Hunter & Uppal
[2008] FamCA 425
•18 June 2008
FAMILY COURT OF AUSTRALIA
| HUNTER & UPPAL | [2008] FamCA 425 |
| FAMILY LAW – PRACTICE AND PROCEDURE – application seeking to vary existing parenting orders – determination of preliminary issue – whether threshold requirement established in Rice and Asplund (1979) FLC 90-725 met – father contends numerous changes in circumstances since previous orders – whether cumulative effect of circumstances warrants reconsideration of parenting orders – except for issue of overseas travel, circumstances not sufficient either individually or on cumulative basis to warrant re-opening issues – issue of child’s international travel to be determined after full hearing – remainder of application summarily dismissed. |
| Family Law Act 1975 (Cth) ss 60B & 60CA Family Law Amendment (Shared Parental Responsibility) Act 2006 |
| Rice and Asplund (1979) FLC 90-725 King and Finneran (2001) FLC 93-079 F and N (1987) FLC 91-813 Bennett and Bennett (1991) FLC 92-191 F & C and Child Representative [2004] FamCA 568 Bolitho and Cohen (2005) FLC 93-224 Edwards and Edwards (2006) FLC 93-306 Sklovsky and Gastin [2007] FamCA 540 Paskandy and Paskandy (2005) 33 Fam LR 509 |
| APPLICANT: | Mr Hunter |
| RESPONDENT: | Ms Uppal |
| INDEPENDENT CHILDREN’S LAWYER: | J Richard Croft |
| FILE NUMBER: | ADC | 1669 | of | 2007 |
| DATE DELIVERED: | 18 June 2008 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Dawe J |
| HEARING DATE: | 12 March 2008 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | N/A |
| SOLICITOR FOR THE APPLICANT: | Self-Represented |
| COUNSEL FOR THE RESPONDENT: | Mr Bowler |
| SOLICITOR FOR THE RESPONDENT: | Adey Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Boehm |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | J Richard Croft |
Orders
Noting that paragraphs 5, 6 and 9 of the father’s application filed on the 28 March 2007 have been dealt with by final consent orders on the 6 September 2007, it is ordered:
(a)Paragraphs 1, 2, 3, 4, 10, 11, 12 and 13 are summarily dismissed.
(b)The father’s application in paragraphs 7 and 8 (being the overseas travel) be referred to the Docket Registrar for directions hearing with a view to preparing the same for final hearing before a Judge of this Court on a date to be fixed.
IT IS NOTED that publication of this judgment under the pseudonym Hunter & Uppal is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT ADELAIDE |
FILE NUMBER: ADC 1669 of 2007
| MR HUNTER |
Applicant
And
| MS UPPAL |
Respondent
REASONS FOR JUDGMENT
Introduction
The preliminary issue to be determined is whether circumstances exist to establish the threshold requirement described as the “rule in Rice and Asplund”. The father has instituted further proceedings. The mother and the Independent Children’s Lawyer assert that the threshold test has not been met.
Hearing
Initially the matter was listed in November 2007, but was adjourned by His Honour Justice Burr on the 23 November 2007 for determination of the Rice and Asplund test issue “at a date and at a time to be fixed by the Court”. The matter was listed before me on the 12 March 2008.
At the hearing the mother was represented by Mr Bowler of counsel and the Independent Children’s Lawyer by Mr Boehm of counsel. The father was unrepresented.
Relevant Background and Chronology
The mother was born in June 1965 and is now aged 42. The father was born in August 1969 and is now aged 38. The parties met in Ireland in 1997. The child of the relationship, a son, was born in September 1998. He now has citizenship of Ireland and Australia.
The parties have been residing in Australia since January 2000, moving to Adelaide in December 2000. The parties separated in March 2001.
There is a long history of litigation between the parties concerning parenting issues about the child. The first application was filed by the father on the 6 June 2001 in the Federal Magistrates Service (as it then was).
In August 2001 orders were made by Federal Magistrate Mead which finalised the proceedings. At that hearing the husband was represented by Mr Jordan of counsel and the wife by Ms Dickson of counsel.
The orders provided that the parties have joint responsibility for the long term care, welfare and development of the child, that the child reside with the mother, that the mother and father each have responsibility for the day to day care welfare and development of the child whilst he is in the care of each of them and that the father have contact three out of every four weekends commencing in August 2001, Wednesday evenings from 6.00 pm to 8.00 pm and special occasion time. From February 2001 until September 2002 this became each alternate weekend from 5.00 pm Friday until 5.00 pm Sunday with other special occasions and as and from the 25 October 2002 each alternate weekend during school term time from 5.00 pm Friday until 5.00 pm Sunday, half school holidays during April, July, September/October school holidays and two periods of seven consecutive days during the Christmas school holidays initially and providing specifically for school holidays to become the second half of the 2004/2005 Christmas school holidays in each alternate school holiday period thereafter. There were also orders for other special occasions.
The order provided “reasonable telephone contact at times agreed between the parties”.
There were also specific orders by consent providing for both parties to be restrained from removing the child from South Australia and or the Commonwealth of Australia without the written consent of the other first had and obtained or changing the child’s principal place of residence from the Greater Metropolitan area without the written consent of the other first had and obtained. Orders were made about delivering up passports and concerning handovers. There was a specific order giving the mother liberty to travel with the child to Queensland on certain conditions.
The first of the applications for contravention were filed by the father on the 8 February 2002 alleging the mother had contravened the orders without reasonable excuse. This application was dismissed by Federal Magistrate Mead in September 2002.
In November 2002 the mother filed an application seeking further final orders, including orders that the father’s contact with the child be suspended.
In April 2003 the father filed an application in the Family Court seeking a Recovery Order.
On the 24 April 2003 Her Honour Justice Murray made orders that the mother deliver the child to the father for contact.
There were further proceedings for contravention filed by the father in the Federal Magistrates Court in April 2003 and another application by the father seeking a Recovery Order in August 2003.
The father filed a response. On the 3 October 2003 the father filed an Amended Response which sought numerous detailed orders concerning the child.
Final consent orders were made by Federal Magistrate Mead in October 2003 when the parties appeared in person and Mr Hicks appeared for the Child Representative (as it was then). By consent the mother was ordered to give the father contact with the child on specific dates in November/December 2003 and January 2004 and from February 2004 each alternate weekend from the conclusion of school on the Friday until the commencement of school on the Monday and for specific occasions, including school holidays. Orders were also made that the father have contact by “by telephone on each non-contact Thursday between 6.30 pm and 7.00 pm or as otherwise agreed, by landline or in default by mobile telephone”. Specific orders were also made about the parties being able to travel interstate with the child on certain conditions. On that occasion an order was made:
“that the father be restrained and an injunction is hereby granted restraining him from cutting the said child […’s] hair”. (Paragraph 5)
Also made by consent were the following orders:
“6.That each party be restrained and an Injunction is hereby granted restraining each of them from taking the said child to any Psychiatrist, Psychologist or Counsellor or Social Worker without the written consent of the other first had and obtained or an Order of this Court.
7.That each parent shall do all reasonable things to ensure that the other parent is kept informed of any significant issues arising relating to the well being, health, education and care of the said child while the child is with that respective parent.
8.That the mother shall keep the father informed as to the name and address of the said child’s Kindergarten or School, the mother shall advise the father in writing within 3 days of the same occurring and shall specify the name and address of the same.
9.That the father shall have the right to attend at the said child’s Kindergarten or School for events that parents are normally invited to participate in such as, but not limited to Sports Day, Concerts, Plays, Quiz Nights, Fundraisers, Sporting Events, Classroom Visits, Classroom Reading, Parent/Teacher Nights, Excursions and Camps.
10.That the father shall have the right to obtain copies of the said child’s Progress Cards/Reports, School Academic Records, Reports, School Magazines and Newsletters, School Photographs (at the father’s own cost), Fees and Enrolment Information, and all other information pertaining to the said child’s Schooling and School related activities, direct from the school.
11.That the mother do forthwith enter the father’s name, address and telephone contact details as the second person to be contacted in the case of emergency to the said child on any Kindergarten or School Enrolment Form.”
By consent all other applications were dismissed and the matter removed from the pending cases list.
On the 20 May 2004 the father commenced proceedings in the Federal Magistrates Court seeking a Recovery Order in relation to the child. This matter was dismissed on the 7 June 2004.
In October 2004 the father filed another application for a Recovery Order and also filed Contravention proceedings.
On the 29 October 2004 Federal Magistrate Mead adjourned further consideration of matters to the 12 November 2004, directed the mother to file documents and ordered that during the period of the adjournment the orders for residence and contact made on the 30 October 2003 “be suspended and in lieu thereof the mother give and the father have contact with [the child] for the adjourned period”.
On the 1 June 2005 Federal Magistrate Mead found against the mother by her own admission in relation to 16 counts of Contravention alleged by the father. The mother was ordered to enter into a Recognizance in the sum of $2,000 to operate for 18 months. The conditions of the Recognizance were that the mother was to comply with all orders of the Court as to residence and contact of the child. The mother signed that Recognizance on the 2 June 2005.
By consent Federal Magistrate Mead also ordered:
“4.That upon the oral application of the father made to the Court this day and by consent:
a)the mother be restrained and an injunction is hereby granted restraining her from attending at [the child’s] school on any days on which the father is due to take contact with [the child] (save for delivering him to school at the commencement of the school day and collecting him therefrom following upon the conclusion of the father’s contact) other than for the purpose of attending for events on which parents are normally invited to participate including but not limited to Sports Day, concert days, plays, quiz nights, fundraisers, sporting events, classroom visits, classroom reading, parent/teacher interviews, excursions and camps;
(b)the mother ensure that [the child] attends at school for the duration of the school day on all days on which the father is due to take contact SAVE AND EXCEPT in the case of a genuine medical emergency to be authenticated by the production of a medical certificate to the father within four (4) days of the said occurrence;”
The current application was filed by the father in the Federal Magistrates Court on the 28 March 2007. That application seeks the following orders:
“EQUAL SHARED PARENTAL RESPONSIBILITY
(1)That both parents have equal shared parental responsibility of [the child] (excepting education of the child).
EDUCATION
(2)The Father have sole parental responsibility for [the child’s] education.
CHANGE OF SURNAME
(3)That the surname of [the child] be changed from [UPPAL] to [HUNTER-UPPAL], or in the alternative, to [UPPAL-HUNTER].
(4)Those subject to paragraph 1, the Mother do sign and return all documents necessary, for the full and accurate completion of the child’s legal change of name to the father’s postal address by registered post (Australia Post) within four days of the making of this order. Such documents shall include but are not limited to both of the child’s Irish and Australian passports, school enrolment forms, sporting and social clubs forms, and any other like documents that [the child’s] name appears on for legal and/or enrolment and/or ‘use and repute’ social purposes.
ISSUE OF CHILD PASSPORT
(5)Subject to Paragraphs 1, 2 and 3 above, the Minister for the Department of Foreign Affairs and Trade (DFAT) do issue an Australian Child’s passport without the Mother’s parental consent to the Father in the child’s name (being […] at the time of filing), born 28th September 1998 for the purpose of international travel.
(6)That the expense to obtain the Child’s passports be borne by the Father and remain in the possession of the Father, subject to [the child’s] requirements.
OVERSEAS TRAVEL
(7)That the father be at liberty to take the child […], born […] September 1998, from the Commonwealth of Australia for the purposes of visiting his grandparents on an overseas holiday to Europe departing Adelaide, South Australia in or around 8th July 2007, (or at the earliest possible date thereafter, and returning one month later), and returning to Adelaide South Australia in or around 8th August 2007, and furthermore that an injunction be the Mother and her agents be restrained and an injunction be granted restraining her from obstructing the father and/or [the child] from undertaking such travel in any way.
(8)That after the first period of overseas travel, the father be at liberty to take the said child overseas for 4 weeks in any two (2) calendar year period provided that:-
(a)The father give the Mother a clear 30 days notice in writing.
(b)That in the event of a medical emergency or serious family illness in the father’s family overseas, and the thirty day notification in paragraph (a) is not possible, the father simultaneously notify the mother as soon as possible and the Adelaide Registry of this Honourable Court of his intention to travel.
(c)Such four (4) week period shall not back onto any school holiday period but may include a school holiday period. The child shall not be kept from having contact with the Mother for a period in excess of twenty-eight (28) days from the travelling parent’s first day of taking such extended contact overseas trip. Further the Father travel to such countries that are signatories to the “Hague Convention” agreement.
HAIRCUT – father at liberty to take child to barber
(9)That paragraph 5 of the Orders made herein on the 30th day of October 2003 be dismissed.
CHILD TO SPEND EXTRA TIME WITH FATHER
(10)That paragraph 6(h) (ii) of the Orders made herein on the 30th day of October 2003 be varied to read “from the conclusion of school on Wednesday (delete “Thursday”) until the conclusion of school on the following Wednesday (delete “Monday”)”.
INJUNCTIONS
(11)That the Mother be restrained and injunctions do be granted restraining each of them respectively from doing the following:-
(a)From discussing with the said child any matter associated with any proceedings before this Honourable Court and/or to do with child maintenance issues, or allowing the said child to remain in the vicinity of any persons discussing such proceedings and/or child maintenance issues and from making available to the said child (for the purposes of reading the said documents) any Federal Magistrates Court document or Family Court document filed herein, any child maintenance documentation and/or any correspondence from solicitors or each respective party.
(b)Denigrating the Father or his relatives, to the child or in the presence of the said child and/or permitting and or encouraging any third party to do so.
(c)From interfering in any way with the Father’s telephone conversations with the said child and shall respect the child’s right or privacy in relation to telephone conversations with the Father.
FUTURE SCHOOLING/EDUCATION
[The child’s] new school
(12)That the Father be at liberty to enrol [the child] in a private school and furthermore the mother shall facilitate [the child’s] ongoing attending at such school for the whole of each day of school, and do all acts and things otherwise necessary for [the child’s] ongoing schooling and school related activities, until further Order of this Court or with the Father’s written consent.
(13)That the Mother be responsible for ensuring and encouraging that [the child] completes his school homework, assignments, projects or other like exercises, on time, and to the best of [the child’s] abilities prior to any deadline prescribed by any of [the child’s] school teachers.
(14)That each party do bear their own costs in this matter.
(15)Such further and/or other Orders as this Honourable Court deems fit.”
On the 27 April 2007 the mother filed her response and sought the following orders:
“1.That all arrangements of current orders dated 30/10/03 remain in place.
2.That the surname of the child remain as is ([UPPAL]).
3.That the passports remain in the custody of the mother or Court.
4.That the child remain in the Commonwealth of Australia.
5.That paragraph 5 of the orders made on the 30/10/07 remain.
6.That paragraph 2(H)(ii) remain the same.
7.That the applicant bear all costs.
8.That the applicant cease his ongoing correspondence with the mother unless they are directly related to the child’s health and wellbeing.
9.That the applicant father ensures appropriate lead up time for all parties when dealing with the Honourable Court.”
Further procedural orders were made in the Federal Magistrates Court. On the 18 June 2007 Federal Magistrate Mead ordered:
“Upon noting the complexities of this matter and the possibility of a “Rice and Asplund” threshold argument at least in relation to issues other than the child’s passport and private or public schooling
THE COURT ORDERS THAT:
1.All extant applications be transferred to the Family Court of Australia.”
On the 6 September 2007 His Honour Justice Burr made certain procedural or directions orders.
By consent orders were made in relation to the issue of passports (both Australian and Irish passports) and that such passports be retained by the Registry Manager of the Family Court not to be released without written agreement between the parties or further order of this Court.
The consent order also included the following:
“5. The mother do ensure that [the child’s] hair is of such a length and in such a state as abides any policy of any school attended by the said child.
6.Both parties be restrained and an injunction is hereby granted restraining each of them from:-
(a)discussing with [the child] any matters associated with any proceedings before this Court and/or to do with child maintenance issues, or allowing [the child] to remain in the vicinity of any persons discussing such proceedings and/or child maintenance issues and from making available to [the child] (for the purposes of reading of the said documents) any Federal Magistrates Court document or Family Court document filed herein, any child maintenance documentation and/or any correspondence from the solicitors or each respective party; and
(b)denigrating the other party or his / her relatives to [the child] or in [the child’s] presence and from permitting and/or encouraging any third party to do so.
7.The mother be restrained and an injunction is hereby granted restraining her from interfering in any way with the father’s telephone conversations with [the child] and do respect [the child’s] right of privacy in relation to telephone conversations with the father.”
Directions were made for parties to file documents in preparation for the hearing before Justice Burr on the 2 October 2007 of the interim Rice and Asplund argument.
On the 23 November 2007 Justice Burr adjourned further consideration to a special listing or short trial listing. It is pursuant to that order that the matter was listed before me on the Rice and Asplund argument on the 12 March 2008.
The current orders that the father seeks can be summarised as follows:
(1)that he have the sole parental responsibility for the child’s education;
(2)that the child’s surname be changed from “Uppal” to “Hunter-Uppal” or in the alternative “Uppal-Hunter”(and for ancillary orders concerning the use of the new surname);
(3)that a passport be issued in the child’s name (this has been the subject of consent orders already and is no longer an issue);
(4)that the father be at liberty to take the child overseas (with certain conditions attaching);
(5)that paragraph 5 of the orders of the 30 October 2003 be dismissed (this was the order restraining the father from cutting the child’s hair);
(6)that the orders of the 30 October 2003 be varied to provide for the child to spend time with the father from the conclusion of school on Wednesday (not Thursday) until the conclusion of school on the following Wednesday (instead of Monday);
(7)the father sought injunctions to restrain the mother from:
(i)discussing the proceedings with the child or allowing the child to hear anyone else discussing the proceedings;
(ii)denigrating the father or his relatives in the presence of the child or interfering with the father’s telephone conversations with the child;
(8)the father sought orders to allow him to enrol the child in a private school;
(9)the father also sought orders to facilitate the child attending school and for the mother to encourage the child to do his school work.
the law and principles to be applied
This is a matter in which the Court has been asked to determine the Rice and Asplund question as a preliminary matter. The parties requested that I determine the question summarily on the documents without hearing and determining the contested evidence or facts in issue.
The often quoted passage from the decision of Rice and Asplund (1979) FLC 90-725 is that of then Chief Justice Evatt at page 78,905:
“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 way they apply and the factors which will justify the Court in reviewing a custody order will vary from case to case.”
The authorities have described the rule in Rice and Asplund as one which has been developed to protect children from involvement in further unnecessary litigation and recognises the need to bring finality to litigation, particularly where children are involved. (King & Finneran (2001) FLC 93-079 and F and N (1987) FLC 91-813).
In Bennett and Bennett (1991) FLC 92-191 the Full Court said at page 78,262:
“…it is, we think, a matter of discretion as to whether a Judge embarks upon a full hearing of a matter or determines the threshold question as to a change in circumstances. This is in no way to derogate from the general principle expressed by the Full Court in Rice and Asplund (1979) FLC ¶90-725, and in Zabaneh and Zabaneh (1986) FLC ¶91-766, that fresh applications for custody should not be entertained unless there exists a substantial change in circumstances.” (My underlining)
In F & C and Child Representative [2004] FamCA 568 the Full Court dealt with an appeal by the mother against the summary dismissal of her application for new residence orders by Deputy Chief Justice Faulks.
Under the heading “Relevant principles to be applied when summarily dealing with an application to relitigate residence issues” The Full Court said:
“36.The Family Law Act 1975 provides in s 65D that in proceedings for a parenting order, the court may make such parenting order as it thinks proper and that a court may make a parenting order that discharges, varies, suspends or revives some or all of an earlier parenting order.
37.There are no guidelines or requirements contained in the Act as to when a court may refuse to entertain an application for the variation of an existing order, nor the matters that a court should consider in determining whether or not to exercise its jurisdiction (c/f s 83(2) – requirements to be satisfied before varying a maintenance order).
38.The principles that have been developed by the Full Court in such applications are well settled. In Rice v Asplund Evatt CJ, with whom Pawley SJ and Fogarty J agreed said at 78,905:
"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 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…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…"
39.In Griffiths and Griffiths (1981) FLC 91-064 at 76,500; (1981) 7 Fam LR 322 at 323-324; Lindenmayer J said:
"In order for the husband to achieve a change of custody, even after a full hearing on the merits, he must establish a significant change of circumstances since the last order was made; a change of circumstances sufficient to justify a review by the Court of the custodial situation…” (My underlining)
40.Nygh J, with who Evatt CJ and Burton J agreed, said in F and N (1987) FLC 91-813; (1987) 11 Fam LR 664 that the Court should be reluctant in assuming jurisdiction too soon after there has been a full and adequate hearing of the custodial dispute between the parties.
41.In Bennett v Bennett (1991) FLC 92-191; (1990) 14 Fam LR 397 Nicholson CJ, Simpson and Finn JJ accepted as correct the general principle expressed by the Full Court in Rice v Asplund that fresh applications for custody should not be entertained unless there existed a substantial change in circumstances. (My underlining)
42.In Saad v Saad (1993) FLC 92-332 at 79,519; (1992) 16 Fam LR 55 at 71 Baker, Lindenmayer and Moss JJ said:
"(3)Although it may be inappropriate, and is often unhelpful, in proceedings in relation to the guardianship and custody of or access to a child, to treat either party as bearing an onus of proof in relation to the welfare of the child, where a party applies for the variation or discharge of an existing order of that kind that party bears at least a forensic onus of placing before the court sufficient evidence of changed circumstances since the making of the existing order upon which the Court could be satisfied that it is in the interests of the welfare of the child to vary or discharge that order. (Rice and Asplund (1979) FLC 90-725; Freeman and Freeman (1987) FLC 91-857). (My underlining)
(4) It was therefore not for the wife to adduce evidence sufficient to satisfy her Honour that Burton, J's [sic] orders should continue in force, but rather for the husband to at least place before her evidence sufficient to justify a reconsideration of those orders, and only if that were done was her Honour called upon to decide, in the exercise of her discretion, whether the welfare of the child required the discharge or variation of those orders, or their continuance."
43.In D and Y (1995) FLC 92-581 at 81,764; (1995) 18 Fam LR 662 at 671-672 Nicholson CJ, Baker and Tolcon JJ appear to have narrowed the circumstances in which a fresh application for a parenting order might be considered when their Honours said:
”The general principle, that fresh applications for custody should not be entertained unless there exists a substantial change in circumstances, has been consistently stated in cases such as Rice and Asplund, Zabaneh and Zanbaneh, and Bennett and Bennett.
In Bennett's case the Full Court considered a ground of appeal which argued that trial Judge had erred by embarking upon a full custody hearing without making it clear she had done so, when she ought to have first determined whether there was a sufficient change in circumstances to warrant doing so. The Full Court said it was a matter of discretion for the trial Judge:
'The fact that the determination as to whether or not to deal with a change of circumstances as a preliminary issue or to proceed to a full hearing is a discretionary matter, is supported by the remarks of the High Court in refusing leave to appeal in the recent case of Lowev Lowe (6 April 1990). In that case, Elliot J had, in fact, dealt with the threshold question as a preliminary matter and the High Court thought that it was within his discretion to do so, but made it clear that the matter was one of discretion. We may say in the present case, given its history, we would have been disposed to deal with the threshold question as a preliminary matter, but we are not satisfied that her Honour's discretion miscarried in embarking upon the course that she did.'
In the present case, we can see no reason for criticising Bell J for exercising his discretion to require the wife to establish as a preliminary matter whether there had been a sufficient change of circumstances to justify the reopening of the issue of custody.
There had already been a nine day hearing on this issue a little more than two years previously and the actual change in custody had only occurred following the giving of the decision by Warnick J on 17 December 1992. In such circumstances we consider that a Judge would be extremely loathe to reopen the issue of custody except on strong grounds and would normally require, as Bell J did, that the matter should be determined as a preliminary issue." (emphasis added, citations omitted).
44.Most recently, Collier J, when determining an appeal from a Federal Magistrate in King and Finneran (2001) FLC 93-079 dealt first with an argument that following the extensive amendments to the Family Law Act in 1995, it was now mandatory to conduct a full inquiry of the matters set out in s 68F whenever a parenting order is sought. We agree with his Honour’s view that the legislation has not changed sufficiently to cause that which could be done before the 1995 amendments, that is the application of a threshold test, to be unavailable since the coming into effect of the 1995 amendments. His Honour correctly observed at 88,367-88,369:
"41.The rule in Rice and Asplund is a rule evolved to protect children from involvement in further unnecessary litigation. To require a court to make a detailed determination of the matters set out in section 68F would defeat the purpose of that protection. It would mean that before the matter could be dealt with, a complete hearing, or …at least a hearing dealing with the section 68F factors, would have to be undertaken and completed.
42.A judge or magistrate exercising jurisdiction under the Family Law Act is not required to undertake the exercise of identification and evaluation that the husband urges. To do so would be to abolish for all effective purposes the opportunity of a court to make a threshold determination in cases where such an early end to the litigation was the best result for the children.
43.It is clear that a trial judge has a discretion as to whether or not to deal with the matter at a threshold level or to embark upon a full hearing (see Bennett and Bennett (1991) FLC 92-191 ).
44.To apply the test in Rice and Asplund is to make an assessment on the material then available to the court as to whether or not the matters raised in that 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. It may be necessary to assess whether or not the matters are indeed matters of change or whether they are completely fresh issues that require revisiting the earlier decision. This is not always a clear distinction. (My underlining)
…
49.Clearly, both words [‘significant’ and ‘substantial’] indicate something out of the ordinary course of events. To be either significant or substantial is to indicate that a matter is of importance, of consequence, of real worth, of ample or considerable amount, quantity, size etc. When related to a change in circumstances, this clearly requires that the change or changes relied upon must be of consequence and must be more than that which would occur by the passage of time or in the usual course of human activity. (My underlining)
50.In D and Y (1995) FLC 92-581 their Honours of the Full Court made a finding that a trial judge has a discretion whether to deal with a change of circumstances as a preliminary issue or to proceed to a full hearing. Their Honours indicated that in the circumstances that prevailed in that case, that is, a nine day hearing a little more than two years previously, that a judge would be extremely loath to reopen the issue of custody, except on strong grounds. The word strong in that case is a departure from substantial or significant as used in earlier cases. It indicates clearly what is required. The change or fresh circumstance must be such that upon becoming advised of it and being satisfied of its existence, a court would be left in no doubt that it was necessary to relitigate the parenting issue in dispute between the parties. That is not to say that a court must be satisfied that the fresh or changed circumstance would result in a change to the orders. It merely indicates that the change or fresh circumstance must be such that if taken into account there is a real likelihood that a change may follow. (My underlining)
…
62.What is required is that a trial judge be satisfied that there has been demonstrated such a change that it must be a matter of concern and requires the court to examine the situation of the children afresh. There is no assistance to be gained from the authorities as to whether or not this can be done cumulatively. The law at present requires that there be a change such as to require re-litigation. That change can be made up of component parts or could rely on one single but major change. However, a cumulative basis for change in circumstances cannot be made simply by weight of numbers of the changes alleged to have occurred.
…
64. the purpose of the rule is to protect the children from exposure to further unnecessary litigation."
45.Although this point was not argued before us it may be that there is need to add a caveat to Collier J’s view that it may be sufficient to allow a fresh application to proceed if there is a “real likelihood that a change may follow”. In CDJ v VAJ (1998) 197 CLR 172 at 204; FLC 92-828 at 85,449; 23 Fam LR 755 at 780-781; the High Court determined an appeal concerning the circumstances in which a Full Court might admit further evidence in a parenting case. McHugh, Gummow and Callinan JJ said:
"[117]The discretion to admit further evidence obviously needs to be exercised with much care in parenting cases. The decision as to who should have the day to day care of children will so often be an agonising one, as indeed it is in the present case where both parents are anxious for their children's welfare. The advantage said to be attached to the opportunity of a judge at first instance to see and hear the witnesses on issues of credibility and the like may perhaps on occasions be exaggerated. Nevertheless, those advantages are likely to be real ones in a parenting case heard by a specialist judge whose decision will involve a choice of who will be a better 'custodian' of the children: sometimes either parent would be an excellent choice, and often neither would be ideal.
[118]The need for caution is particularly great when an order for a change in the residence of children has been made and the appellant seeks to tender further evidence pointing to changes in circumstances, outlook or apparent welfare. In all but the most ideal of circumstances, some time will be taken by children to adapt to their different situations. So too the public and private interest in the finality of litigation must be given some weight even in cases of this kind. The important private interests of children are unlikely, save in special circumstances, to be served by frequent displacements of them and the uncertainty of prolonged and repetitive proceedings." (My underlining)
46.Their Honours expressed the view that further evidence might only be allowed if it would clearly have led to a different conclusion. They said [CLR at 217-218; FLC at 85,457-85,458; Fam LR at 792] :
"[148]New hearings are not to be ordered merely because there is a real chance that a different order might be made by a different judge or that there is a real chance that the order under appeal does not serve the best interests of the child. It is true that finality of litigation cannot play the part in the exercise of the s 93A (2) discretion that it does in the exercise of the discretion to order a new trial in common law proceedings. Nevertheless, it does have a role to play in the exercise of the s 93A (2) discretion. Whatever the limits of that role, it at least rules out the admission of further evidence where the appellant cannot establish any error in the making of the orders but seeks to have a new trial because on the whole of the evidence now available different orders might be made at that trial.
[149]In the context of a case such as this one, the relevant purpose of s 93A (2) is to facilitate the correction of an error where that error has probably occurred because the further evidence was not before the primary judge. Because that is so, the proper exercise of the discretion in the circumstances of this case required the Full Court to be affirmatively satisfied of two things. The first was that, given the findings of the trial judge, the further evidence if tendered before him was likely to have produced a different result. It was not enough that the Full Court thought that, upon the whole of the evidence including the further evidence, another judge might make a different order. The second was that the best interests of the children required rehearing of the husband's application, notwithstanding that all members of the family would likely suffer stress, inconvenience and uncertainty as the result of a new hearing. In that context, the financial cost of a further hearing and its impact on the family could not be ignored.
[150]In some exceptional cases - those concerned with allegations of physical or psychological abuse of a child are an example - it might arguably be a proper exercise of discretion for the Full Court to admit further evidence and order a new hearing even though it is not reasonably satisfied that the evidence would have produced, or at a new hearing would now produce, a different result. In such cases, it may be enough that the court thinks that there is a very real risk, although not a probability, that the current order may actually endanger the child. The consequences for the child may be so grave that arguably the best interests of the child might require the admission of the further evidence and a new hearing to investigate all the available evidence. But if such cases would entitle the Full Court to order a new hearing, they should be regarded as truly exceptional. Ordinarily, even those cases are best left to be dealt with by an application, made pursuant to s 65E, to vary the order the subject of appeal…"
47.Though there may be important distinctions between the considerations bearing upon the receipt of further evidence on appeal and the reopening of a parenting order at first instance, it may be proper that a judge considering an application to relitigate a recently completed parenting case should bear such considerations in mind.
48.It is apparent from the reasons expressed by Faulks J that the matters discussed in the authorities mentioned above were the very considerations that led him to dismiss the mother’s application to reopen the residence issue. Even more recently than in D v Y there had been a full hearing on the issue. It was clearly within a proper exercise of his Honour’s discretion to conclude that the matters sought to be raised by the mother did not amount to changed circumstances such as to justify a further round of investigation and preparation of reports at great financial cost to the parties and the community and at great emotional cost to the child.”
In Bolitho and Cohen (2005) FLC 93-224 at page 79,695 the Full Court agreed with and adopted the principles espoused by Collier J in King and Finneran (Supra) which they set out as follows:
“44.In King v Finneran, a case decided after the Family Law Reform Act 1995 (Cth), Collier J, when discussing the nature of the change required to warrant further consideration of a fresh application at 88,368, said:
“The words in any event are not words of necessarily strict dictionary definition. In D and Y (1995) FLC ¶92-581 their Honours of the Full Court made a finding that a trial judge has a discretion whether to deal with a change of circumstances as a preliminary issue or to proceed to a full hearing. Their Honours indicated that in the circumstances that prevailed in that case, that is, a nine day hearing a little more than two years previously, that a judge would be extremely loath to reopen the issue of custody, except on strong grounds. The word strong (sic) in that case is a departure from substantial or significant as used in earlier cases. It indicates clearly what is required. The change or fresh circumstance must be such that upon becoming advised of it and being satisfied of its existence, a court would be left in no doubt that it was necessary to relitigate the parenting issue in dispute between the parties. That is not to say that a court must be satisfied that the fresh or changed circumstance would result in a change to the orders. It merely indicates that the change or fresh circumstance must be such that if taken into account there is a real likelihood that a change may follow.” (My underlining)
In King v Finneran (Supra) Collier J also said at paragraph 64:
“64.Simply because the changes sought by the appellant are of a minor nature the threshold test is not reduced. Indeed, the less important or far reaching the change or alteration to orders that is sought to be achieved is, perhaps the more important it is to demonstrate a change of circumstances or fresh circumstances requiring a further hearing to achieve this result. This is so because the purpose of the rule is to protect the children from exposure to further unnecessary litigation. If it were open to a litigant to achieve a re-hearing because he were able to argue that the changes he sought were minor and accordingly the change in circumstances or fresh matters that he needed to raise were accordingly reduced, this would produce ridiculous and nonsensical results.”
More recently in Edwards and Edwards (2006) FLC 93-306 (Finn, May and Boland JJ) the Full Court again considered the principles of Rice and Asplund. They referred to the decision of F & C and Child Representatives (Supra) with approval. At paragraph 111 the Full Court said:
“111.The well settled principles in Rice and Asplund (supra) were formulated to promote the best interests of children who are the subject of proceedings under the Act. The principles recognise the damage which may be caused to children by endless litigation which may, directly or indirectly, expose them to conflict, and the potential abuse of a child by subjecting the child to repeat expert interviews. Whilst finality of litigation is a desirable object, it has long been recognised that orders which relate to the welfare of a child and which require the child’s best interests to be the paramount consideration, can never be final, and that further applications can, and should, in an appropriate case, be made to and determined by the Court. In many instances it will be appropriate that some applications should be dealt with on a threshold basis. In other cases the threshold question should be determined as part of the overall proceedings. ”
By the orders of the 17 August 2001 the parties already have joint responsibility for the long term, care, welfare and development of the child and responsibility for his day to day care, welfare and development whilst in their respective care.
The amendments made to Part VII of the Family Law Act by the Family Law Amendment (Shared Parental Responsibility) Act 2006 specifically provided in Section 44 of Schedule 1, Part 2:
“The amendments made by this schedule are not taken to constitute changed circumstances that would justify making an order to discharge or vary, or to suspend or revive the operation of, some or all of a parenting order that was made before commencement.”
Nevertheless, it is still important to consider the provisions of Part VII of the Family Law Act. In particular Section 60B(1) and (2):
“Section 60B
The object of this Part is to ensure that children receive adequate and proper parenting to help them achieve their full potential, and to ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that, except when it is or would be contrary to a child's best interests:
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development; and
(c)parents share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children.”
Section 60CA directs the Court to consider the best interest of the child as the paramount consideration and provides factors which the Court must consider when determining what is in the child’s best interest.
These principles have been discussed in the recent judgment of His Honour Justice O’Ryan in the matter of Sklovsky and Gastin [2007] FamCA 540.
The Court is now asked to determine in a summary way whether the father has made out the necessary change in circumstances to permit the matter to proceed to a final hearing.
It is necessary to consider the facts alleged by the father which he says establish a change in circumstances necessary to pass the Rice & Asplund (Supra) test.
change of circumstances relied upon by the father
In his Revised Outline of Case dated 5th October 2007 the father says:
“In the case of the father, the changed circumstances upon which he intends to rely as justifying the re-litigation of the proceedings;
1.It could not possibly have been foreseen that (sic) Mother would keep the child from school on so many occasions.
2.It could not possibly have been foreseen that the Child would be ill so often in the Mother’s care (with serious illnesses).
3.It could not possibly have been foreseen that the Mother would continue to behave in such a way and go to such lengths to interfere with the child’s relationship with his father, elicit negative comments about he (sic) father and prevent the child’s (sic) from having any meaningful relationship with the Child’s paternal grandparents.
4.It could not possibly have been foreseen that the child’s social and emotional wellbeing and behaviour would suffer and his behaviour deteriorate and become so problematic at his current school since leaving the agreed private Catholic School to the extent that it is significantly impacting on his academic performance.
5.It could not possibly have been foreseen that the Mother would unilaterally remove the child from an agreed Catholic School to the [G] Primary (Public) School without the father’s consent.
6.It could not possibly have been foreseen that the Mother would need to depend on the child to such an extent that she is present at the school so frequently that he now has no safe haven (free from her emotional state and/or influence).
7.It could not possibly have been foreseen that the Mother’s style of parenting would try to prevent an assessment of the child’s high intellect.
8.The birth of [the child’s] cousin in Germany and the impending birth of another cousin in Dublin sometime in November 2007.
9.The father’s stable life in Australia through is permanent employment, purchasing a family home, marrying his wife, obtaining Australian citizenship and ability to work part-time.
10.The child’s grandparents are now living with [the child].
11.The relevance of the mother’s psychiatric state has never been assessed as a condition of the amount of time the child lives/spends with her.
12.Ongoing contraventions by mother as at Thursday 4th October 2007 places father in position where he has no option but to file contravention applications and if found proven, the court has no option but to consider mother’s term of imprisonment and or adjourn proceedings under 70NEB(1)(c) to allow father to apply for a parenting order.”
On the 6 September 2007, His Honour Justice Burr ordered inter alia:
“11.In the event that the father alleges that there are additional changed factors and circumstances relevant to the Rice & Asplund argument, then on or before 4.00 pm on Monday 24 September 2007 he do file and serve an affidavit(s) detailing such additional changed circumstances,
12.On or before 4.00 pm on Tuesday 2 October 2007 each of the parties and the Independent Children’s Lawyer do file with the Associate to the Honourable Justice Burr an Outline of Case document which includes, at the very least:-
(a)a brief summary background;
(b)specific detail as to the Orders being sought;
(c)the authorities upon which the parties intend to rely;
(d)in the case of the father, the changed circumstances upon which he intends to rely as justifying the re-litigation of the proceedings;
(e)in the case of the mother and the Independent Children’s Lawyer, an analysis of those alleged changed circumstances in order to respond; and
(f)a summary of argument.”
On the 24 September 2007 the father filed an affidavit of 149 paragraphs and 24 pages with numerous annexures.
On the 7 March 2008 I received the affidavit of the father sworn on the 7 March 2008 notwithstanding the objection by counsel for the mother that no leave had been given to file this affidavit.
The mother’s counsel drew attention to the objections made on behalf of the mother to a large amount of the material in affidavits of the father filed on the 24 September 2007 and the 28 March 2007.
The objections taken to some of the material in the father’s affidavits are made out. The affidavits contain much in the way of argument, comment and opinion. Parts of the affidavits contain excerpts from cases and other reports.
In paragraph 4 of the affidavit of the 24 September 2007 the father says as follows:
“4.In my Affidavit sworn on 24/9/07, I rely on ‘Rice and Asplund’ [(197)9 FLC 90-126] and submit that a material change in circumstances as well as factors that were not disclosed at the previous hearing which would have been material to the case as it was first heard at a contested hearing in August 2001 and later amended by consent in October 2003, are sufficient to meet the threshold authorising the Court to exercise jurisdiction to hear my application and to make the orders applied for.”
He then proceeds to deal with his alleged circumstances under certain headings. I will follow those headings.
“Characteristics of Gifted Children”
The father then refers to a Senate Committee report. He says in paragraph 5:
“5.I say that these issues relating to the characteristics of gifted children are extremely relevant as they relate to [the child’s] deteriorating progress and development at his current school.”
The father asserts that the child has “possible gifted status”. (My underlining)
That the child may be gifted does not on its own establish a significant new factor which would support litigation in family law courts.
“[The child’s] Poor Attendance Record at School”
The father sets out his allegations about the days the child has missed attending school and annexes to his affidavit attendance records at the G School and his previous school, L School.
The G School record shows a start date of the 31 January 2005 and a finish date of the 19 June 2007. A total of 44 days are mentioned for absences for the whole day or for days when the child was late. The Code indicates that some were for family reasons which could include holiday, some were for illness and some were for “exemption”, which could also mean holiday.
Over a period of two and a half years this is an average of approximately 18 days a year when the child was either late, ill or away for family or “exempt” reasons.
Also annexed to the father’s affidavit is the child’s attendance record at L School for the 27 January 2004 to the 18 November 2004 and his end of year school report.
That report details that the child was absent for 33 days and late for five days during the whole year. The teacher’s comments begin, “[The child] has made very good progress in his first year of schooling across all areas of curriculum”. It also includes in part, “[The child] has really excelled this year in Science and in Society and Environment, where his incredible higher order thinking skills can be utilized. His comprehension of some quite complex subjects is amazing”.
The father then annexes documents which refer to the Department of Education Policy in relation to absenteeism.
The school report does not support any finding that the absences in 2004 warrant further litigation now.
This circumstance or alleged change is not of sufficient seriousness to warrant further litigation.
“[The child’s] Recent Schooling Problems”
The father asserts that “significant changes have also occurred in relation to [the child’s] academic performance”.
The material under this heading contains comment and expressions of opinion by the father. It also contains a significant amount of correspondence between the father and the school authorities about the mother’s attendance at the G School.
The father refers to the annexure “DJH-29” which is a letter from the G Primary School which expresses concern about changes in the child’s behaviour and attitude to learning. That letter of the 5 September 2007 concludes:
“We feel that [the child] would benefit from having a trusted adult to talk to with expertise in student counselling, hence requesting your support in a referral to a DECS social worker who will initially, meet with parents and teacher to define the issues and then subsequently meet with [the child].
We are more than happy to meet with you to discuss these issues in more detail.”
Whilst the material provided by the father may suggest that the child’s parents should co-operate with the school, confer with the school and consider the advice given, the affidavit material of the father does not provide evidence to suggest that these developments make it necessary or advisable to resume litigation or for the Court to again consider the parenting orders made in relation to the child.
The issue of the child’s schooling and his possible gifted status were issues which were known to the father, and indeed, formed the basis of orders sought by the father in 2003. They are not new issues and the evidence before the Court upon which the father now seeks to rely is not of such significance as to require a reconsideration of the parenting orders.
“Significance of any Future Enforcement Proceedings”
The father refers to the judgment of Federal Magistrate Mead of June 2005 when she imposed penalty for the mother’s admitted breaches of the orders. Her Honour accepted the submission that the appropriate penalty was to place the mother on a bond. Federal Magistrate Mead then placed the mother on a bond of $2,000 for a period of 18 months on conditions. Her Honour also made remarks about the serious nature of the matter and concluded:
“…The consequences of course in the event that there is any finding of failure to comply with orders in future will not only be the estreatment of this original bond but also the possibility of a more significant penalty. In a matter with the serious history of this matter the court would not be able to avoid at least considering a period of imprisonment.”
The father contends that the mother has again contravened the orders of the Court by attending the child’s school on days when he is due to take contact. The allegations relate to the mother attending as a volunteer worker at school to coach sporting activities and has also been undertaking some work as a school support officer.
The father also refers to school notes about the child and concerns about the child’s attitude. As previously discussed, the admissible material as supplied by the father does not provide any evidence which suggests that the school’s concerns about the child’s full educational development are associated in any way with the parenting orders nor that any possible change to the parenting orders would assist the child’s educational development or attitude.
Paragraph 46 of the father’s affidavit of the 24 September 2007 again sets out comment by him. He appears to assume that the remark made by Federal Magistrate Mead would be binding on other judicial officers. The type of penalty imposed for any further contravention would of necessity depend upon the type of contravention proved, any reasonable excuse for that contravention together with full consideration of the provisions of the Family Law Act for each contravention.
“[The child’s] Surname”
Under that heading the father sets out what he considers to be his argument for the child to now be given a name hyphenated by the mother’s and father’s names.
He refers to the child’s dual citizenship which is not an issue and does not relate to his surname. The father annexes a copy of a Family Court Judgment in relation to a change of surname.
The father applied in 2003 to change the child’s surname. That application was dismissed.
The only new factors provided by the father are in paragraphs 57 and 58 of his affidavit filed on the 24 September 2007:
“57.I say that [the child] is old enough to understand and is aware of the different surnames of his mother.
58.I say that the addition of the name [Hunter] to his existing name of [Uppal] will not confuse or unsettle him in any way and in fact will have the opposite effect.”
If all of these factors were established this would not provide any significant or substantial change to reconsider the matter which was previously dismissed.
“Additional Learning for [the child] at my Home”
The father sets out what he says have been tasks he has undertaken whilst the child has been in his care. He concludes at paragraph 66:
“66.I say that when [the child] is with me he performs well academically and completes his tasks. He is also focussed in that he concentrates well, appears happy and confident in that he has no hesitation in doing them.”
This is evidence which appears to support the benefit to the child of the current arrangements and does not support further litigation concerning the parenting orders.
“The Mother’s Ongoing Problems with [the Child] Spending Time with me”
Under this heading the father provides references and copies of transcript of the trial before Federal Magistrate Mead in 2001 and comments by Federal Magistrate Mead on the 29 October 2004.
The events of 2001 occurred before the consent order of 2003. Federal Magistrate Mead’s comments in October 2004 that she had “not at any times made any findings that there is evidence before me that would satisfy me that [the child] had other than a satisfactory beneficial relationship with his father”. These comments were made by Federal Magistrate Mead when enforcing the orders of the Court which the father now seeks to change.
“[The Child’s] Serious Illness”
In paragraphs 88 to 101 the father sets out particulars about the child’s hospitalisation in July 2007 and the fact that both parents shared care for the child.
Paragraph 101 concludes:
“101.I say that the Respondent Mother chose to behave in a polite and orderly manner whilst [the child] was in my care and everything went well at the hospital. I say his (sic) is an important example of how [the child] benefits from both parents working together when he is in my care and that it is possible to do so.”
This evidence does not support any change to the parenting orders.
“The Mother Testing the Leniency of the Court”
In this section the father sets out his allegations that the mother interfered with his handover at school on the 16 August 2007 when she had a conversation with the child at a time when the father was collecting the child from school.
The father also asserted that the mother had not obeyed the order to execute the passport application forms as ordered by the Court on the 6 September 2007.
I am not satisfied that these factors, if proven correct, would establish a ground upon which the Court would consider altering the present parenting orders for the child.
“Mother’s Solicitor Misled Court to Obtain Advantage and the Mother’s (Alleged) Witnesses”
The father comments upon the affidavits filed by the mother’s witnesses in the proceedings.
In the summary nature of these proceedings I have not relied upon the affidavits of the witnesses of the mother. I have sought to determine whether the father has provided evidence to support his case.
“[The Child’s] Sporting Commitments”
This is the last heading in the father’s affidavit of the 24 September 2007. The father says at paragraph 147, 148 and 149:
“147.I say that as a result of the Mother’s presence and actions whilst [the child] is in my care, I have enrolled [the child] at a junior rugby club to ensure that [the child] is fully able to participate in social team activities and sporting activities when he is in my care.
148.I say also that by the Mother’s seeking and obtaining Affidavits from school staff, school associates and other witnesses, all of who are unknown to me makes it impossible for me to attend and participate in any meaningful way at [the child’s] school and sporting events.
149.I say this is a very significant issue that needs to be urgently addressed by the Court for [the child’s] benefit.”
The logic which relates the mother obtaining affidavits to the child attending junior rugby is not clear. The sporting commitments arranged by the father during the time that the child spends with him would not be a factor that would require a reconsideration of the parenting orders.
Father’s Second Affidavit Filed 7 March 2008
In his second affidavit received by the Court on the 7 March 2008 the father set out further issues which he said are relevant to the determination of the Rice and Asplund test.
He referred to the mother’s “history of 16 contraventions and further recovery (deliver up) orders as being the main compelling reason to relitigate this matter”.
Annexed to that affidavit is a copy of the transcript of the hearing before Justice Burr on the 23 November 2007. The comments made by Justice Burr on that occasion were merely comments. They do not have the character of a decision or reasons for judgment. I do not treat the comments of another Judge at First Instance as any authority.
The father argues in paragraph 8 of his last affidavit:
“The final consent orders of 30th October 2003 only dealt with the mother’s application to totally discharge all contact and not the other issues in the fathers (sic) amended application before the court.” (refer 8(e)).
In fact the Response to the initiating Application (Form 3A – document 24) filed by the father on the 3 December 2002 sought the dismissal of the mother’s application paragraphs 1 to 5 inclusive. It also sought orders concerning the preparation of a family assessment in relation to the “present resident/contact regime” and to include the father’s “intended fiancé”. By a Form 8A Response filed by the father on the 27 May 2003, the father again sought that the family assessment include an observation of his fiancé interacting with the child.
In paragraph 4 of that Response for Final Orders the father also sought:
“That the Respective Family Assessor do also assess the said child for inclusion in the South Australian Department of Education Ship Programme (student of high intellectual potential).”
By amended Form 3A Response filed on the 3 October 2003 the father sought numerous orders, including that the mother and father have joint responsibility for the “long term care, welfare, development, education and choice of school of the child of the relationship”, that the child reside with the mother and the father have contact in specific detailed time during school terms on each alternate weekend and other detailed specific special occasions and conditions.
On page 7 of the final orders sought by the father in October 2003 is paragraph 16 which includes reference to travelling interstate or overseas with the child.
Amongst the other orders sought was paragraph 24, headed “Attendance at School Events”:
“(24)That EACH PARENT shall have the right to attend at the said Child’s kindy, preschool and/or school, (and other school venues in respect of social, sports and activity type events) for events that parents are normally invited to participate in such as, but not limited to, the following:-
a)Sports days, sporting events, school concerts, school plays, quiz nights, school fundraisers, classroom visits, classroom reading, religious Roman Catholic ceremonies, parent teacher nights (or days), school excursions and school camps and any like event.
b)Furthermore should the child’s attendance be required for such event then the Respondent Mother shall facilitate the child’s attendance at such event. Further, each parent shall have the respective right to talk to greet the child, to hug the said child, to talk to the said child for a reasonable period of up to ten minutes, and say goodbye to the said child free from interference from the other party and their respective partners, families and relations, at such event aforesaid.”
Paragraph 28 of the father’s Form 3A Response filed on the 3 October 2003 under the heading “Assessment for ‘Ship’ Program” says:
“(28)That subject to any court order and/or the recommendations of any educational psychologist, and/or any of the said child’s school teachers/tutors/directors/principals or like professional, and/or with the Father’s written permission, the Mother shall facilitate the said child’s ongoing assessment in any SHIP, (Student of High Intellectual Potential) OR SIMILAR programme(s) and attendance at any appropriately recognised school or place of learning (as recognised by the Department of Children’s Services (DECS) or other suitable body), for the purposes of assisting the said child develop his maximum academic, social and mental health potential.”
Paragraph 30 of the father’s Form 3A Response filed on the 3 October 2003 under the heading “The [Child’s] School Assignments” says:
“(30)That EACH PARENT shall be responsible for ensuring and encouraging that [the child] completes his school homework, assignments, projects or other like exercises, on time, and to the best of [the child’s] abilities prior to any deadline prescribed by any of [the child’s] school teachers.”
Paragraph 35 dealt with the question of change of surname and says:
“(35)That the surname of [the child] be changed from [UPPAL] to [HUNTER-UPPAL], or in the alternative, to {UPPAL-HUNTER].
Paragraph 37 to 44 dealt with the issue of overseas travel.
The father was therefore pressing these issues before the Court in early October 2003.
The order of Federal Magistrate Mead of the 30 October 2003 was a consent order which dealt specifically with issues concerning the father’s contact with the child in particular detail and other orders concerning interstate travel, the father’s right to obtain copies of reports and attend school functions.
Specifically paragraph 12 of that order provided:
“12.That all applications be dismissed and removed from the Pending Cases List.”
The father was incorrect therefore when he asserts that the final consent orders did not deal with the other issues in his application before the Court. They were dismissed.
As recently therefore as October 2003 the parties had raised before the Federal Magistrates Court issues concerning the child’s possible gifted status, overseas travel, issues of schooling and change of name.
On the 1 June 2005 when Federal Magistrate Mead made orders in relation to the contraventions by the mother, these included paragraph 4:
“4.That upon the oral application of the father made to the Court this day and by consent:
a)the mother be restrained and an injunction is hereby granted restraining her from attending at [the child’s] school on any days on which the father is due to take contact with [the child] (save for delivering him to school at the commencement of the school day and collecting him therefrom following upon the conclusion of the father’s contact) other than for the purpose of attending for events on which parents are normally invited to participate including but not limited to Sports Day, concert days, plays, quiz nights, fundraisers, sporting events, classroom visits, classroom reading, parent/teacher interviews, excursions and camps;
(b)the mother ensure that [the child] attends at school for the duration of the school day on all days on which the father is due to take contact SAVE AND EXCEPT in the case of a genuine medical emergency to be authenticated by the production of a medical certificate to the father within four (4) days of the said occurrence;”
The father alleges that the mother has contravened the orders in relation to the child spending time with him on the child’s birthday in 2007 and in February 2008. He also alleges that she failed to provide make-up contact on the 26 July 2007. The father further alleges contraventions of the orders in relation to telephone contact on eight occasions ranging from the 21 February 2008 back to the 19 October 2006. He also alleges that the mother has interfered with his telephone contact with the child in October 2006.
The father asserts that the mother has also breached the order restraining her from attending at the child’s school on any days on which the father is due to take contact with the child, other than for the purposes of attending for events on which parents are normally invited to participate …(paragraph 4(a) of the order of the 1 June 2005).
The father alleges that the mother has participated in volunteer work as a coach at the school. The father also alleges that the mother has contravened the orders of the 6 September 2007 which prevent the parents from discussing Court proceedings or child maintenance issues. The father alleges the mother has breached this order because he alleges that the child has commented about his mother saying that his soccer club fees are too expensive and “Mama can’t afford it”.
The allegations of the contraventions are at this stage, allegations. It would be necessary to hear the evidence, and in particular to determine the facts and consider whether the mother had reasonable excuse for failing to comply with the orders if she was found to have contravened them.
The father alleges that the contraventions are relevant on the basis:
“38.I say I would rather have the matter of the mother’s influence on the child fully explored to remove the source of the problems in these proceedings, rather than formally file the contraventions, as in the event of further finding of contraventions the court may have no option but to consider a term of imprisonment which may also impact on [the child’s] long term well being.”
The father does not explain what he means by the mother’s influence on the child or the ‘source of the problems in these proceedings”.
The allegations of the contraventions need to be seen in the context of the history of this matter. The conflict between the parties has continued since the child was a very young child (the first proceedings being commenced in 2001 before the child was three years of age). The Family Law Act acknowledges and recognises parents’ responsibilities to agree upon matters relating to the welfare of their children. In particular, one of the objects of the part of the Act concerning children in Section 60B is:
“to ensure that the best interests of the children are met by ensuring that parents fulfil their duties and meet their responsibilities concerning the welfare and development of their children.”
In sub-section (2) one of the principles underlying these objects is discussed as “(d) parents should agree about the future parenting of their children”.
It is accepted that in some cases the contravention of an order of the Court by one of the parents may well bring about new circumstances. The question to be determined is whether the contraventions alleged establish a change which will be sufficient to establish the threshold test.
In Paskandy and Paskandy (2005) 33 Fam LR 509 the Full Court of the Family Court of Australia (Bryant CJ, Kay and Warnick JJ) heard an appeal from Her Honour Justice Penny.
Her Honour then delivered a judgment in which she concluded that there were no changed circumstances which would justify a re-hearing of the issue of the residence of the child or the issue of who should be responsible for his long term care, welfare and development (paragraph 27 of the Full Court judgment). The Full Court said under the heading “Re-opening the Residence issues”
“37.The principles to be applied by a judge when dealing with an application to change an existing parenting order were well settled by the Full Court in the decision of Rice and Asplund (1979) FLC 90-725; 6 Fam LR 570 where Evatt CJ with whom Pawley SJ and Fogarty J agreed said at FLC 78,905-78,906, Fam LR 572-573:
“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 an earlier custody order. To do so would be to invite endless litigation for, as Mr Broun submitted, 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 (passage quoted in Hayman, FLC 75,680). 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 way they apply and the factors which will justify the court in reviewing a custody order will vary from case to case.
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. The court must apply the principles of s 64 and weigh up the factors for and against the proposals of each party, having regard to the welfare of the child as the paramount consideration. One of these factors is the length of time the child has been in a particular situation. Another is any earlier decision of the court, and the reason for that decision. The possible advantages or disadvantages of a change in custody need consideration along with all the other usual factors. While the court should give weight to any earlier decision and, in particular, to any findings of fact, the judge is not bound by the earlier court’s assessment of the parties or views as to the best interests of the child. These are matters which cannot be determined by any fixed or absolute standard.”
See also Radford v Alpe (1985) FLC 91-622, 10 Fam LR 135; Bennett (1991) FLC 92-191, 14 Fam LR 397; Saad (1993) FLC 92-332, 16 Fam LR 55; D and Y (1995) FLC 92-581, 18 Fam LR 662.
38.We would agree particularly with the views expressed in Bennett that it is a matter of discretion as to whether a judge embarks upon a full hearing of a matter or determines the threshold question as to a change in circumstances. In this case in our view it was clearly open to her Honour to view the ongoing applications relating to the issues of residence and contact as part of the issues that had already been decided in the proceedings that were conducted in 2000. The evidence before the Court was that although the child’s education had been chronologically delayed there were appropriate explanations for that delay and the unchallenged evidence was that the child was now progressing satisfactorily. There was nothing to suggest that a change of residence would in any way enhance the child’s future education nor would his education be likely to be further detrimentally affected by decisions made by his mother whilst the child remained in her care.
39.There was no expert evidence to support any assertions by the father that the child’s health was suffering in the mother’s care. The difficulties relating to contact enforcement had been envisaged by the trial Judge in the 2000 proceedings and yet she had made a residence decision in favour of the mother fully cognizant that such difficulties would arise. As her Honour indicated the continued presence of the difficulties did not amount to any new fact or circumstance.
40.Further, it was open for her Honour to indicate that notwithstanding there had been continued difficulties they were not of such a magnitude as to justify a change in the existing situation.” (My underlining).
Many of the difficulties to which the husband now refers are similar to the issues which were before the Court prior to the consent orders in October 2003.
It is important to assess whether any of the contraventions or the series of alleged contraventions are of a nature which suggest that there has been a recent or new adverse impact upon the child’s relationship with one of the parents and whether the conflict between the parents and the ongoing hostility affects the welfare of the child to the extent that further litigation is warranted. The opposite, (which would suggest that the child’s welfare and best interests would be met by an end to the litigation), also needs to be considered.
The conflict between the child’s parents and their inability to negotiate and compromise are, regrettably, conditions which are not new. The nature of the alleged contraventions are of a similar type to previous allegations and contraventions but are not alleged to have had an affect upon the relationship between the child and his father which would warrant more litigation.
In the father’s Outline of Case filed on the 5 October 2007 the father refers to certain matters which “could not possibly have been foreseen”. He suggests that these indicate a change of circumstances which would justify re-litigation. Amongst these are that it “could not possibly have been foreseen that the mother would keep the child from school on so many occasions or that the child would be ill so often in the mother’s care.”
These matters and many of the other matters raised by him are matters which he says “could not have possibly been foreseen”. Even if established, these factors would readily fall into the category of consequences which are no more than those which would occur with the passage of time or in the usual course of human activity, particularly bearing in mind the existence of the poor relationship between the father and mother for a considerable period of time since the middle of 2001.
“Birth of [the Child’s] Cousin in Germany”
This fact is asserted in support of the child being permitted to travel overseas. The father says his sister (the child’s Irish aunt) who lives in Germany, gave birth to a second child in September 2007. He refers to his other sister who was then due to give birth to her first child in November 2007. The father seeks to take the child to Convention countries, Germany and Ireland.
“Death of [the Child’s] Step-Grandmother”
The father says that this event occurred on the 15 August 2007 and in paragraph 75 says:
“75.I say that [the child] had a very good relationship with [the step-grandmother] and was shocked and deeply saddened by her death. I say this was very significant to [the child] in terms of his now realising that his grandparents will not live forever and may die at any time.”
He then says in paragraph 77:
“77.I say it is significant that my wife […], who is a secondary high school teacher, who was previously unable to travel with us as she was caring for her terminally ill mother will now be able to accompany us on our trip away.”
The father has relatives in Ireland and Germany. The father wishes to travel with the child overseas to visit family. He relies on the fact that he is now an Australian citizen and has secured permanent employment. The husband and his present wife have purchased a home. His present wife is a school teacher.
Section 60B(2)(b) provides that one of the principles underlying the objects (except when it is or would be contrary to the child’s best interest) are that children have a right to spend time on a regular basis with and communicate on a regular basis with both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives). Sub-section (e) provides that children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
The orders made in 2003 were made when the child was five years of age. The child will be 10 this September.
Whilst the question of International travel was previously raised by the father in 2003, there have been significant and substantial changes which relate directly to the consideration of overseas travel for the child, namely: the child is now 10, his ability to separate from his mother and benefit from overseas travel are factors which should be considered again. The father is now an Australian citizen employed in Australia, married to an Australian teacher and owns real estate in Australia.
It is not therefore appropriate to summarily dismiss the father’s application so far as it relates to International travel. That application should be determined after a full hearing taking into account these matters and all other factors relating to the child’s best interests.
Conclusions and Summary
At the time when the first orders were made in August 2001 the child was almost three years of age. The father was working in South Australia. He was not then a permanent resident, but had made the necessary application. He was living in rented accommodation and intending to purchase a property. When the orders were made on the 30 October 2003, the child was then five years of age. The specific orders provided for detailed regular alternate weekend contact, school holidays and special occasion contact, including liberty to each of the parties to travel interstate with the child and otherwise dismissing the applications by the father seeking orders relating to travel overseas, the child’s possible gifted status and change of name.
The father was by this time engaged to his now wife whom he planned to marry.
I have given careful consideration to the issues raised by the father, the allegations he has made and considered these in the context of the previous litigation.
The material on the Court file and the arguments presented by the father do not establish that there have been circumstances which require the Court to consider afresh matters relating to the welfare of the child. Rather the evidence indicates that it would be in the child’s best interest if these proceedings are summarily dismissed in order to protect the child and his family from more litigation. These are summarised as follows:
143.1Paragraph 1 of the father’s application filed on the 28 March 2007 (That both parents have equal shared parental responsibility of the child (excepting education of the child)) and paragraph 2 (the father have sole parental responsibility for the child’s education).
143.1.1The allegations made by the father concerning the difficulties the child has been experiencing at school and the issues concerning the choice and type of school are not significant and substantial to the extent that they indicate any necessity to change the current orders which provide for the parties to have equal shared parental responsibility.
143.2Paragraphs 3 and 4 of the father’s application (the surname of the child be changed from UPPAL to HUNTER-UPPAL, or in the alternative, to UPPAL-HUNTER.) The issue of the child’s surname was before the Court previously and was dismissed by consent. There is no significant or substantial change in circumstances that would not fall within the usual description of passage of time and usual course of human activity.
143.3The issue of the child’s passport has been dealt with by consent orders made in Paragraph 3 and 4 of the order of 6 September 2007.
143.4Paragraph 9 of the father’s application. The issue in relation to the child’s haircuts has been dealt with by consent orders (paragraph 5 of the order of 6 September 2007).
143.5 The issue that the father have extra time with the child. The father sought that the orders made on the 30 October 2003 be varied to provide that the child spend time with him from the conclusion of school on Wednesday (rather than Thursday) until the conclusion of school the following Wednesday (rather than the Monday). This is in fact shared care. The information provided by the father and the allegations he has made are not significant or substantial. The facts alleged are not new factors of a type which would warrant re-opening the issue of the time the child spends with the father.
143.6Paragraph 11 of the father’s application on the issue of injunctions has also been the subject of consent orders made at paragraph 6 on the 6 September 2007.
143.7Paragraph 12 of the father’s application on the issue of “future schooling/education” and paragraph 13 “the mother be responsible for ensuring and encouraging that [the child] completes his school homework, assignments, projects, etc”. The father alleges that some time ago the mother changed the child’s school to the G Primary School without his consent. The father has been involved in ongoing consultations with the staff at the G Primary School. He has not presented evidence which indicates that this change in circumstances would require a re-consideration of the orders made previously. The child’s education and schooling raises issues which may require the parent’s attention but do not warrant further litigation.
143.8Paragraph 7 and 8 of the father’s application. As discussed in paragraph 131 to 138 there are sufficient new circumstances which permit further consideration of the father’s application for the child to travel overseas.
CUMULATIVE BASIS
As Collier J said in King and Finneran (Supra) consideration must be given to whether a change in circumstances can be established on the basis of factors on a cumulative basis.
At paragraph 62 he said:
“62.What is required is that a trial judge be satisfied that there has been demonstrated such a change that it must be a matter of concern and requires the court to examine the situation of the children afresh. There is no assistance to be gained from the authorities as to whether or not this can be done cumulatively. The law at present requires that there b be a change such as to require re-litigation. That change can be made up of component parts or could rely on one single but major change. However, a cumulative basis for change in circumstances cannot be made simply by weight of numbers of the changes alleged to have occurred.” (My underlining)
Many of the issues raised by the father highlight that, even with the passage of time and the child’s ongoing development, his parents have not been able to improve the quality of their relationship as parents. This is the cumulative effect of many of the father’s allegations. This poor relationship has existed for a long time.
Conclusion
I have considered whether the cumulative effect of the circumstances alleged by the father warrant re-consideration of the parenting orders (even though I have determined that each of the individual changes, or matters which the father alleges could not have been foreseen, are not significant or substantial).
I am satisfied that apart from the issue of overseas travel, the circumstances and allegations raised by the father, whether considered individually or on a cumulative basis, are not sufficient to warrant re-opening of the issues.
I certify that the preceding one hundred and forty eight (148) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe
Associate:
Date: 18 June 2008
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