Gustz and Denniston

[2018] FamCA 656

FAMILY COURT OF AUSTRALIA

GUSTZ & DENNISTON [2018] FamCA 656

FAMILY LAW – CHILDREN – Parenting – application to vary interim orders – application for shared parental responsibility - assertion that child is unsettled in current arrangements – Rice & Asplund determination - where no change in circumstances demonstrated – where change to existing orders not in child’s best interests – application refused.

Family Law Act 1975 (Cth)

Marsden & Winch [2009] FamCAFC 152
Moose & Moose [2008] FamCAFC 108
Rice & Asplund (1979) FLC 90-725
Zabaneh, In the Marriage of (1986) 11 Fam LR 167

APPLICANT: Ms Gustz

RESPONDENT: Ms Denniston

FILE NUMBER: CAC 1096 of 2017

DATE DELIVERED: 14 August 2018

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 13 August 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Self-representing

SOLICITOR FOR THE RESPONDENT: Farrar Gesini Dunn

Orders

IT IS ORDERED THAT

1. The application of Ms Gustz filed on 25 May 2018 is dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Gustz & Denniston has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 1096 of 2017

Ms Gustz

Applicant

And

Ms Denniston

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. Previous orders were made on 1 August 2017 regarding B (the child), who was born in 2015.  Those orders were made in the face of proceedings which were split to deal with the issue of whether Ms Gustz is a parent of the child.  There is no dispute about Ms Denniston being a parent.  The parties are awaiting judgment on that issue. 

2. Those previous orders generally provided that Ms Gustz is a person concerned with the care, welfare and development of the child.  They provided that Ms Gustz would spend time with the child overnight each Tuesday and overnight each second Friday.  In general terms, Ms Gustz now seeks an order for equal shared parental responsibility, that the child spend time with her each Tuesday through to Thursday and alternate weekends, Friday through to Sunday (that is, a 6/8 split across a fortnight) various holiday and special occasions orders, face time and other orders concerning changeover, medical issues and an Expert's Report. 

3. Ms Denniston seeks that the application be dismissed. 

4. The previous orders made in August 2017 were contested.  It was acknowledged then that the matter may need to return for further interim consideration that is, it was acknowledged that the orders were temporary.  At that point it was noted that there were difficulties in cooperation between the parties.  There were also outstanding questions, which could not be resolved, of family violence.  The orders were put into place in particular so as not to erode Ms Gustz's position in the child's life, that is, the orders were crafted so that her position with the child would not be marginalised.  Because of the polarised relationship between the parties and the unresolved issues of family violence the orders were also crafted to separate the parties by a reduction in the frequency of the time that Ms Gustz would spend with the child and therefore a reduction in interaction between the parties, with a corresponding reduction in the child being a part of the battleground between the two parties.  That is, the orders were to balance the preservation of the relationship between Ms Gustz and the child, but also to minimise their interaction and conflict. 

5. The justification for the change in orders put forward by Ms Gustz was an assertion that Ms Denniston undermines her relationship with the child and an assertion that the child is unsettled in the current arrangements, and that the new arrangements would give predictability to combat that unsettledness by giving longer periods of time with Ms Gustz.  It was also asserted by Ms Gustz that this would not involve an increase in any contact between the parties.

6. In relation to her application for parental responsibility Ms Gustz put forward two matters, saying that she would like to be included in decisions being made for the child and noting that the child, who is now three years old, was a little closer to school time, that being a pending decision that is an aspect of parental responsibility.

7. In relation to parental responsibility, Ms Gustz identified no significant change in circumstances.  There still remains the underlying hostility that would undermine sharing of parental responsibility.  In fact, if anything, that has worsened.

8. Regarding the proposed change in time, Ms Gustz says the child is unsettled at times.  She gives two examples of the Mother undermining, or potentially undermining, her relationship with the child via negative comments that Ms Gustz alleges were made by the child and could in turn reveal negative comments made to him regarding Ms Gustz by Ms Denniston. 

9. The changes proposed by Ms Gustz are opposed by Ms Denniston.  One reason, she says, is that the parties are still awaiting a determination regarding parentage, which may have a significant impact on the ultimate outcome of the case.  She notes also that Ms Gustz already has time with the child and that the application is looking at a significant change to almost equal time, while she also notes that the parties remain poor in their communication. 

10. An initial question arises as to whether the matters raised in consideration of the child's best interests require a fresh consideration of the orders.  The context in which this arises is the parties have so far only had an interim hearing, which was acknowledged to put in place a temporary resolution, which might in turn require revisiting. One year has passed since then.  However, at the time those orders were made they were balanced, in particular, in consideration of maintaining the relationship between Ms Gustz and the child, and also seeking to reduce the exposure of the child to conflict between Ms Gustz and Ms Denniston.  A reconsideration of orders may be demanded or required where there is a change in circumstances.  For example, a change in the attitudes of the parties, or a change in the needs of the children, such as to require a reconsideration (see Inthe Marriage of Zabaneh (1986) 11 Fam LR 167 at 172 as approved in Marsden & Winch [2009] FamCAFC 152).

11. The test against a reconsideration was also set out in Marsden & Winch which indicated that past circumstances and the reasons for decision should be examined, the likelihood of variation on a new hearing should be examined and the nature of the change that has been articulated as against the burden of further litigation should also be examined. 

12. It was also acknowledged in Moose & Moose [2008] FamCAFC 108 that the question of whether there should be a reconsideration is not restricted to merely having a preliminary consideration of the changes before a hearing, but is available at the conclusion of the hearing, although the work of Rice & Asplund (1979) FLC 90-725, which articulates the principles in relation to a revisiting of a matter may differ whether or not it is undertaken before or after a hearing. If it is undertaken after a hearing then it does not afford the same protection from the litigation process.

13. Moose also noted that it is still open, or perhaps required, to consider whether sufficient reason has been advanced to depart from previous orders.  Here what is proposed is to deal with an alleged unsettledness by the child.  That is in the context where there is the assertion by Ms Gustz that the time is going well between herself and the child.  There is no cogent basis for, if the child is in truth unsettled, being able to conclude that the change proposed by Ms Gustz would, or even could, resolve that unsettledness.  The evidence led by Ms Gustz does not detract from the rationale that was given for the previous orders that were put in place to preserve her relationship with the child.  On Ms Gustz’s evidence, despite difficulties, the previous orders are doing that. 

14. On the desire for equal shared parental responsibility and participation in decision-making, while it is understandable that Ms Gustz holds that desire, no significant change has been advanced to warrant a reconsideration of that position.  It is particularly so where part of the rationale of the previous orders considered the needs to reduce conflict between the parties.  The sharing of parental responsibility seems likely to result in further conflict, which is centred on the child.  Ms Gustz’s material has emphasised an ongoing hostility that she perceives from Ms Denniston. 

15. Ms Denniston, in her evidence, in particular, of the use of a go pro on the part of Ms Gustz, also infers a high degree of conflict and mistrust between the parties. 

16. Similarly, the changes proposed by Ms Gustz, which would be for almost equal time, would require a greater cooperation on the part of the parties if it was ever going to work well for the child.  The evidence from both parties is suggestive that there are close to nil prospects of cooperation between them at present. 

17. This means that, turning to the rationale to change from the current orders, in the light of the objective of those orders to serve the child's interests, it is insufficient to justify a departure from those orders.  That is, when one looks at why the previous orders were made, in the context in which they were made, the rationale put forward now for a change of the orders is insufficient to justify a revisiting of the matter.

18. Regarding the additional orders sought by Ms Gustz it is premature in the proceedings to deal with an expert's report.  The parties are still awaiting a determination as to parentage, the matter will then require a listing for the substantive determination of matters, whatever the outcome of that determination.  To prepare an expert report at this stage is premature, as there is a likelihood that the expert's report will become stale before the matter would be able to be finalised. 

19. Other matters concerning information sharing regarding medical and other matters and restraints regarding physical discipline are not warranted on the evidence presented, and they are properly within the ambit of Ms Denniston's parental responsibility.  The evidence does not support the use of FaceTime for FaceTime periods between the child and Ms Gustz.  While there may be denigration, the circumstances are too uncertain to warrant a non-denigration order.  There is no evidence to suggest that such an order would be effective to deal with the circumstances faced by the parties. 

20. I note that Ms Gustz sought that the parties attend mediation but did not press that order on the basis that they have done so. 

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 14 August 2018.

Associate: 

Date:  30 August 2018.