HARVEY & HARVEY
[2020] FamCA 1101
FAMILY COURT OF AUSTRALIA
| HARVEY & HARVEY | [2020] FamCA 1101 |
| FAMILY LAW – CHILDREN – Rice & Asplund threshold hearing – previous final parenting orders made by consent –Where the father seeks to re-open proceedings and to have new parenting order made including affording him sole parental responsibility for one of the children - Where the father failed to establish that there had been any material change in circumstances pursuant to the principles in Rice & Asplund (1979) FLC 90-725 – Application dismissed. |
| Family Law Act 1975 (Cth) |
| Carriel & Lendrum (2015) FLC 93-640 Poisat & Poisat [2014] FamCAFC 128 Rice & Asplund (1979) FLC 90-725 |
| APPLICANT: | Mr Harvey |
| RESPONDENT: | Ms Harvey |
| FILE NUMBER: | MLC | 2362 | of | 2014 |
| DATE DELIVERED: | 14 December 2020 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | McEvoy J |
| HEARING DATE: | 14 December 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Self represented |
| SOLICITOR FOR THE APPLICANT: | Self represented |
| COUNSEL FOR THE RESPONDENT: | Self represented |
| SOLICITOR FOR THE RESPONDENT: | Self represented |
Orders
All extant applications be dismissed.
Any further applications made by either party are first to be listed before the Senior Registrar for consideration.
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 Harvey & Harvey 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 MELBOURNE |
FILE NUMBER: MLC 2362 of 2014
| Mr Harvey |
Applicant
And
| Ms Harvey |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Introduction
By an application in a case dated 29 October 2020 the applicant father (“the father”) seeks the following orders (using the numbering contained in that application):
0.Review of Orders made 30-Sep-2020, Registrar Duty List, Senior Registrar Hoult.
1.That the Applicant have sole parental responsibility for the Child F.
2.The child F spend time and communicate with the father as follows:
(a)During school term periods:
(i) each alternate Thursday from the conclusion of school (or from after school care) until the commencement of school on Friday (or 3.30pm in the event such Friday is a non-school day);
(ii) each alternate weekend from the conclusion of school (or 3.30pm in the event such Friday is a non-school day) until the commencement of school on Monday (or the commencement of school (or 9.00am) on Tuesday in the event the Monday is a non-school day);
(b)For one half of each of the school term holidays (being the Term 1, 2, and 3 holidays) and the long summer holidays as may be agreed in writing and failing agreement for the first half in even numbered years (AND it is noted that the 2020/2021 long summer holidays are deemed to fall within even numbered years) and for the second half in odd numbered years (AND it is noted that the 2021/2022 long summer holidays are deemed to fall within odd numbered years);
(c)At Christmas from 4.00pm on Christmas Day until 5.00pm on Boxing Day in odd numbered years;
(d)From 10.00am on Father’s Day until 4.00pm on Father’s Day;
(e)On Melbourne Cup Day from 9.00am until the commencement of school on Wednesday;
(f)On F’s Birthday from 3:30pm until 7:30pm on school days and from 10:00am until 4.00pm on non-school days;
[(f)]On the father’s birthday for a period of 4 hours as may be agreed between the parents in writing; and
(g)At such further or other times as may be agreed between the parents in writing (including via SMS text message).
3.Notwithstanding any other provision within these Orders, the child F shall be in the mother’s care as follows:
(a)For one half of each of the school term holidays (being the Term 1, 2, and 3 holidays) and the long summer holidays as may be agreed in writing and failing agreement for the second half in even numbered years (AND it is noted that the 2020/2021 long summer holidays are deemed to fall within even numbered years) and for the first half in odd numbered years (AND it is noted that the 2021/2022 long summer holidays are deemed to fall within odd numbered years);
(b)At Christmas from 5.00pm on Christmas Eve until 4.00pm on Christmas Day in 2020;
(c)From 10.00am on Mother’s Day until 4.00 pm on Mother’s Day;
(d)At such further or other times as may be agreed between the parents in writing (including via SMS text message).
4.The children D and E spend time and communicate with the father at such times and on such conditions as may be agreed with the father.
5.The parties be at liberty to send letters, cards, and gifts to the children on the occasion of each of their birthdays, at Christmas, on other special days, and otherwise not more than once per month, AND for such purpose the other parent shall facilitate delivery of such items to the addressee.
6.In relation to changeover pursuant to these Orders, save as otherwise agreed in writing between the parents:
(a)where changeover occurs at the commencement and conclusion of school, then it shall occur at school; and
(b)where changeover does not occur at the commencement or conclusion of school, the parents shall collect and deliver the child or children to the McDonalds Restaurant (Suburb Y), unless otherwise agreed in writing between the parents.
7.That during COVID-19 Restrictions, in the advent (sic) that the Applicant gives the Respondent no less than 72 hours’ notice in writing of his ability to provide Remote Learning from home, then Remote Learning shall occur at the Applicant’s home, with handover to occur at the McDonalds Restaurant (Suburb Y) 60 minutes prior to the beginning and 60 minutes following end of the school day, or at a time as agreed between the parties.
8.That the Respondent immediately notify the Childrens’ schools that the Husband is to have full and unrestricted access to all education and and parenting resources, including but not limited to, the collaboration software and that the Respondent be restrained from restricting the Husband’s access to educational and parenting resources, including but not limited to the collaboration software in the future.
9.That pursuant to sec. 70NED of the Family Law Act, the mother forthwith attend participate and complete a Post Separation Parenting Program and send evidence as to the completion of such program or course to the father.
10.That the mother forthwith obtain a referral from their (sic) treating General Practitioner pursuant to a mental health treatment plan for her to attend upon Mr HH (psychologist) for the purpose of therapeutic counselling and aimed at gaining greater insight and understanding with respect to her behaviour and the consequential effects.
11.Any such Orders that this honourable Court deems fair and just.
The father seeks to review the orders made on 30 September 2020 by the Senior Registrar. The Senior Registrar made orders dismissing all extant applications, requiring that any further applications made by either party first be listed before him for consideration, and requiring that the respondent wife serve a sealed copy of the orders that he made on the school of the child, the school being Suburb Q Primary School.
The father seeks to rely on an affidavit of 20 August 2020, an affidavit of 24 August 2020 and an affidavit of 28 September 2020. The mother has not filed any material in answer to the father’s application. The substance of the material filed by the father and upon which he relies today concerns the nature of the time that he has been having with the child during the COVID-19 lockdown period, which has occurred over much of the last year in Victoria. The father is concerned also by the fact that he is being denied access to online school resources and he is desirous of being in a position where he could provide online schooling to the child, in the future should it be necessary for the State to go into further lockdown by reason of COVID-19.
Having regard to these concerns, the father seeks to revisit the consent orders that were made by Registrar Moser on 3 September 2019 to provide that he have sole parental responsibility for the child, F, together with various ancillary orders relating to that and other matters. Those orders that were made on 3 September 2019 by consent by Registrar Moser provided that the mother should have sole parental responsibility, subject to a requirement that she consult with the father, that the children live with the mother, for the child, F, to spend certain time with the father, together with other ancillary orders. As I have said, by this application, the father seeks to disturb the consent position reached between the parties which was the subject of those orders of Registrar Moser on 3 September 2019.
The principles by reference to which the Court considers application for final parenting orders are well known. They were stated by the Full Court in Rice & Asplund (1979) FLC 90-725 (Evatt CJ, Pawley and Fogarty JJ). They are, relevantly, as follows:
…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 earlier 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 applicant that, to quote Barber J, there is some changed circumstance which will 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… These are not necessarily matters for a preliminary submission, but they are matters that the judge should consider in his reasons for decision. It is a question of finding that there are circumstances which require the court to consider afresh how the welfare of the child should best be served. These principles apply whether the original order is made by consent or after a contested hearing.
The Full Court went on to say that:
Once the court is satisfied that there is a new factor or a change in circumstances, then the issue of custody is to be determined in the ordinary way.
See also Carriel & Lendrum (2015) FLC 93-640, Poisat & Poisat [2014] FamCAFC 128.
In the circumstances deposed to by the father in his various affidavits I am not satisfied that there are changed circumstances which would justify a step as serious as, in effect, setting aside the September 2019 consent orders insofar as they apply to the parties’ son, F. I say this having regard to the concerns that the father has expressed in relation to his access to online school resources but bearing in mind also the mother’s evidence insofar as she has articulated it today that the father has utilised material which has been available to him by way of the collaboration software access to bombard her with various allegations in relation to her exercise of sole parental responsibility.
Accordingly, I will make the orders set out at the commencement of these reasons.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McEvoy delivered on 14 December 2020.
Associate:
Date: 12 March 2021
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