Hunt and Theophane (No 2)

[2011] FamCA 585

FAMILY COURT OF AUSTRALIA

HUNT & THEOPHANE (NO. 2) [2011] FamCA 585

FAMILY LAW – CHILDREN – where final orders had been made after a defended hearing in December 2010 – consideration as to whether there were changed circumstances to justify a new hearing – where it was not in the best interests of the child to embark upon a new hearing.

Family Law Act 1975 (Cth)

Rice and Asplund (1979) FLC 725
Marsden & Winch (2010) 42 Fam LR 1

APPLICANT: Ms Hunt

RESPONDENT: Mr Theophane

INDEPENDENT CHILDREN’S LAWYER: Mr Todd

FILE NUMBER: CSC 1089 of 2007

DATE DELIVERED: 18 March 2011 (ex tempore) and 27 July 2011

PLACE DELIVERED: Cairns

PLACE HEARD: Cairns

JUDGMENT OF: Watts J

HEARING DATE: 18 March 2011

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Litigant in person

SOLICITOR FOR THE RESPONDENT: Litigant in person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Vandeleur & Todd Solicitors

Orders

(Orders made 18.3.2011)

1. The mother’s amended application filed 4.3.2011 be dismissed.

2. The father’s response filed 7.1.2011 be dismissed.

3. The orders made by Benjamin J on 6 November 2009 be varied in the following ways:

   3.1.Order 4(a)(i) and (ii) be varied by deleting the second and third sentences from both those orders and inserting instead:

   “The mother, or an adult who the child knows nominated by the mother, deliver and pick up the child and the father pick up and deliver the child at the commencement and conclusion of this time.  The changeover is to take place at AA Park.  In the event that the mother wishes for a regular person other than herself to ordinarily do the changeover she can inform the father of that fact.  If there is a change to the person who the mother has told the father will be at changeover, the mother will provide the father with at least 2 hours notice of that change by text message to his mobile phone (…).”

   3.2.Order 11 be varied by deleting that order and inserting:

   11.1 The father, whilst the child is not in his care, will telephone the home of the mother at 6pm on Tuesdays, Thursdays and Saturdays provided that if the mother on any occasion gives the father 2 hours notice by text message, the father will instead telephone the mother’s mobile telephone at those times.  The mother will make the child available and encourage the child to take his telephone call. 

   11.2 The mother, whilst the child is not in her care, will telephone the home of the father at 6pm on the third day and each three days thereafter when X is with her father in any consecutive periods of three days provided that if the father on any occasion gives the mother 2 hours notice by text message, the mother will instead telephone the father’s mobile telephone at those times.  The father will make the child available and encourage the child to take her telephone call. 

4. Any orders that the child physically be with her father are suspended between Wednesday 29 June and Wednesday 6 July 2011.

5. Any telephone communication between the father and the child on Saturday 2 July 2011 be suspended.

IT IS REQUESTED THAT:

1. The Independent Children's Lawyer prepare a calendar (“the calendar”) to the end of 2012 for the parties based on Benjamin J’s orders as varied by me, noting on the calendar any days that the mother shall have telephone contact with the child.

2. In the event either party asserts that the calendar does not reflect what the orders mean, they are to initially communicate their complaint to the Independent Children's Lawyer; who may issue an amended calendar if he agrees with the complaint.  

3. If there is a continuing dispute about the calendar either party or the Independent Children's Lawyer has liberty to relist the matter before me to make a determination about it.

IT IS FURTHER ORDERED THAT:

1. The order appointing the Independent Children's Lawyer be discharged upon the expiration of 28 days.

2. Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders. 

IT IS NOTED that publication of this judgment under the pseudonym Hunt & Theophane is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT CAIRNS

FILE NUMBER: CSC 1089 of 2007

Ms Hunt

Applicant

And

Mr Theophane

Respondent

REASONS FOR JUDGMENT

1. On 18 March 2011 I gave orders and brief reasons for judgment ex tempore. I indicated I would expand on those reasons and I now do so.

2. The parties had a short and tumultuous relationship fraught with serious allegations. The child was born in September 2006 and is now four years old. Final orders were made in this matter on 6 November 2009 for the mother to have sole parental responsibility, for the child to live with the mother and for the child to spend time with the father every second weekend, during the holidays and special occasions.

3. The mother filed an Initiating Application 13 months after final orders were made, on 22 December 2010. She sought to discharge the previous orders and have a new order of supervised time between the father and child. The father also sought to discharge the previous orders in his response, and pursued new orders that the child live with him and have supervised time with the mother.

4. Rice and Asplund (1979) FLC 725 requires some changed circumstance that would justify the serious step of reconsidering a case on its merits, or a significant new matter which was not ventilated or considered on the previous occasion. This is necessary to stem the possibility of endless litigation which is highly detrimental to children, so such a consideration should not be taken lightly.

5. The mother submits that the following matters warrant a reconsideration of the orders:

   5.1.The father failed to return the child on the required day pursuant to orders;

   5.2.The father owes the mother significant child support;

   5.3.The father does not communicate reasonably with the mother;

   5.4.The father “abuses and obsesses over the females in his life”; and

   5.5.The child has disclosed that the father hits her and “Daddy’s house is very smelly and messy” and makes her feel sick.

6. The new evidence the father puts forward to necessitate re-opening the proceedings is that:

   6.1.The mother threw out a gold cross the child was wearing;

   6.2.The mother unilaterally changes orders, for example the location of the changeover;

   6.3.The mother has failed to satisfy orders regarding telephone time and physical time with the father;

   6.4.The mother is not facilitative of his relationship with the child; and

   6.5.The mother has done psychological harm to the child.

7. The relevant passage from Rice v Asplund (1979) FLC 90-725 is well known. The Court in that case said:

   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 …  there is some changed circumstance that 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. The law that I am to apply is conveniently discussed by the Full Court in Marsden & Winch (2010) 42 Fam LR 1 at paragraphs 40 to 56.

9. Benjamin J heard the case for two days.  I have heard the case again for one day, simply to establish whether or not I should rehear the case. 

10. The circumstances in which the child did not see her father for two months earlier this year are fully set out in the papers.  That is a very unfortunate circumstance.  The mother has given an explanation as to why it happened.  She said in Court she understands, notwithstanding her fears, that it is the court's view that the child’s time with her father has to continue.  However, that fact alone is not of itself a reason to revisit the detailed findings Benjamin J made in November 2009.

11. The father makes the point that because the child did not see him for a couple of months, her religious education was interfered with, and he lays that very squarely on the mother.  I do not put a great deal of weight on that.  A child at the age of four is not going to have her religious upbringing shattered because she has not gone to church on four or five occasions, especially in circumstances where the mother has indicated she has continued to have some exposure to religious teachings and the father's religion during that period of time.

12. I do not accept that, on the orders, the mother has been involved in a chronic systemic breach of orders.  If the father had been able to establish a chronic systemic breach of orders then, maybe, that might have been grounds for reviewing the overall arrangements, but that is not what has occurred.

13. I do not accept, as the father has invited me to, that the evidence given by the mother and her fiancé about what the child is saying shows that they were coaching the child to say what she said. I take at face value that the child was repeating words that she heard in her father’s household. I am not convinced that statements made by a four year old in the circumstances described by Mr M and Mr S, indicate anything like what the father asserts they indicate.

14. I understand that there may still be some ill will from the father in relation to monies that are still being claimed as a result of some de facto relationship proceedings between the parents.

15. The Independent Children’s Lawyer submits that the new information provided by the parties does not justify a reopening the case, as further high conflict litigation would not be in the child’s best interests. I accept the Independent Children's Lawyer's analysis of that evidence and his submissions in relation to why that evidence does not reach the threshold test in that:

    15.1.The high conflict nature of the parties’ relationship, and the unreasonable nature of communication between them has existed for a long time;

    15.2.The disputes over changes to arrangements is also nothing new;

    15.3.The child support debt is a matter to pursue with the Child Support Agency;

    15.4.The father’s history of domestic violence was ventilated at the substantive hearing;

    15.5.The changing nature of the father’s relationship with his girlfriend is not significant;

    15.6.Allegations against the father lack evidence and do not warrant the change the mother proposes;

    15.7.The child’s behaviour at changeover is not surprising given the high conflict between the parties;

    15.8.The parties’ religious beliefs were ventilated at trial; and

    15.9.Proper preparation for a further hearing would take several months and would only serve to further extend the high conflict dispute.

16. I accept that the matters raised by the father in contending for a reopening of the litigation very much exemplify the conflict that Benjamin J talked about and if anything, the conflict has worsened.  Benjamin J described this as a high conflict case, with the communication style of both parties as confrontational.  Neither parent has a real insight into the impact the conflict has on the child. 

17. Unfortunately the father, during the day I heard evidence on the Rice v Asplund issue, embarked, particularly in his submissions, on a character assassination of the mother which, on the material that I have before me, is entirely unwarranted.  That is very unfortunate because, as the mother tried to explain to the father at the end of the proceeding, that type of behaviour is incredibly damaging to the future ability of the parties to work together as the child’s parents in the future. 

18. When I made any ex tempore comments on 18 March 2011 I tried to emphasise to the parents that unless over time they could find some way to work together as parents, even though it was clear they did not like one another, then unfortunately their little girl, as she grows into adolescence, is very likely to have serious psychological problems.  I told the parents that if she grows up knowing that her parents cannot talk to one another about her, about what is good for her, then it is likely she will end up psychologically damaged. I said I did not expect the parents to be able to change tomorrow, or next week, or next month, but they needed for the sake of their daughter, to get to a point where they were able to function as parents. I acknowledged it may be or may not be possible but that I hoped for the child’s sake it was.

19. The matters that both the mother and the father have drawn to my attention as being matters that concern them, in my view, fall well short of the types of matters that would lead me to conclude that there has been a substantial and significant change of circumstances from those that were presented to Benjamin J in only November 2009. 

20. I find there is no evidence before the court upon which I could be satisfied that there is some change of circumstance which would justify the serious step of allowing this war to reignite in a courtroom. 

21. I have concluded that the father’s application should be dismissed.  There is no significant change that would warrant a reopening of a full hearing of the case. 

22. In the end the mother has not pressed the final orders she sought in her amended application and her application will also be dismissed.

23. It is certainly in the interests of the child that we ended the litigation on 18 March 2011.

24. There is an outstanding contravention application which the father has the right to pursue if he so wishes.   

25. I encouraged the father to think about whether or not he wants to continue the war by way of pressing the contravention application.  I appealed to him to try and limit the litigation.

26. I made some minor alterations to the parenting orders on 18 March 2011 which were aimed at making the original orders clearer.  I ordered the Independent Children’s Lawyer to draw up a calendar.  That at least will hopefully eliminate some of the areas where the parties could have disputes.

27. A new set of orders will be engrossed with a sample timetable.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts on 27 July 2011.

Associate: 

Date:  27 July 2011