an issue that the mother would have to explain and justify.
The other matters raised by the mother in her material are either of comparatively little moment or are illustrative of the types of different attitudes to child care and parenting which was all too apparent in 2005, and directly discussed and explored by the report writers and in the judgment relating to the different values in parenting styles. The mother is clearly a better cook than the father. The father sees it as appropriate that their 13 year old son undertakes responsibility for the cooking and that each of the children undertake responsibilities for household chores. They are not matters which of themselves speak of inadequate, neglectful parenting. Many children are required to do household chores and some of those might include cooking. I cannot, in the face of those types of complaints, say that there is evidence of some substantial new development which justifies a reopening.
As to the children's anxiety at the end of contact, that is hardly surprising particularly given the background that they had not seen their mother for 20 months. It is the norm rather than the exception that children who enjoy seeing one parent, can be unhappy about the prospect of contact coming to an end, and I am certainly not in a position to draw any adverse conclusion based on the mother's speculation of "I guess" something must be happening in the home.
As to the fact that there are differences in the relationship between V and his sister when he is 13 and she is 11, than was the case when he was 11 and his sister was nine, is again not itself evidence of any failing under the current arrangements and is more likely to be evidence of different stages the children are at. In any event, the continued close relationship between the children was a factor in 2005 and remains a factor, notwithstanding the conflict observed by the mother. The best example of the value of that relationship is the concessions V made to being prepared to try and accommodate his sister in her preferences about the amount of time spent with the mother.
Counsel for the mother raised two issues not included in the mother's own material which she says would emerge from subpoenaed material. She says that that material was not inspected until yesterday and does not form any part of the affidavit material before the Court. As I understand it, she would seek by tendering such evidence to demonstrate that V's schooling and academic achievements have deteriorated since 2005. I gather, having presented evidence to that effect, she would then, on behalf of her client, ask the Court to conclude that it must be because of some failing of parenting in the father's household.
Obviously, compromises in children's education is a relevant consideration but it is not open to the Court to draw conclusions from the bald fact that a child's academic progress undertakes some change. I note that subpoenas had to be presented some 35 days ago. I have not been advised of any reason why subpoenas could not have been inspected well prior to the day of trial. The difficulty in the proposition advanced by the mother’s counsel in relation to this matter, and also a question of some departmental file, is that it is raised in a manner which prevents the respondent to these types of allegations responding to them.
The onus is upon the mother to draw some link between the father's parenting and any deterioration in academic results in a way that enables the father to understand the case that is being presented against him and, if necessary, to adduce relevant evidence to deal with it. He should not be presented with such a serious allegation at half past 10 on the first day of the trial. Further, in any event, in the absence of some appropriately qualified assessment of these matters, which would not be before the Court, one would be left to speculate about all sorts of factors which may contribute to any change in V's academic results. However, that begs the question that that matter is not being raised by the wife in her material, save in a broad sense that she has always contended, including in 2005, that she was more focused on the children's education. She suggested the father was more interested in extra curricular activities and music and the like. That was itself a matter well and truly which was part of the wife's case in 2005 and, in those circumstances, was a matter to be taken into account by the Court in reaching its difficult decision in 2005.
Returning to the mother's affidavit material and the issues she identified through the reporting process, I am not satisfied that she has, through either of those vehicles, identified any substantial change of circumstances other than those brought about by her own decisions, which could hardly serve in the case against the husband. The other matters are either of little or no moment or are illustrative of the different attitudes to values and parenting styles that was a feature of the original case. In that background, the other information I have is that the children's wishes which were a significant factor in the decision made in 2005 have remained the same, if not become firmer in the cases of both children since 2005 in favour of a retention of the status quo.
V, who was very firm in 2005, remains equally firm, if not more so. J, although she clearly missed her mother and wants to spend time with her, is perhaps clearer in her stated preference that she wants to spend more time with her father than with her mother. Accordingly, the fundamental which existed in 2005 is the same and certainly no better for the mother, and, of course, the children are now two years older and their wishes necessarily carry more weight. The fact that they have been in their father's care since 2005, the fact that their mother has had little day to day involvement with the children and the responsibility has fallen almost entirely upon the father, leaves the wife in a position where she has little relevant information about the circumstances of care in the father's household. She tries to overcome it in some ways by either speculating about what has happened in the last 20 months or, alternatively, by relying upon historical matters prior to 2005. Such an approach cannot, in my view, provide a proper premise upon which it would be appropriate for this Court to hear and determine at large the questions relating to the living arrangements and day to day care arrangements for these children.

In my view, the only question which is appropriately before the Court relates to the amount of time that the children should spend with their mother and in that regard that is when the report of Ms J looms very large. Ms J highlighted, as have other report writers, the investment the parents seem to have in the on-going battle between them and that the Court should place great weight on the children's wishes and comments as the only reliable indicator of what would work best for them. She notes the compromises, as it were, between these two children who have supported one another through their ordeal, and that is the matter that I will need to address.
I hope each of the parents, now that the question of the care and living arrangements of the parties is not to be reconsidered and remains vested in the father, will take some time out to carefully consider what Ms J has had to say and, with the assistance of the independent children's lawyer, see if they can resolve this very narrow issue which, as I perceive it, may well fall fairly adjacently to what is recommended by Ms J, subject to what I might be persuaded to do otherwise.
Having dealt with the substantive matter, I propose to stand the case down to give the parties the opportunity to take stock, to consider their position, to see if they can resolve that narrow issue with the assistance of independent children's lawyer. I will take a 20 minute break in any event. If there is an indication that more time could usefully be spent in discussing resolution, I will continue to stand the matter down. If it is apparent that that is not worthwhile, then I think we could simply move to submissions on that point and I will hopefully be in a position to make a decision.
ADJOURNED [11.43 am]
RESUMED [12.40 pm]
By way of clarification and certainty, I think it is appropriate that the Court formally make orders in terms of pars 1 to 17 of the orders of 22 August 2005, save that in par 1 the term will be "live with" rather than "reside" and par 5 will be "spend time with the mother". Subpars (2) and (3) of par 5 will remain the same. The issue for the Court is in relation to subpar (1).
The independent children's lawyer and the parties have appropriately conducted this aspect of the case on submissions only. That is a sensible way to deal with this narrow issue, the parameters of which are defined by the propositions advanced by the independent children's lawyer and the mother and father respectively. It is in relation to the alternate weekend contact. The independent children's lawyer submits that contact should be from after school Friday to the commencement of school Monday, which submission is consistent with the primary recommendation of Ms J which appears in par 72A of her report attached to the affidavit of 31 May 2007. The father submits the contact should be from after school Friday to midday Sunday. The mother submits that contact should be from after school Thursday to commencement of school Monday.
There is not a lot of material on this question of the on-going extent of the time the mother should spend and, really, submissions are perhaps the most effective way for the parties to have their respective positions identified and explained, and I have been happy to accept from the Bar table matters each of the parties wanted the Court to take into account.
It appears that a starting point is that the father acknowledges that there should be on-going contact between the children and their mother, and the only issue now is about the extent of that fortnightly contact, with the father saying effectively almost two days, including two nights, and the mother saying it should be four nights.
The father, in support of the shorter periods, relies upon the children's stated wishes. V's preference, as set out in the report of Ms J, was that he would be content with once per week alternating between Saturdays and Sundays or, alternatively, a weekend per fortnight. J was a little bit less clear. She is reported as saying, as set out in par 55, that she did want to see her mother, but not as much as her father. She apparently said that she would like to see mum maybe two or three days a fortnight or for a week, and after giving further thought to it she concluded that she would not mind four days per fortnight. During the course of that exercise, J apparently said that she wanted to see mum, but less than see dad, maybe two days, maybe three days, maybe a week about. And finally, it seems to be her final position was that she would not mind four days per fortnight.
Ms McMillan, counsel for the mother, as it were, relies upon what might be described, on one view of it, as the high water mark, although she says at one stage the child did make mention of a week a fortnight. In any event, she submits that four days per fortnight is appropriate, particularly having regard to J's age, her greater need for female role modelling, her greater needs for access to her mother, particularly as she passes into adolescence and puberty, and that the type of proposal by the mother would best meet those needs.
The father says that he has an additional concern about more extended time, and that is that the children are heavily dependent upon computers and that they need Sunday afternoon to have access to those computers to complete the type of quality work he has observed to date.
On that issue, the mother says that she has access to computers and it is conceded that there are certainly facilities for the children to transfer files electronically from one computer to another. On that issue, it is not open to me to assume that the father has a mortgage on interest in the children's education and/or that the mother is not equally interested in the children's education and equally able to ensure that the children complete any necessary homework. Indeed, to the contrary, the mother makes it a limb of her case that, as between the parties, she is better equipped and more focused on education. I am certainly not making that as a finding, but I am comfortable with the notion that I am dealing with two parents who each have an interest in their children's education, each have an interest in ensuring that they attend to their responsibilities and do as well as they possibly can so that, in conjunction with the technology available, I am not intending to conclude that the mother is not ready, willing and able to attend to the children's education requirements on a Sunday afternoon, for example.
The advantage of the proposals of the mother and independent children's representative, either on Thursday or Friday and finishing on Monday as opposed to Sunday, is that it extends to the mother and the children greater opportunity for the mother to have involvement directly and indirectly with the children's schooling by being able to collect them at the completion of school on Friday and, if appropriate, engage with the children and/or their teachers, as parents do from time to time, on both Friday and Monday. It will require of the mother and the children a need to attend to the responsibilities set for the children over the weekend and give the mother the opportunity to have involvement in their assignments and the like over the weekend, and I am of the view that these children are likely to benefit and reach their maximum potential if they have the assistance and input of each of their parents into their education and projects. I think, rather than being a reason to curtail the mother's contact to midday Sunday, there is every reason to provide the opportunity for her to accept responsibility and be involved in that way.
As to the Thursday or Friday commencement, the focus of the submissions on behalf of the mother has largely been J. Of course, she is only one of the two children involved in this case, and the other is V, and it is very clear that four days per fortnight is well beyond his preferences and well beyond even what he is stating he would be prepared to accommodate for his sister's sake. Whilst these children are individuals, they are also very much a unit and I do not want to put in place orders that are likely to be so resisted by V and so resented by him that it might undermine the prospects of the whole package being a positive experience for the children and being workable. I believe that is the reason behind Ms J striking at a compromise that is something perhaps less than what J would not mind, which is much beyond V's preference and closer towards the spectrum towards J.
I think that the proposal of the independent children's lawyer and Ms J finds a reasonable child-focused compromise which best accommodates each of the children and would see that the children would understand that their views have been heard and listened to and taken into account. I would be concerned that if V has, on the face of it, somewhat reluctantly made the concession set out in the report, he is then ignored and required to attend four days per fortnight. Such an outcome may prove to be counterproductive in the meeting and longer term for both of the children.
As to the issues relating to J's access to her mother, that is important. I fail to see how that access to her mother is facilitated by four days, four nights but is not by three nights, in conjunction with the capacity to contact her mother in other ways set out in the orders and during other occasions. I do not see that as providing a basis for otherwise interfering with the sensible recommendations of Ms J and independent children's lawyer.
Further, I do think, I should have indicated, there is some merit in the notion of the handover being attended to at school in relation to the father's midday proposal.
ORDERS DELIVERED
On the issue of costs of the independent children's lawyer, this Court has a very limited role to play. The Full Court has already made an order for costs, so that the wife has that liability and is exposed to it. On the face of it, the mother does not have the apparent capacity to meet the order, but it seems to me that it is appropriate by way of, as it were, machinery provision, to at least provide the facility for the independent children's lawyer to pursue the fruits of the judgment it had received by fixing the costs in the sum set out in the affidavit material and no exception has been taken to the quantum of the costs as set out in that material. It will be a matter for independent children's lawyer, whether they can or will pursue that matter, but obviously I am not in a position where I can dismiss or change or interfere with the decision made by the Full Court which is, as I say, that the wife is obliged to pay those costs.
What I will do, having taken account of the mother's apparent financial circumstances, is provide, as it were, perhaps a more generous program than proposed by the independent children's lawyer which gives the mother a bit more time before the independent children's lawyer is in a position to take the next step, as it were. The independent children's lawyer has asked for an order that the mother pay within 60 days.
I propose to order that the payment be within 120 days and as to the interest, I note again that the independent children's lawyer, in a sense, is protecting public funds. 120 days is four months. They ask for the interest be payable from 27 July. I will again extend to the mother the grace period. This judgment for costs has been outstanding since July 2006, so that it cannot drag on forever but I will order that the interest run from the expiration of that 120 days, four months, so that is 28 October.
ORDERS DELIVERED
ADJOURNED [1.02 pm]
RESUMED [1.36 pm]
RECORDED : NOT TRANSCRIBED
Counsel for the mother has raised a preliminary point and submits that the husband's application pursuant to section 79A of the Family Law Act, in effect, should be dismissed summarily. As I have indicated earlier in relation to the children's proceedings, for reasons unknown to me, and I gather beyond the control of the parties, the matter was listed for only one day. Even on the children's matters, that appears to me to have been ambitious because the amount of material and the issues to be canvassed in this case were at least potentially vast.
It was only as a result of the children's part of the case being dealt with summarily on the grounds set out in my earlier reasons, and the parties then seeing fit to discontinue certain proceedings, consent to orders in relation to the institution of further proceedings and narrow the arguments in relation to the time the children spend with each of their parents, that that aspect of the case with all of those concessions could be managed within the confines of the day.
That left only the afternoon to deal with the husband's section 79A application, it being an application which has, as its starting point, property orders which were made in May of 2004 and which, on the husband's case, resulted in property orders being made to the wife's advantage so that she receive 70 per cent of the net value of the property and he receive 30 per cent of the net value of the property, and he contends that that order was entered into on the circumstances as they presented to him at that time. Fundamentally, that it was also to be ordered at that time that the two children of the marriage, V and J, who would have been around 10 and eight at the time of the orders in 2004, were to be in the primary care of their mother and he submits to me that the facts of this case enabled him to bring the matter within the provisions of section 79A(1) subpar (d) of the Family Law Act. Acknowledging that final orders for property settlement had been made, he contends that circumstances have arisen since the making of the order, being circumstances of an exceptional nature relating to the care, welfare and development of the children of the marriage where the applicant has caring responsibility for the children and the applicant will suffer harshly if the Court does not vary the order or set aside the order and make another order in substitution for that order.
He says that a case is made out on the evidence he produces under that subsection so as to give rise to the Court considering exercising its discretion in his favour. Counsel for the wife argues that the husband fails the test that is set of him by the provisions of section 79A and, in the end result, it seems to me that for a number of reasons that is the only matter I can turn my mind to today and I do so on this limited basis, amongst other reasons, because it seems to me that, firstly, there may well be deficiencies in the material provided by each of the parties to the Court about the financial circumstances of the parties at the time of the original order and at the present time. The Court is to rely upon a report by an accountant which was only filed on 25 June, well after the expiration of time that he was meant to have his evidence-in-chief before the Court.
There is some question about when and if the wife has been served with a copy of that affidavit but, in any event, there are, needless to say, fertile grounds for arguments about the admissibility of the contents of that document in any event. Of course, in determining these matters, the Court also needs to have regard to the current financial circumstances of each of the parties, including evidence of value of property of each of them as at June of 2007. I understand there is no agreement between the parties as to the value of the former matrimonial home, either at the time of the hearing in 2004 or, if there is in relation to that time, there is certainly no agreement about its current value. There is no qualified valuation evidence before the Court.
The husband says he has some evidence before the Court in relation to the current value of his property. I am not certain whether that is in the form of a formal valuation report or otherwise.
In addition, by the time I have dealt with this aspect of the case there will be little more than half an hour left in the Court day and I convened the post lunch session early to accommodate the necessary time, and it is quite clear that if the substantive matter is to proceed, then it would not be possible to place all of the necessary evidence before the Court, have the husband give his evidence and be cross-examined, have the wife give her evidence and be cross-examined, hear submissions and give judgment.
I suspect that if there is a case to be heard and determined on property, it would take at least one day and potentially longer, and certainly when and if there was either agreement as to values or, alternatively, valuation evidence before the Court, that would only serve to extend the hearing. So in reality it is not and probably never was viable to have this section 79A application heard and determined in one day, on the same day as the substantial children's matters.
Happily for the parties, a great deal of progress has been made in relation to the children's matters and the applications of each of the parties have either been heard and determined by this Court or, alternatively, have been the subject of agreement. In the two hours left, all I will be able to do will be to consider this preliminary application made on behalf of the wife.
I am comfortable that it is appropriate that I at least consider this preliminary application but, as I say, I do so on the basis that it comes before me as a discrete application. I am well aware of authorities which suggest that there may, on some occasions, be perils with the notion of separating the threshold question and the substantive question, although as I understand it, it remains within the discretion of the trial Judge to at least entertain the type of application made on behalf of the wife. Some caution necessarily needs to be exercised, all the more in this case because of the uncertain, incomplete state of the evidence in relation to some of the key factors which might assist the Court in its ultimate determination of: (a) whether discretion arises under section 79A and (b) if it does, it should be exercised in favour of the husband.
In essence, the submission of counsel for the mother is to the effect that the husband relies upon, firstly, an assertion that the property settlement between the parties was, in fact, 70/30 at the time of the 2004 proceedings and, secondly, a bald assertion that the Court should conclude that the only reason the adjustment was 20 per cent in the wife's favour was on account of the residence orders and, thirdly, that merely by virtue of a change of residence arrangements the order should be varied or set aside.
In terms of dealing with this summary application, I feel that I am not well placed to determine the question of whether or not the original property settlement did constitute, in fact, a 70/30 split. It will be necessary to examine the substantive evidence in relation to values of the properties and assets and liabilities of the parties at that time. But it may be open to the husband to establish on either agreed facts or the filed evidence at that time, that the distribution effected by the orders was, in fact, 70 per cent. I feel unable to rule one way or another in relation to that submission, either on the part of the husband or by counsel for the wife.
The husband has asserted in his material that the reason he consented to the order was on account of the residence arrangements and that, further, he was not only advised by his lawyers to the effect that there would be an adjustment which would follow the residence decision, he contends that the trial Judge made such an intimation to the parties generally and that he took that into account in consenting to the orders made at that time.
Again, I am of the view that it would not be appropriate on the summary basis to either, as it were, rule in or rule out the prospect that a Court might find that the adjustment was on account of those factors, although I acknowledged the validity of the submissions of counsel for the mother that that conclusion might be difficult to draw and that, for example, it may well have been that there were other section 75(2) factors which may have ordinarily had a bearing upon the percentage distribution.

The real focus of the husband's case and the focus of the mother's counsel's submissions at this point is in relation to the third point. The father says that it is change of residence which is the factor that he relies upon and the Court should take into account in setting aside the property orders. He argues legally and morally that that was the reason for him agreeing to a 20 per cent adjustment in his former wife's favour and that legally and morally he should be entitled to expect a similar adjustment in his favour given that the children have come into his full time care.
As Ms McMillan said on behalf of the wife, there is some authority on this proposition and she referred me, in particular, to the case of Simpson v Hamlin [1984] FLC 91-576, and in that case the Full Court was reviewing the decision of the trial Judge who entertained an application by the wife after the children had been voluntarily placed in her care after property orders, I think it was only some two months or so after the property orders were made, the children were placed with the wife and the wife was successful at trial in persuading the Court that she had brought herself within the provisions of subpar (d) and trial Judge varied the original order.
When commenting upon that, the Full Court said at page 79658:
Whilst we may have had some hesitation ourselves as to whether or not in the light of the history of these parties and their admitted future intention, the change of custodial arrangements were so exceptional as to take it outside the normal vicissitudes of life, it was in our view a finding his Honour was entitled to make on the evidence and which we cannot disturb.
Ms McMillan says that changes in residence are or can be part of the vicissitudes of life. In this case, she says that the husband, in effect, orchestrated the changes in the residential circumstances and that on the facts of this case I should not see such a change of residence as constituting an exceptional circumstance. Of course, on a summary application it is not sufficient for counsel for the mother to submit that the Court should not find that that would constitute exceptional circumstances, or it is not required of the husband yet that he must establish that it does constitute exceptional circumstances, rather counsel's task on a preliminary application sets the bar much higher and she must be able to satisfy the Court that the husband is bound to fail, that he does not have a case which could possibly give rise to a finding by a trial Judge that exceptional circumstances exist.
As I see it, the Full Court is clear that a change of residence in appropriate circumstances can constitute changes of an exceptional nature. They may not. Each case must be judged on its own merits. On this preliminary application, I am not prepared to conclude that the change of residence on the facts of this case may not be found by the Judge hearing the matter to represent circumstances of an exceptional nature. In this case, I note that the change in circumstances, and at this stage I am not dealing with the merits of what happened, who was or was not responsible, but the change of circumstances commenced - the orders were made in May 2004.
There was a change of circumstances in December of 2004 when the father held the children over. There were then a series of orders between December of 2004 and August of 2005 which resulted in the children spending more time with the father than had been the case under the original orders in May of 2004. By August 2005, there had been, in effect, a complete reversal of residence. Now, of course, that is a longer period than that which appears to have occurred in the case of Simpson v Hamlin, but in this case there is another factor which adds a layer to the circumstances of the change that may well be a matter that is arguable before the Judge hearing the matter, and that is, not only was there a change of residence within a period of about 15 months from the property orders, and a significant change in the time the children spent with each parent within seven months of the original order, but from August 2005 for the next 20 months, regardless of the question of responsibility, the father had the sole care of the children, so that this is not a case where there were variations on times. For a very substantial period, in circumstances brought about originally by the mother's own conscious decision not to see the children, the responsibility for their day to day care fell on a full time basis upon the husband without the assistance of the wife. That position continued for a period of 12 months at the wife's behest and for a further period of six to eight months as a consequence of the parties being unable to reach agreement and in the absence of orders by the Court. So that it may well be considered by a Court that not only the change of residence, but the fact that the father raised the children without assistance from the mother for 20 months after the orders of August 2005 might constitute exceptional circumstances which may well give rise to the need to reconsider the property claims of the husband.
As I say, I am not making a determination in favour of the husband or in favour of the wife. I am simply dealing with the preliminary application raised on the wife's behalf and affirming that, for my part, I am not satisfied that it is appropriate that the husband's application be dismissed on the papers.
It seems to me that this aspect of the case will have to be heard and set down as a discrete matter to be heard at, I would suggest, to be safe to cover the contingencies, it needs to be set down for two days. It is a question of whether this matter might be better served by being heard and determined in the Federal Magistrates Court or whether it should be placed on the contested list for allocation of hearing dates when two days can be made available. It might be quicker if you go to the Federal Magistrates Court, but I am happy to hear submissions one way or another.
RECORDED : NOT TRANSCRIBED
I think the matter needs to go back into the list. It needs to be the subject of a further directions hearing and I need to note for the record that on the pre-trial conference date the registrar will need to address issues relating to either having the parties agree about values of the property of the parties as at 2004, and to identify property that each of the parties currently have and agree about values of the property they each currently have, including superannuation. In the absence of agreement, the parties will need to be required to file valuation evidence, admissible valuation evidence in a timely fashion. So I will request the Registrar to pay particular attention to that aspect of the case and its preparation for the final hearing in relation to property proceedings. And because it is listed for two days, I will direct that the matter be listed at dates to be advised, and the dates to be advised will be the dates that it is both listed for a pre-trial conference and at the pre-trial conference trial dates will be allocated for the property proceedings.
RECORDED : NOT TRANSCRIBED
Again, I will also request that the Registrar turn his or her mind to the need to have the parties identify affidavit material which relates to property issues only, to bear in mind: (a) the inadequacy of the current affidavit material, if any, and (b) the saving of costs and inconvenience to the parties so that, given that this matter was listed for hearing today, that if the Registrar and the parties are satisfied that their current material is subject for their purposes for the final hearing, they merely identify that affidavit or affidavits and avoid the necessity of filing further material or, alternatively, that the parties be required to file one affidavit only covering all of the evidence they intend to rely upon in their case in-chief, together with any other affidavit material by experts or other third party witnesses.
RECORDED : NOT TRANSCRIBED

I certify that the preceding ninety-five (95) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Jordan

Associate:

Date:

[2007] FamCA 1000

28 June 2007

Key Legal Topics

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Family Law

Civil Procedure

Legal Concepts

Costs

Remedies

Jurisdiction

Procedural Fairness

Injunction