Gerardine and Coulter
[2013] FamCA 85
•14 January 2013
FAMILY COURT OF AUSTRALIA
| GERARDINE & COULTER | [2013] FamCA 85 |
| FAMILY LAW – ORDERS – Application to vary previous consent orders |
| Family Law Act 1975 (Cth) |
| Lindon v The Commonwealth of Australia (No 2) [1996] HCA 14; (1996) 70 ALJR 541 Mann & Prewett [2009] FamCA 929 Miller and Harrington [2008] FamCAFC 150 Rice v Asplund (1979) FLC 90-725 SPS and PLS [2008] FamCAFC 16, (2008) FLC 93-363 |
| APPLICANT: | Mr Gerardine |
| RESPONDENT: | Ms Coulter |
| FILE NUMBER: | MLC | 557 | of | 2011 |
| DATE DELIVERED: | 14 January 2013 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Cronin J |
| HEARING DATE: | 19 October 2012 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Bartfeld QC with Ms Vohra |
| SOLICITOR FOR THE APPLICANT: | Taussig Cherrie Fildes |
| COUNSEL FOR THE RESPONDENT: | Mr Schonell SC |
| SOLICITOR FOR THE RESPONDENT: | Pure Legal Lawyers |
Orders
That the initiating application of the husband filed on 11 July 2012 (as amended on 20 September 2012) together with the response of the wife thereto filed 30 July 2012 are transferred to the Sydney Registry of the Family Court of Australia for listing on a date to be fixed by the registrar.
That the application in a case filed by the wife on 2 August 2012 and any response thereto by the husband are dismissed.
IT IS CERTIFIED:
That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel, including senior counsel to attend.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Gerardine & Coulter has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 557 of 2011
| Mr Gerardine |
Applicant
And
| Ms Coulter |
Respondent
REASONS FOR JUDGMENT
On 13 July 2011, final parenting orders were made between the parties in the Federal Magistrates Court. Those orders were made at the request of, and with the consent of, the parties. The matter finalised part of the way through the contested hearing at which both were represented by senior legal practitioners.
A year later, the husband has sought to vary the orders not only in a significant way but on the face it, to re-run the case that he initially presented and wanted to run in the Federal Magistrates Court. However, he also now puts forward an alternative proposal but that would also mean a departure from the existing regime.
The wife strongly opposes any alteration of the 2011 orders and seeks a dismissal of the husband’s application before it proceeds further.
Mr Gerardine (the husband) filed this application for substantive parenting orders on 20 September 2012 but it was Ms Coulter (the wife) who brought an interlocutory application on 2 August 2012 not only opposing the application but also seeking its immediate dismissal on the basis of the principles set out in Rice v Asplund (1979) FLC 90-725. In the alternative, the wife sought orders that if the husband’s application was permitted to proceed, the venue should be changed to the Sydney registry of this Court. That was opposed by the husband who maintained the hearing should remain in Melbourne.
This preliminary issue was listed in the judicial duty list but because of a lack of judicial time, counsel for the parties agreed to have the matter determined on the affidavit material and their written submissions. Accordingly, I have read all of that material and it was helpful.
The orders of 13 July 2011 were made by McGuire FM. They relate to the children S aged 4 and R aged 3. The orders provided for:
·equal shared parental responsibility;
·a 3 week shared parenting cycle;
·a sharing of holidays; and
·changeovers to occur at the Sydney airport.
There were other orders which are not particularly relevant to my determination.
S is soon to commence school in Sydney and the 2011 orders make provision for the husband to be responsible for both children for six consecutive nights once school starts. That obviously makes sense having regard to the Melbourne/Sydney distance to be otherwise travelled.
In 2011, the husband’s application was for the children to live in Melbourne whilst the wife wanted them to live in Sydney. That argument obviously ended when the orders were made.
Since the orders, the exchanges of the children have occurred at the Sydney airport where the husband has collected them and then returned to Melbourne and in due course, returned them to the wife at the Sydney airport.
It is now the husband’s position that he can no longer comply with the 2011 orders particularly because of the impending requirement to care for both children for 6 consecutive nights in Sydney.
The substantive application of the husband now seeks orders that the children live in Melbourne and be educated here. In the alternative, he seeks orders that give him most weekends each month and a significant portion of the school holidays.
The evidence of the parties about how the case ended in July 2011 was put by the husband as having significance. He said that whilst being cross-examined in that proceeding, he told the Court that he would be caring for the children and would not be working when he had them. That led to questions about his ability to travel to Sydney because of what he maintained was his work flexibility. He agreed that he could travel to Sydney. Now, he says that what he meant was that it was only for the short term because S was then in kindergarten. He said the arrangement he was referring to could not continue in the long term given his work commitments. He concluded by saying that it had not been his case that he could not work for nine out of ten working days for the entire children’s childhood.
In his affidavit, the husband set out the conversations he had with his then lawyers during a break in his cross-examination. It was to the effect that, given his evidence, their view was that his case for the children to remain in Melbourne with him was not going to succeed. He said he was pressured to settle and did so in the terms of what are now the 2011 orders.
The husband’s evidence now is that he runs a business with another person in Melbourne. It is a large and growing operation. Having regard to his financial commitment and dependency upon the business, he could not afford to pull out of it. That being so, he sought to alter the parenting orders so that the children live in Melbourne on a week-about basis. He then said that if unsuccessful in respect of that proposal, he would seek the alternative mentioned earlier which would also be a significant shift from the present arrangements.
The wife’s affidavit referred to the 2011 proceedings and how she had since set up her life in Sydney. She sought the husband’s application be dismissed at this preliminary stage and failing that, if a dispute had to be litigated, it should be in Sydney.
The written submissions of the wife can be summarised as follows:
·The applicable legal position is that in each individual case, the Court needs to decide whether it should embark upon another hearing taking into account the past circumstances of the parties including:
(i)the reasons for the orders;
(ii)whether there is a likelihood of the orders being varied in a significant way upon a new hearing; and
(iii)the nature of any likely changes which must be weighed against the potential detriment to the children by the litigation;
·The consent orders had to be considered in the light of the legal advice at that time and the fact that the orders, albeit by consent, were made by the Court (and hence, were deemed to be in the best interests of the children);
·The husband had not adduced any evidence of a significant change of circumstance since the orders nor material which would be likely to result in a material change in the orders;
·No or no sufficient foundation was advanced by the husband to warrant inflicting further litigation on the children;
·Even if the husband was pressured into consenting to the orders, it did not implicitly constitute a new or changed circumstance.
The submission set out criticisms of the husband about the approach that he took leading up to the making of the orders. Those do not affect my determination for the reasons below.
The written submissions of the husband in response pointed to the husband’s evidence about his inability to carry out the 2011 orders. It was submitted that the husband could not comply with them. Thus, it was submitted, there was shown to be a significant change of circumstances and it would be unsafe to determine this preliminary matter on the papers. The submission said that to determine the issue, the Court needed to have evidence and a family report.
In SPS and PLS [2008] FamCAFC 16, (2008) FLC 93-363, Warnick, J referred to how a court should deal with the problem of a judge being unable to determine whether sufficient change of circumstances had occurred on the papers. His Honour’s decision was referred to at length by the Full Court in Miller and Harrington [2008] FamCAFC 150. It is clear that no hard and fast rule can be applied but there must be evidence that justifies a reconsideration of the extant orders. Bearing in mind that any such matter would be determined on the balance of probabilities, the Court needs to be satisfied that it would probably alter the orders on the basis of the evidence to be led.
In this case, much has been said about why the orders were made but I find even on the husband’s evidence, he cannot (or will not) continue with the existing orders. Even justifying criticism of the husband for what he led the wife (and possibly the Court) to think in 2011, there is a need to review these orders but it is also important to remember that those orders may not ultimately be in the terms proposed by either party.
On the assumption that it was in the best interests of the children for the orders to be made in July 2011 with both parents having a significant involvement in the lives of their children, having regard to the matters set out in s 60B of the Family Law Act 1975 (Cth) (“the Act”), the changes foreshadowed by the husband, if his evidence is accepted, warrant at least a reconsideration of the extant orders.
Having said that, Senior Counsel for the wife submitted that the matter should be determined as set out by the Full Court in Miller (supra). A careful examination of what follows indicates that these were clearly guidelines. The Full Court said (at para 72 and thereafter):
It may be, however, that neither the expressions “summary dismissal” or “striking out” is the best term to describe the procedure when, in a parenting case, the rule in Rice and Asplund is considered at a preliminary stage. This is because, as we seek to emphasise, at whatever stage the rule in Rice and Asplund is applied, the court is bound to take into account best interests considerations and also because specific requirements, including legislative requirements, apply.
The application of the rule occurs within proceedings to which the provisions of Division 12A of Part VII of the Act apply. More specifically, the application of the rule occurs as part of “child-related proceedings” within the meaning of s 69ZM. Accordingly, the court hearing argument as to the application of the rule at a preliminary stage is bound to apply the provisions of Division 12A of the Act.
Included among the mandatory requirements upon a court are: the obligations to (as seen) “decide which of the issues in the proceedings require full investigation and which may be disposed of summarily” (s 69ZQ(1)(a)) and to “deal with as many aspects of the matter as it can on a single occasion” (s 69ZQ(1)(g)).
The provisions of s 69ZR(1), empower the court to “make a finding of fact in relation to the proceedings”, to “determine a matter arising out of the proceedings” and to “make an order in relation to an issue arising out of the proceedings” if the court considers that “it may assist in the determination of the proceedings”. The section goes on to provide (s 69ZR(2)) that the court may do any of the matters mentioned “... at the same time as making final orders”.
The terms of s 69ZN of the Act, which set out the “principles for conducting child-related proceedings” also apply to a hearing in which the rule in Rice and Asplund is applied at a preliminary stage. In particular, s 69ZN(3) …… provide(s):
(3)The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.
Section 69ZN(4) also requires the court to actively direct, control and manage the conduct of the proceedings. In my view, that is a very important consideration where, as here, the husband wishes to re-litigate after a matter has ended. Division 12A enables a court to determine whether a particular issue may be litigated. In the husband’s situation, that court may decide that the husband’s present primary position should not be permitted to be litigated or it could truncate the hearing such as to decide whether there is and if so, what appropriate alternative to the husband’s “fall back” position, if satisfied that the existing orders will no longer work.
There is therefore ample legislative scope for the application of the Rice v Asplund principles. The question is when should that be applied?
In Mann & Prewett [2009] FamCA 929, Fowler J said:
Continued dispute about a child is a significant detriment to her welfare. Equally, it is not in a child’s interests that her parents be encouraged to engage in multiple litigation in this Court. Parties to marriage relationships who enter into consent orders (which in themselves are seen as an advantage to children) are entitled to hold the not unreasonable belief that as orders of the Court they will be complied with. In addition, there ought to be a reasonable expectation that an agreement once made will be complied with. That fulfilment of those reasonably held beliefs should be supported in the interests of encouraging what is a clear policy of the Court to encourage parties to come to parenting agreements which will not lightly be set aside. They ought to be encouraged for the benefit of all children but also for particularly the benefit of this child. To do otherwise would be to wreak continuing havoc upon children.
Senior Counsel for the wife relied upon that passage but there is a further sentence which I consider is important and relevant to this application. It read:
Having said that, it is also clear that the Court must not hesitate to permit a matter to be re-litigated where it can see clear reasons in the interests of the child to do so.
I agree with his Honour and would add that parenting arrangements (not just orders) often need to be altered to suit the many changes in the lives of children as well as parents. Where changes to a parent’s life and hence their parenting roles are possibly going to impact on children, a summary dismissal of an application should be cautiously approached. There is something to be said for the observation of Kirby J in Lindon v The Commonwealth of Australia (No 2) [1996] HCA 14; (1996) 70 ALJR 541 that even a weak case warrants the attention of a court when considering a summary dismissal application.
In Miller and Harrington (supra), the Full Court also said (at para 82-83):
… the qualitative question of whether a change that has occurred is or is not sufficiently significant to justify a full further hearing of a parenting issue may be one much more difficult to answer in a preliminary hearing involving resolution of only some disputed facts.
This observation may be behind the approach that either the case of the applicant for parenting orders is, at a preliminary stage, taken at its highest, or the hearing embarked upon is an enquiry into all matters relating to the best interests of the child or children.
In my view, there is evidence that the existing orders cannot (or will not) be carried out and an alteration to them will affect the relationship of parent and child. The appropriate time for the consideration of whether the case should proceed and on what basis, having regard to s 69ZN, is at the first day of hearing before a judge as described in Rule 16.08 of the Family Law Rules 2004 (in whatever form that hearing may take).
It follows that the wife’s application for a dismissal of the husband’s substantive application cannot succeed.
The wife then sought a change of court venue. The husband filed an affidavit by his solicitor which showed that inquiries of the Sydney Registry meant that a hearing might be possible in 2013. Melbourne’s registry staff did not give any similar indication. I am mindful however that in respect of both registries, rule 12.10A is available.
The husband’s evidence was that the venue may depend upon whether the wife wanted to cross examine the husband’s former lawyers. That too depends upon whether the judge exercising the powers mentioned above, permits it. The husband otherwise referred to the fact that the previous family report writer was Melbourne-based and the children were often in Melbourne.
The wife’s submission was that the balance of convenience favoured Sydney because the children resided there and the husband had superior financial capacity.
A venue application should be determined within the framework of rules 11.17 and 11.18. Those provide discretionary considerations. In my view, there is no public interest issue here. The husband’s financial strength is an issue that would enable him to bear the cost more so than the wife. He has consistently travelled to and from Sydney and it would seem that finances were not an issue. With the children living predominantly in Sydney and it being the place where the 2011 orders expected they would be schooled, Sydney is the most convenient place. Whilst Mr P is in Melbourne, there are presumably other witnesses who would also need to be considered about how the children have settled in Sydney and whether a change of that environment was or was not good for them. In relation to the husband’s primary substantive point, there is also the issue of whether the law permits the Court to force a parent to change residence.
Another consideration is the complexity of the facts, legal issues, remedies and procedures involved. It is hard to see how I can make any determination on that having regard to the matters above. I do not see this as a complex case and presumably in 2011 neither did the parties. It was litigated in the Federal Magistrates Court and even on the basis that the husband desires to run the same principal argument again, nothing I have read would suggest this is unusually complicated. However, that is a matter that the parties can put before a judge in relation to the Rice v Asplund issue.
The resources of the Court will be a factor in either registry so that ought not be the determining factor. Whilst taking into account the wishes of the parties, the balance of convenience favours the wife. The matter should accordingly be transferred to Sydney.
I certify that the preceding Thirty Five (35) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 14 January 2013.
Associate:
Date: 14 January 2013
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