Gough and Apostolou

[2013] FamCA 249

FAMILY COURT OF AUSTRALIA

GOUGH & APOSTOLOU [2013] FamCA 249

FAMILY LAW – CHILDREN – Change of circumstances - Rice & Asplund (1979) FLC 90-725 test – mother’s application to vary previous parenting orders dismissed – where the mother could not substantiate a change of circumstances or undisclosed matter justifying the reopening of the parenting case – where the mother’s proposed parenting regime represented a more convenient alternative to the mother, not one that was in the best interests of the children – where consent orders were made less than two years prior – where the mother had relocated to the United States of America and this was anticipated by the Consent Orders.

Family Law Act 1975 (Cth)

King & Finneran (2001) FLC 93-079
Rice & Asplund (1979) FLC 90-725

APPLICANT: Ms Gough

RESPONDENT: Mr Apostolou

FILE NUMBER: NCC 2317 of 2010

DATE DELIVERED: 28 March 2013

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE:

27 March 2013

Ex tempore

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Boyd Olsen Lawyers

COUNSEL FOR THE RESPONDENT: Mr C Boyd

SOLICITOR FOR THE RESPONDENT: O’Hearn Lawyers

Orders

1. That the Application for Final Orders filed by the Mother on 18 December 2012 is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Gough & Apostolou 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 NEWCASTLE

FILE NUMBER: NCC2317 of 2012

Ms Gough

Applicant

And

Mr Apostolou

Respondent

REASONS FOR JUDGMENT

Introduction 

1. In this matter, the parties are the parents of two children, B aged almost nine and C aged six.  On 19 September 2011 final parenting consent orders were made on the first day of a final hearing set for four days.  Fifteen months later, on 18 December 2012, the mother filed an application for discharge of those orders and proposed final orders on a similar basis.  The reasons for differences are the basis for the argument of change in circumstance.  The father filed a response on 9 January 2013 seeking dismissal of the application.  The father seeks no changes to the orders which I will refer to as the 2011 Orders.    

2. A Judge has a discretion whether or not to deal with issues of sufficient change of circumstances at a threshold level, or to embark on a full hearing.  The short hearing today is for submissions on the application of the principle in Rice & Asplund (1979) FLC 90-725. Those principles are:

   (1)That the Court should not lightly entertain an application to reverse an earlier custody order. A Court would need to be satisfied by the applicant for fresh orders that:

   (i)there was some changed circumstance which would justify such a serious step;

   (ii)that there was a new factor arising;  or at any rate

   (iii)some factor which was not disclosed at the previous hearing which would have been material.

3. The use of the word “custody” when that case was heard in 1978 referred effectively to residence.  In my view, there is at least the same if not a higher onus to justify a further hearing when the orders sought to be changed are something of less significance to children than a change of residence.

4. Given the opposition of the father to this application, with no changes sought by him and the relatively short time since final orders were made by consent, the matter was listed for submissions on the threshold issue on 27 March 2013. 

5. The material relied on by the mother was her affidavit sworn 17 December 2012 and filed 18 December 2012.  The basis for the application is thoroughly set out in that affidavit.  The mother says this[1]: 

   Since their implementation (the September 2011 orders) there have been various problems with the orders and I am seeking to make changes to rectify these problems.  I acknowledge that some of the changes may seem very minor but they are important to me given the distance between the children and me and the limited amount of personal contact I have with them.

   [1] Affidavit of Ms Gough sworn 17/12/2012, para 6

6. At the time the orders were made, the mother had sought to relocate the children to the United States of America.  Ultimately, the parties agreed that once the mother herself moved to live in America, the children would live with the father.

7. The mother now lives in the United States of America with her American husband.

8. The mother sets out the attempts she had made to effect changes to the orders[2].  She had her solicitor write proposing amendments to various orders, invited the father to attend private mediation and ultimately contacted the Family Relationships advice line.

   [2]  Affidavit of Ms Gough sworn 17/12/2012, paras 8 to 24 inclusive

9. On 25 October 2012, the parties had a mediation through the Family Relationship advice line.  A section 60I certificate issued confirming that no agreement had been reached.  I accept that the mother made these efforts to engage with the father in an attempt to persuade him to the changes in the orders she proposed.  The balance of the mother’s affidavit re-numbered from paragraphs 1 to 98 gives a detailed account of why the mother has sought the changes she has.  In summary, they are as follows:

(a)     A discharge of the 2011 orders with fresh orders in similar terms          other than as follows:

1. The father presently has sole parental responsibility for education.  Parental responsibility is to be otherwise shared equally.  The mother proposes equal shared parental responsibility on all issues including education. 

2. The basis for this change is said to be that the mother likes to be involved in the school and the mother had been notified about C’s behavioural problems at school by one of his teachers in an email to the mother.  C has just turned six. 

3. In the family report of May 2011 prepared for the final hearing[3], there are observations of C and the prediction that if C was to be separated from his father for an extended period of time, there would be a negative impact on his emotional and psychological wellbeing and that C would have to deal with feelings of grief and loss, as well as feelings of abandonment.

   [3]  Family Report of Ms D dated 09/03/2011, paras 112 to 117 inclusive

4. The matter was resolved on the basis that the children would remain living in Australia and the mother would relocate to living in America, returning to see them whenever she could and having the children with her for holidays twice a year.  It would have been predictable to the parties that C would also have some emotional adjustment to make when faced with separation from his mother for extended periods of time.

5. The decision was taken by the parents for the children to live with their father and for him to have sole parental responsibility for their education, no doubt on the basis that he would be the parent on the spot able to engage with the school on an emergency and short term basis, able to make decisions when needed.

6. That is not to say that the mother does not take an interest in the children’s education, she does, but the very matters that are outlined in her affidavit are examples of what the parents were probably trying to avoid, that is, there was electronic communication between a child’s teacher in Australia and the mother in America and then conflict between the parents about how to address what the mother had learned, with the mother not being in a position to come into the school without the father to discuss it.  This is the very problem that is addressed by parental responsibility for a specific issue.

(b)    Mother proposes an increase in holiday time at Christmas from 28 nights to 32 nights

1. The stated reason for the mother for this change in her affidavit is the difference the change would make to travel costs and the amount of time the children would spend with the mother.  There was no focus on the fact that from the children’s perspective, it would reduce the amount of time they spent in their local community, not only with their family, but also friends to less than a week, so from 26 December to the day prior to school commencing in one year and from the last day of school for a period of 32 nights in the next.   

2. The mother also proposed a change from six weeks notice to the father of her contemplated travel plans for the children, to seven days.  This was said to be for greater flexibility.  This can only relate to greater flexibility for the mother and would introduce considerable uncertainty in the father’s household and the plans and arrangements he would make for the children, in the event that they were not travelling at the predicted times. 

(c)    Proposed change from the certainty of Sydney airport to the term “Departure Airport” 

1. This too introduces an element of uncertainty for the children.

(d)    Proposal to closely define that unknown period of time when the mother might be able to be in Australia in addition to defined times 

1. Orders 3.3 to 3.8 inclusive of the 2011 Orders set out the arrangements for the children to spend time with their mother in America and Australia.  Holiday periods, mid year and Christmas time are defined.  They also set out the arrangements for the mother to spend definite time in Australia in the periods at the end of term 1 and term 3.  There is then 3.8(d) which says this:

   3.8(d)Otherwise as may be agreed between the parties from time to time in the event that the Mother travels to Australia at any other time, provided that:

   (i)the children’s time with the Mother occurs outside of their school hours;

   (ii)when the Mother is spending time with the children during the school term she shall ensure that the children attend any extra-curricular activities that fall during that time.

2. The mother in her affidavit complains that when she returned to Australia on

   
   

   16 July 2012, having emailed the father previously to put a proposal that the children spend every Wednesday evening and every weekend with her, the father did not agree.  Some lesser amount of time was provided. 

3. The mother wishes to define those unknown periods of time which might occur in the future when she is here.  Again, there is no particular focus on the impact on the children of such a provision which has the capacity to raise expectations of more time with the mother and also has the ability to completely disrupt the father’s household in terms of the plans that he might have in place during periods of time when the mother was able to be in Australia unexpectedly.

(e)    A re-definition of the arrangements for Skype in a slightly different way

1. The affidavit of the mother suggests that in her view the father should simply agree to both parties being connected to Skype at all times, such that the children can contact their mother at any time and the mother could contact them at any reasonable time.  The older child B is already struggling with the amount of time which does take place and it was clearly contemplated that there would sometimes be difficulties with Skype, both technical and emotional.  Re-defining the orders has the ability to increase pressure on the children and I note with concern, this exchange reported by the mother between herself and the children[4]:

   On several occasions [B] and [C] have wanted to Skype but stated ‘Daddy will not let us Skype outside of Skype time’.  I say to them, ‘Oh yes he will, just ask him’.

   They say ‘no he won’t, it is not Skype time’.

   [4]  Affidavit of Ms Gough sworn 17/12/2012, para 76

2. This pressure directly on the children to be a conduit for messages about additional time outside the orders is not child focused.  The mother’s complaint that many times during Skype calls the children are playing on the floor with their toys or will “take off to get something” is also not particularly child focused.  The Skype time is for the benefit of the children.  The mother also reports that “[B] has not been good about coming to Skype”. 

3. Both children had received counselling prior to the hearing when the matter was resolved by consent.  The reason for it was the adverse impact on the children of the high level of conflict between their parents over their separation, aggravated by uncertainty whether the mother would relocate to the United States, whether the children would go with her and how the children would spend time with each parent in whichever country they lived.  Similarly to C, it was anticipated that B would experience grief and loss[5]: 

   [B’s] behavioural history would seem to indicate that she would suffer a degree of trauma as a result of the parental conflict and due to her perceived abandonment by the mother during her periodic absences from [B’s] life.  While [B’s] current behaviour would seem to indicate that she is getting better at coping with these absences, it is uncertain as to how she would cope with being taken out of her familiar setting and with the loss of her father and other family members and friends. 

   [5]   Family Report of Ms D dated 09/03/2011, para 111

4. The family consultant feels that given B’s history:

   She would not cope very well at all.  Similarly, should the mother decide to relocate to America without the children, [B] would undoubtedly go through a process of grief and loss and her feelings of abandonment would resurface and would be very likely to have a long term negative effect on her future emotional and psychological wellbeing. 

5. In the sense that these observations of the family consultant were a prediction, it appears to be confirmed by B’s difficulties with talking to her mother on Skype.  Redefining the orders to any extent is unlikely to assist either of the children, particularly B. 

(f)     Mother seeks new order that at any time the children are to stay overnight with her, the father is to pack a bag with sufficient clothes, shoes and toiletries necessary for the period.  

1. It could hardly be the case that the parties did not contemplate that the children would regularly be travelling and that each parent would carry responsibility for clothing and providing for the children with weather appropriate clothes, shoes and toiletries.  To use the words of Collier J in King & Finneran (2001) FLC 93-079 at [44]:

   To apply the test in Rice v Asplund (above) is to make an assessment on the material available to the Court as to whether or not the matters raised in this material make it necessary or proper in the best interests of the children, the subject of litigation, to allow further proceedings.  In arriving at such a decision, the Court will give consideration to the importance or seriousness of the issues raised, both individually and where necessary collectively, and the impact that they may have on the children.

2. I consider that the matters raised are not important or serious from the perspective of the children and at their height, go to greater convenience for and enjoyment of the children’s company by the mother.

3. The second part of the consideration is the impact on the children and it is on this point that I accept the submission of counsel for the father that re-litigating to any extent, is likely to have an adverse effect on the children, who were already seriously impacted by their parents’ conflict prior to the consent orders being entered into.  It is reasonable to assume that their parents entered into the consent orders they did, in an attempt to relieve the children of the loyalty conflicts they were experiencing between their parents.  It could not have been easy for either of them to contemplate the future.

4. The Court has also had the benefit of a current Memorandum from the Family consultant who prepared the final family report.  Ms D identifies in that Memorandum that the issue of parental responsibility had existed prior to the consent orders being made in her observation of the parties and their discussions, and that likewise issues around the children spending time with the maternal grandparents by order rather than consensual arrangement, had also been a live issue for the parents.

5. All of the issues raised in the application of the mother in my view, could have been canvassed in the 2011 final hearing and were in contemplation at the time when consent orders were made, which is reflected in the very detailed nature of those orders. 

6. Both parties were represented by experienced counsel.  Of course, other orders could have been made which might suit either or both parties more.  That is not the point.

7. For those reasons, I easily conclude that there is no changed circumstance, or previously undisclosed matter, which would justify a further hearing of parenting issues in this matter to any extent.  Indeed, in keeping the interests of the children in mind, the finality of the orders should be respected.  The parties should understand that they are free to agree to other arrangements, but in the event they do not agree, then, without criticism of whichever parent who does not agree to change, the orders apply.  The orders are there to provide certainty for the parties and the children and relieve the pressures of litigation.

8. I make orders accordingly.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 28 March 2013.

Associate:

Date:  16 April 2013.