HIKMAT & JARMAIN

[2019] FamCA 703

FAMILY COURT OF AUSTRALIA

HIKMAT & JARMAIN [2019] FamCA 703

FAMILY LAW – ENFORCEMENT OF ORDERS – where final orders were made by consent – where the mother seeks enforcement of the final orders and specifically the order requiring the parties to apply for a passport for the child – where the father complied with the orders in relation to the child’s passport during the course of the hearing

FAMILY LAW – PRACTICE AND PROCEDURE – where the father seeks to vary final parenting orders made by consent less than six months ago – consideration of the principles in Rice & Asplund –where there is no significant change in circumstances and the father’s proposal does not change the orders in a significant way to warrant re-litigating– where it is not in the child’s best interests to embark on further litigation – where the application is dismissed –where the mother is seeking costs – where the parties are directed to file and serve written submissions in relation to the issue of costs

Family Law Act 1975 (Cth)
Family Law Rules 2004

Elmi & Munro (2019) FLC 93-912; [2019] FamCAFC 138
Lowe v Lowe (unreported, High Court of Australia, Mason CJ, Dawson and Toohey JJ, 6 April 1990)
Rice and Asplund (1979) FLC 90-725; 6 Fam LR 570; [1978] FamCA 84
Tindall & Saldo (2016) FLC 93-727; [2016] FamCAFC 146

APPLICANT: Ms Hikmat

RESPONDENT: Mr Jarmain

FILE NUMBER: MLC 3873 of 2017

DATE DELIVERED: 2 October 2019

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 11 September 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Kennedy Partners

THE RESPONDENT: In Person

Orders

1. By 4.00 pm on 15 October 2019 the parties file and serve any written submissions in support of any application for costs arising out of or incidental to the mothers Application in a Case filed 8 August 2019 and the father’s Response to an Application in a Case filed 6 September 2019.

2. By 4.00 pm on 30 October 2019 the parties file and serve any written submissions in reply to any applications for costs.

3. The mothers Application in a Case filed 8 August 2019 and the father’s Response to an Application in a Case filed 6 September 2019, save and except for any applications for costs, be otherwise 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 Hikmat & Jarmain 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 3873  of 2017

Ms Hikmat

Applicant

And

Mr Jarmain

Respondent

REASONS FOR JUDGMENT

1. This matter was listed for hearing before me in the Judicial Duty List on 11 September 2019. It had previously been listed for hearing in the Judicial Duty List on 13 August 2019 but was adjourned to enable the father, who was the respondent to the mother’s Application in a Case filed 8 August 2019, to file answering material. He was ordered to file any answering material by 4.00pm on 27 August 2019. Although the father did file answering material, he did not do so until 6 September 2019. No objection was taken to the late filing of that material.

2. The mother in her Application in a Case sought the enforcement of final parenting orders made by consent on 5 April 2019. In particular the mother sought orders with respect to paragraph 29 of those orders which provided as follows:

   29.Both parties forthwith do all such acts and things and sign all documents necessary to:

   29.1Change the child’s name to X HIKMAN-JARMAIN; and

   29.2Apply for a passport for the child.

   and the parties share equally the costs of such applications.

3. Between the hearing before Johns J and the hearing before me, the parties had resolved the issue with respect to the child’s name, however the question of the issue of a passport for the child remained outstanding.

4. At the commencement of the hearing, the father asked to have the matter stood down so that he could seek legal advice from the duty lawyer, ultimately deciding to proceed without that advice. During the course of the hearing the father signed the passport application form which dealt with the relief sought by the mother, save and except for the question of costs.

5. That left the orders sought by the father in his Response to an Application in a Case filed 6 September 2019. Those orders were as follows:

   1.That the Application of the Wife filed on 8 August 2019 be dismissed.

   2.That the parties attend dispute resolution on such terms and conditions as the Court deems appropriate.

   3.That the transfer referred to in paragraph 24.1 of the Orders made on 5 April 2019 be held by an independent person or body nominated by the Court and upon confirmation that the transfer is held by such independent person or body, the Husband shall do all things necessary to sign passport documents in compliance with paragraph 29 of the Orders made on 5 April 2019.

   4.That the passport be held by an independent person or body nominated by the Court.

   5.That the Wife attend a post-separation parenting course at B Group, Melbourne.

   6.Such other or further orders as the Court deems appropriate.  

6. Although, after the hearing before me commenced the father eventually signed the passport application, he continued to agitate his application that the passport and the transfer of land, which the orders required by way of security for any overseas travel, be held by an independent person or body nominated by the Court.

7. Not surprisingly the father’s application was opposed on the basis of the principles or what is often referred to as the “rule” in Rice and Asplund (1979) FLC 90-725 (“Rice & Asplund”). Although it is not a “rule” as such, this principle has been applied by the Full Court in many decisions and over many years. And as referred to in the recent decision of the Full Court in Elmi & Munro (2019) FLC 93-912 approved by the High Court in the unreported decision of Lowe v Lowe (unreported, High Court of Australia, Mason CJ, Dawson and Toohey JJ, 6 April 1990). The principle as enunciated by Evatt CJ at 78,905 is as follows:

   The principles which, in my view, should apply in such 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 and 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 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.

8. In Tindall & Saldo (2016) FLC 93-727 (“Tindall”) the Full Court referring to the genesis of the principle in Rice & Asplund referred to “…the notion that continuous litigation over the child or children is not generally in their interests” and that it is “…usually hoped that the determination of a controversy concerning children by a court will result in at least a reasonable period of stability of those arrangements and freedom from the stressful and conflictual effects of litigation on both parents and children”.

9. It was on this basis that I asked the father to refer me to the paragraphs in his affidavit and make submissions in support of his case. In particular that there had been some changed circumstance that would warrant the Court entertaining his application to vary the final parenting orders made by consent less than six months earlier.  

10. The particular matters the husband referred me to or in relation to which he made submissions were in summary as follows:

    ·That the mother has not complied with the orders with respect to the child spending time with the father;

    ·That when the mother travelled to Queensland in May 2019 she did not comply with paragraph 26 of the final orders and provide him with an itinerary;

    ·That the mother is a flight risk and cannot be trusted as demonstrated by her having already breached the final orders on a number of occasions and in those circumstances the order requiring the passport to be held by the mother’s solicitor does not provide sufficient protection against the mother removing the child from Australia; and  

    ·The father also deposed that he had no faith that the mother’s solicitor would comply with the spirit of the orders.   

11. The mother acknowledges in her affidavit in reply that there were some teething issues with the orders and also deposed that although she thought she had sent the father an email with the itinerary for her trip to Queensland, she realised when it was raised by the father after the trip that it was still in her outbox.  The mother however takes issue with the father’s assertions that she has breached the orders with respect to the child’s time with the father. The evidence has not been tested and in these circumstances I am not in a position to make any findings about these matters.

12. In my view taken at their highest, and even if the Court were to accept the father’s evidence the matters of which he complains,  do not amount to a material change sufficient to warrant the Court permitting him to reopen the parenting proceedings. In so far as the father alleges that the mother is in breach of the orders, there are other remedies available to him which he has not pursued. Even if the Court found that the mother had breached the orders for time, that of itself would not necessarily be a material change and it does not follow that the Court would vary the final orders because of that breach. In my view there would also need to be some link between the alleged breaches and the orders sought to be varied. In this case there is no link other than the father’s assertion that the mother is a flight risk and, based upon her breach of the orders, cannot be trusted. It is also clear that the intent of the orders at the time they were made was to prevent the possibility of the child not being returned to Australia following overseas travel. To that extent, nothing appears to have changed. 

13. In Tindall the Full Court also referred to how the Court should make the decision whether to embark upon another hearing of matters previously the subject of orders when there has been a significant change in circumstances since the orders were made. This included the “…likelihood of orders being varied in a significant way” and if there is such likelihood, the need to weigh up those changes against the potential detriment to the child or children caused by the litigation itself, small changes possibly not having “sufficient benefit to compensate for the disruption caused by significant re-litigation”.

14. Even if there were a significant change, the changes the father proposes, which are essentially in relation to the person who should hold the child’s passport and any transfer of land, would not change the orders in a “significant way” and in my view do not warrant the proceedings being reopened. In all the circumstances, I propose to dismiss the father’s application.  

15. In circumstances where the solicitor for the mother foreshadowed an application for costs, I propose to make directions for the filing of submissions as to any application for costs and will decide that issue on the basis of those submissions.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 2 October 2019 judgment delivered.

Associate: 

Date:  2 October 2019