In the Marriage of Paskandy
[2005] FamCA 755
•12 August 2005
[2005] FamCA 755
FAMILY LAW ACT 1975
IN THE FULL COURT
OF THE FAMILY COURT OF AUSTRALIA Appeal No WA21 of 2004
AT PERTH File No PT5008 of 1997
BETWEEN:
JP
Appellant Husband
- and -
JP
Respondent Wife
REASONS FOR JUDGMENT
CORAM: BRYANT CJ, KAY & WARNICK JJ
DATE OF HEARING: 4 July 2005
DATE OF JUDGMENT: 12 August 2005
APPEARANCES: The Appellant Husband in person.
The Respondent Wife in person.
P and P
EA21 of 2004
CORAM: Bryant CJ, Kay & Warnick JJ
DATE OF HEARING: 4 July 2005
DATE OF JUDGMENT: 12 August 2005
Catchwords: APPEAL – CHILDREN – RESIDENCE – attempt to vary orders made after a contested hearing in 2000 - summary dismissal by trial Judge upheld - it was clearly open to the trial Judge 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 conducted in 2000 –open to the trial Judge to find there was no evidence to justify a change in residence from the mother to the father.
APPEAL – CHILDREN – Leave to travel outside of Australia - wife entitled to remove the child from the jurisdiction once every two years without notice – open to the trial Judge to make the order considering the desirability of avoiding any further proceedings between these parties, and the proven conduct of the mother in returning the child to the jurisdiction on several occasions already – mother to give the husband three months notice in writing of any proposed travels to enable arrangements are made for make-up contact pursuant to the order.
APPEAL – PROPERTY – S79A– husband on a disability support pension asserted it was impractical for him to comply with 1997 order to pay the wife $10 000 – further asserted the wife’s non-compliance with contact orders was a basis for discharging the property order – appeal dismissed – insolvency not a basis for setting the order aside - the failure to comply with a contact order cannot be said to be a failure to comply with “an obligation imposed on the person by the order” when referring back to the property order.
APPEAL – VEXATIOUS LITIGANT - asserted it was inappropriate for the trial Judge to restrain the husband from bringing any further proceedings without leave of the Court first had and obtained – appeal dismissed - it was open for the trial Judge to limit the parties to commence further proceedings without first obtaining the leave of the court.
APPEAL – SPECIFIC ORDER - asserted there were no changed circumstances or adequate reasons given as to why it was appropriate to discharge the order requiring the wife to keep the husband advised of her place of residence – appeal allowed - there was no proper basis for discharging the order.
This is the husband’s appeal against orders made by Penny J in the Family Court of Western Australia on 18 November 2004. The orders appealed against dismissed the husband’s claims to set aside some earlier property orders and vary an existing residence order so that the parties’ son could live with each parent on a fortnight about basis. The appeal also concerned an order that the mother be permitted to take the child out of Australia once every two years and an order restraining either party from bringing proceedings without prior leave of a judge.
Background
The parties are the parents of M born in 1996. The husband is Hungarian. He arrived in Perth in 1980. The wife is also from Hungary. She and the husband commenced corresponding after the husband placed an advertisement in a magazine in Hungary seeking a wife. At that time the husband was still living with his then de facto wife, D. There is one child of that relationship, R, now aged 16 years.
The wife arrived in Perth in June in 1995 and the parties married some three months later. By Christmas 1996 the marriage was an unhappy one. In August 1997 the wife left the matrimonial home taking M with her. She did not advise the husband where she was going, nor did she make arrangements for him to have contact with M.
There was a trial in August 1998 that dealt with residence and property matters. The mother sought to relocate to Hungary. The matter was decided by Anderson J who dismissed the mother’s application for relocation but granted her a residence order. His Honour made property orders requiring the husband to pay $10,000 to the wife by equal monthly instalments of $500. The wife sought to appeal the orders made by Anderson J and the outcome of that appeal is reported at (1999) FLC 92-878; 25 Fam LR 607. The Full Court dismissed the appeal relating to the payment of the property orders by instalment but directed that the applications for final parenting orders be remitted for hearing by a judge of the Family Court of Western Australia with priority.
The matter ultimately came on for a rehearing before Penny J. On 22 December 2000 after a trial that had lasted for several days, her Honour made orders to the effect that M reside with his mother who was to be responsible for the day to day and long term care, welfare and development of the child. Her Honour made orders for contact each alternate weekend from 5.00pm Friday until 5.00pm Sunday (or Monday in the event of contact being a long weekend), for contact on special days and for additional contact during mid-term school holidays. The orders pronounced in December 2000 contain several other restrictions on the parties including:
“10. The wife do at all times keep the husband informed regarding the residential arrangements made by her for the child.
…
15.The mother have leave to take the child to [east-central Europe] on the 25th December 2000 and return on the 17th February 2001.
16.A Registrar of this Court shall be permitted to sign a passport application in lieu of the husband.”
The husband was apparently aggrieved by the orders made by Penny J and sought leave to appeal them out of time. The appeal did not proceed.
Conflict continued
Between September 2000 and early 2003 the litigation between the parties continued with the husband filing several enforcement applications and the wife filing applications to enable her to take M on overseas visits.
Eventually the wife filed an application seeking to curtail the husband’s contact by limiting it to one Sunday a month. She also filed an application that she be able to take M overseas for the 2003 Christmas holidays and an application that sought the following orders:
“1.Mr [JP] provides details of all the medical practitioners, specialists and other medical professionals whom he consulted/visited during the past three years.
2.The Honourable Court issues a subpoena to get detailed and correct information about Mr [JP’s] state of health and financial situation.
3.The Honourable Court reduces contact (One Sunday per month throughout the year from 9:00am until 5:00pm) for a period of one year to allow Mr [JP] to recover and gain a good state of health and financial position enabling him to provide higher level of care while [M] is on contact visit at his place.”
The husband’s response to that application was filed in April 2003 and sought the following orders:
“1.The applicant’s application be dismissed in relation to my medical records.
2.That the unspecified order sought relating to a subpoena be dismissed.
3.That the applicants (sic) application relating to reduction of contact be dismissed.
4.…that any future application filed by the mother is to be a valid application only, if it carries a solicitor’s certificate of merit, with the issuing solicitor having to canvass the possible opposition/defence to application prior to signing it.
5.That the respondent father file a more detailed Form 3a [sic] with supporting affidavit(s) of witnesses, if the mother’s application passes interim stage.
6.Injunction to stop mother from sending registered mail.
7.To order the filing of an application under section 79A relating to property settlement issue.
8.Make orders that the mother attends the Parents Forever course as a matter of priority.
9.Declare the mother a vexatious litigant.
10.Order her full mental assessment.
11.Order the father to file an application aiming to clear up child health, development, residency, parental responsibility and related issues.
12.To order the mother to make the child available for medical/psychological testing relating to matters agreed upon during the pre-trial conference.
13.To make orders that override all privacy legislation allowing the father to access all information relating to the child.
14.That the mother’s applications dated the 12th of February and 4th of April be dismissed.”
That application was subsequently amended to include a request for an order that the property issues be transferred to a Court of Common Law or a Court of Equity such as the Supreme Court and to include the following:
“To give detailed, precise, non misinterpretable definition to existing contact orders and specify notice arrangements the mother has to comply with if exercising her right as described in 4.1(b) of the orders made on the 22nd day of December 2000 [should the child have any special occasions relating to performance for music or dance on a contact weekend, then contact shall be suspended for a maximum of five times per year and the husband shall have make-up contact the following week]”
and
“To make specific orders stating that the factual best interest of the child is to override any possible technicality and/or shortcoming in law and/or practice direction.”
The October 2003 hearing
On 27 October 2003 the various applications came on for hearing before Penny J. Both parties appeared on their own behalf.
The mother indicated that she was persisting with her application to cut contact back to one day per month on the basis that it was her observation that the husband could not possibly be healthy enough or financially sound enough to be able to look after M for any further period. Further she complained that the child did not want to go on contact.
For his part the husband sought the following orders:
“1.That the child reside with the father and he be solely responsible for the day to day and long term care, welfare and development of the child.
2. The mother have contact with the child as follows:
(a)from 5 pm Friday for 14 days to 5pm the fortnight Friday starting e.g.: the 22nd of August 2003 (this way Mother’s Day the child is with the mother and Father’s Day the child is with the father) and two weeks later from 5pm Friday for 14 [days] to the fortnight Friday again etc. following through in fortnightly change over patterns, so that contact periods can be mapped out well in advance. E.g.:The mother’s next contact period after the 22nd August would commence on the 5th of September.
(b)the fortnightly contact/residency pattern modified for the duration of the school holiday only and only within the holiday period, to give the child equal time with his parents during the school holidays
(c)mother’s contact suspended (upon one month notice in writing) for the maximum of four days when the child goes on holiday more than 1000kms away from Perth and such contact to be made up during the between school years break
(d)the parent with which the child commences to spend time with is responsible for collecting the child
(e)child does not go on contact unless the mother’s actual residential address is known to the father and verified
(f)any factual contravention, is to be automatically penalisable at a rate of multiplying the time lost by three and penalty exercised during school holidays
(g)the 5-6 contact weekends with the father, the child has been short changed with in 2002 and 2003 are to be made up at times of the father’s choice, having to give at least thirty days notice in writing.
3.The 1998 property settlement order to be discharged. Alternatively leave be granted to proceed with application based on section 79A(a), (b) and (c), alternatively transfer the matter to the Supreme Court.
4.Orders to be made that any future application by the mother is to be a valid application only if it contains a solicitors certificate of merit.”
Her Honour heard evidence from the parties on 27 October 2003 including accepting into evidence by agreement a letter from M’s teacher. She then reserved her decision.
On 28 July 2004, judgment having not yet been delivered, the husband sought to reopen the case to put some material before her Honour relating to matters that had occurred since the last hearing. Her Honour granted the husband leave to file an affidavit relating to any changes in the child’s health since October 2003 and any difficulties associated with contact since October 2003. The mother was invited to file an affidavit in response.
In the husband’s affidavit filed 2 August 2004 he deposed:
“…There have been 14 Form 49 applications to date in total, with 7 guilty verdicts, 2 Form 49 applications falling in the period after October 2003 with one guilty verdict. The mother is now on a bond (for a second time, without ever having to pay for the first bond after re-offending) for a year.”
He complained that there had been contact difficulties on at least four occasions since the last hearing. He further deposed that in his view the child was sleep deprived/malnourished, iron deficient and overstressed in the mother’s care. He purported to demonstrate this with photographs that he had taken of the child. No medical evidence was called.
He further asserted that the child’s mental health was being damaged by the stories the child brings from the mother’s home.
In her affidavit in response the mother offered explanations concerning the alleged difficulties with contact and then launched into an attack upon the husband and his lifestyle, suggesting that the husband’s motivation and continuing litigation had nothing to do with the welfare of the child but was a personal attack upon her for having left him several years earlier.
The judgment
Her Honour commenced her judgment by first setting out some of the history that we have already made reference to. She referred back to her earlier judgment in December 2000 saying:
“16.At the trial in 2000, the wife's position was that the husband's contact should be severely restricted, particularly until [M] was toilet trained. On the day of trial the wife agreed with the proposals put forward by the Child Representative, allowing for overnight alternate weekend contact as had taken place in the past.
17.I dealt with each of the concerns raised by the husband in that judgment in some detail. I determined that it was in [M’s] best interests to continue to reside with the wife. I found that as it was obvious the parties were rarely able to agree on anything and in those circumstances the wife should be solely responsible for the long term care, welfare and development of [M]. I also gave the wife leave to go to Hungary with [M] for a holiday and for [M] to have make up contact with the husband upon his return. I then adjourned the application for a period of six months to enable monitoring of the parties' compliance with the orders and to see whether there was any fine tuning required in relation to the contact orders.”
She then turned her attention to dealing with the competing parenting applications saying:
“23.The husband is now seeking to re-litigate the issue of residence and the wife is seeking to re-litigate the issue of the husband's contact. These matters have already been the subject of a trial in 1998, an appeal to the Full Court in 1999 and another trial in 2000. Before considering these applications I must determine whether there is a substantial change in circumstances to warrant a re-consideration of the issue of the residence and contact [M] should have with the non-resident parent: Rice and Asplund (1979) FLC 90-[725] and Zabaneh and Zabaneh (1986) FLC 91-766.
24.The husband stated at trial the changed circumstances which would warrant a review of the residence for [M] were:
•his development, which was previously found to be age appropriate, is not. He is in grade 1 at school, and should be in grade 2;
•the wife has contravened the contact orders on a number of occasions;
•the wife does not encourage [M’s] relationship with the husband.”
Her Honour noted the evidence of the school teacher saying:
“26.Mrs [G], [M’s] grade 1 teacher last year, provided a report as to [M’s] progress. In that report she describes him as ‘a happy and enthusiastic student; reliable and responsible’. She makes no mention of any concerns she has in relation to [M’s] physical presentation. If [M] was sleep deprived, over stressed and malnourished it is highly unlikely that he would be presenting as a happy and enthusiastic student in the classroom.
27.I have no evidence as to the significant of any rings around [M’s] eyes. I am satisfied there is no health issue which is significant enough to warrant the re-opening of the issue of [M’s] residence.”
She concluded from that evidence as follows:
“29. I am not at all satisfied that [M] is not developing properly at school. The fact that he is one year behind at school does not indicate he is educationally at risk, and certainly there is no cause for concern indicated in Ms [G's] report. I do not believe it is a circumstance which would warrant the re-opening of the issue of residence.”
Her Honour said that the assertions of continued contact difficulties did not raise any new issue:
“30.The husband also complains about the number of times the wife contravened court orders in relation to contact. Unfortunately, this conduct of the wife is not new. The contraventions have been dealt with by magistrates and the wife has been punished. She is currently on a bond. The wife's position, as I have stated previously, has always been to seek to reduce the contact the husband should have with [M]. While I do not condone this attitude I am not satisfied, at this stage, that the contraventions of contact orders by the wife are such that they warrant a re-opening of the issue of the residence of [M].”
She examined the husband’s proposition that there should be a shared parenting arrangement with equal time spent with each child and was particularly critical of the husband’s view that it might be appropriate for the child to attend two different schools.
Her Honour said:
“34.I cannot comprehend how the husband could even suggest that [M] undertake such a routine as to attend a different school each two weeks, particularly when he alleges he is already a year behind in his schooling. To understand the proposal made by the husband the comments made by Dr [W] in his report for the trial in 2000, and set out by me in my judgment at that time, are helpful:
’Dr [W] described the husband as a person “who has almost no emotional empathy. His stated position is clearly one of logic and he significantly devalues emotional process.” Dr [W’s] view was that while the husband could provide for the child's basic needs, he would not be able to meet the child's emotional needs due to his own poor level of ability to relate at an emotional level.’”
Her Honour finally concluded that there were no changed circumstances that would justify a rehearing of the issue of the residence of [M] or the issue of who should be responsible for his long term care, welfare and development.
She was equally dismissive of the wife’s application to vary contact, saying:
“I am satisfied there is nothing new raised by the wife that would warrant a new hearing in relation to the issue of the contact that [M] should have with the husband.”
Her Honour next dealt with the husband’s s 79A application seeking to set aside the property order that required him to pay $10,000 by instalments of $500 per month over 20 months. The husband sought to argue that since he was now on a disability support pension he could not meet his liabilities under the order and that it was impracticable for the order to be carried out.
He further sought to argue that as the wife had not complied with the contact orders it was just and equitable that the property order be varied. Her Honour simply dismissed the s 79A application on the basis that none of the grounds pursuant to s 79A(1) had been made out.
Under the heading “Vexatious Litigant” her Honour turned to the husband’s application that the wife be restrained from bringing further applications without a solicitor’s certificate of merit.
Her Honour also made reference to the wife seeking an order that:
“the father is a constant litigant as implied by the Honourable (sic) Tolcon in June 2001 and therefore liberty be taken from him to lodge any further application.”
Her Honour made reference to the provisions of s 118 of the Family Law Act and rule 11.04 of the Family Law Rules. She detailed 11 applications brought by the wife between the period of July 1999 to September 2003 and 11 applications filed by the husband between September 1997 and May 2002. She said further:
“57.In addition to each of the applications filed by the parties, they have responded to applications filed by the other party and as a result they have filed numerous Forms 7A, 8A and 3As. There has rarely been a time in the last seven years when there has not been an application before the Court.
58.The parties have attended in this court [sic] since the instigation of proceedings in 1997 on more than 80 occasions, almost all of these relating to some dispute in relation to the contact or residence of [M], or in relation to contravention applications, mostly relating to the fact that [M] was not made available for contact.
59.Unfortunately for [M], he is living in a war zone. Neither of his parents have his best interests at heart, although both profess to. The husband is determined to have [M] reside with him on terms he thinks are appropriate, that is part time. The wife is determined that the husband's contact should be reduced to a minimum. They are both prepared to use the Court system to attempt to wear the other party down and get their way.
…
63.In my view, the wife's application seeking to reduce the husband's contact to one day per month was instituted without reasonable grounds and, in my opinion, was brought so as to harass and annoy the husband.
64.In relation to the husband's application and response whereby he sought to seek residence of [M] on the basis that he should move residence each fortnight, it was brought without reasonable grounds and for the purpose of harassing and annoying the wife. Having determined that the applications of both the parties were vexations, I need to consider whether the conduct of the parties has been such that I should inhibit them from instituting further proceedings without leave of the Court.
…
67.Apart from taking into account the harassing nature of the proceedings made by the parties against each other, I must also consider whether the applications have amounted to an abuse of process of the Court. As I have stated previously, these parties have had more than 80 attendances in Court relating mainly to issues surrounding [M]. Unrestricted, this Court is merely providing a venue for these parties to publicly exhibit their loathing for each other. I am satisfied that the arrangements in place at the present time for [M] are perfectly acceptable and there is unlikely to be any change in those in the foreseeable future. In my view, there should be an order restraining both parties from bringing further proceedings in this Court without leave of the Court, except in relation to contravention applications or an appeal from this decision.”
Her Honour then turned to two further issues. She dealt with the wife’s applications that Order 10 of the orders made 22 December 2002 be discharged as follows:
“68.The wife also seeks to be relieved of the obligation to provide the husband with the details of residential address for herself and [M] as ordered in 2000. I am satisfied that the arrangements for [M] are appropriate. The wife has now repartnered and has a child by that relationship. She wishes to protect her privacy. I can see no reason why the husband needs to know where [M] is living other than to exercise some control. The wife should have the comfort of knowing the husband is not likely to attend at her premises. I am satisfied that paragraph 10 of the orders made on 22 December 2002 should be discharged.”
and with the wife’s application that she be entitled to take the child off shore without further application by saying:
“69.The wife also has before the Court an application that she be able to leave take [M] on a holiday to Hungary. The wife has, on a number of occasions, taken [M] away on a holiday to Hungary. He has always been returned. I am satisfied that it is in [M's] best interests that he be able to maintain his contacts with the wife's family in Hungary. In my view, the wife should have leave to take [M] overseas each two years for no more than four weeks, and the husband should have make-up contact for the contact periods he missed over that period.”
The appeal
The husband filed a Notice of Appeal containing nine grounds. The husband was unrepresented and the grounds drawn by him are not easily understood nor do they necessarily provide appropriate particulars of assertions raised. We are, however, conscious of the obligations of an appellate court as spelt out in Neil v Nott (1994) 121 ALR 148, (1994) 68 ALJR 509 where the High Court (cor Brennan, Deane, Toohey, Gaudron and McHugh JJ) said :
"…A frequent consequence of self-representation is that the court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy…"
As we understand the grounds of appeal they really deal with five matters:
1. Did her Honour err in summarily dismissing the husband’s application for an alteration of her earlier residence and contact orders?
2. Was it appropriate for her Honour to restrain the husband from bringing any further proceedings without leave of the Court first had and obtained?
3. Were there any changed circumstances or adequate reasons given as to why it was appropriate to discharge the order requiring the wife to keep the husband advised of her place of residence?
4. Was it appropriate to make the order enabling the wife to remove the child from the jurisdiction once every two years without notice?
5. Did her Honour err in dismissing the husband's application pursuant to section 79A, to set aside the property orders?
Reopening the residence issues
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.
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.
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.
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.
The order that dismissed the husband’s application that sought to vary the existing residence arrangements and put into place a shared parenting arrangement were made in the exercise of the Judge’s discretion. An appellate court can only interfere in the exercise of that discretion if it can be demonstrated that the judge has acted upon wrong principle, has failed to properly make findings in accordance with the evidence or has reached a result that is clearly unjust. In our view none of those matters have been demonstrated by this appeal.
Permission to travel
One of the applications that the wife had returnable before the trial Judge sought an order:
“That the Honourable Family Court of WA grant my son and me leave for the purpose of overseas holiday to see our family for the period specified in the attached affidavit of mine.”
The affidavit filed 17 September 2003 sought an order that the wife be given permission to travel with the child from 20 December 2003 until 21 January 2004. The wife deposed that she had already traveled overseas on four occasions with the child to Hungary to visit her family.
In the appeal before us the husband acknowledged that on each occasion that the wife had sought to travel she had brought an application which he had opposed. On each of those occasions the Court had granted her permission to take the child off shore on her own assurance that she would return without any further security. He further admitted that on each occasion she had returned in accordance with her assurances. It was the wife’s evidence that she was in a settled relationship in Australia and had another child born of that relationship.
The order made by the trial Judge which is the subject of this appeal is:
“The wife have leave to take the child, [M] born 10 September 1996, overseas every two years for no more than four weeks, and the husband is to have make-up contact for the contact periods missed over that period.”
Whilst that was not the order that the mother had sought in the proceedings, given her Honour’s findings as to the undesirability of the parties bringing any more proceedings than were necessary, and given her Honour’s finding that the mother had already taken the child overseas on several occasions and then returned to Australia, we can understand why it was that her Honour made the order in the form she did.
The husband’s complaint about the order is that the mother may well interpret some proposed amendments to the Family Law Act emphasising the Court’s need to give consideration to shared parenting arrangements as a threat to the stability of her arrangements in her sole control of the child. Feeling so threatened she might simply leave the jurisdiction and not return. He says the risk of the mother leaving the jurisdiction in such circumstances is real and it ought be appropriate in the circumstances for the order made by the trial Judge to be discharged.
Given the level of hostility already demonstrated by the parties throughout [M’s] life, the desirability of avoiding any further proceedings between these parties, and the proven conduct of the mother in returning the child to the jurisdiction on several occasions already after she had been given permission to leave for short holidays overseas, we see no reason to interfere with her Honour’s discretion save that we do feel it appropriate that the orders be amended to at least provide for the mother to give the husband three months notice in writing of any proposed travels so that the parties can then make appropriate arrangements to give effect to the provisions of the order that require make-up contact. The mother indicated to us that she would have no difficulty with such an amendment being made to the orders.
The dismissal of the property application
At the best we can interpret the husband’s arguments in support of his appeal against the dismissal of his s 79A application, the husband seemed to be putting to us that given his financial circumstances as a disability support dependent pensioner circumstances had now arisen that made it impractical for him to comply with the orders of the Court that required him to pay $10,000 to the wife.
In La Rocca (1991) FLC 92-222 at 78,538, 14 Fam LR 715 at 721 Kay J held that the potential insolvency of a party is not a basis for setting aside an order on the ground of impracticability:
“…the commercial failure of one of the parties post the making of the orders which will lead to the orders not being capable of being fully implemented does not in my view amount to a basis on which to set the order aside.
That situation leads to a problem with enforcement…it is not an appropriate basis for having the orders set aside and fresh orders made at the behest of a party who has suffered the financial embarrassment. There is no provision in the legislation to have matters looked at a second time if one of the parties suddenly becomes wealthy and, in my view, I do not see that the legislation can be appropriately read as applying when one of the parties becomes suddenly poor, in normal business circumstances.”
La Rocca was cited with approval by the Full Court in Davidson (1994) FLC 92-469, 17 Fam LR 656 and Cawthorn (1998) FLC 92-805, 23 Fam LR 86. It was clearly open in the circumstances for her Honour to dismiss the s 79A application that sought to rely on the basis of a deterioration in the husband’s financial circumstances.
In any event, the trial Judge dealt with the husband's argument as follows:
“46.The husband was granted a Disability Support Pension on 9 January 2002. Despite being in receipt for a pension, the husband was able, until at least 18 October 2003, to meet his commitments to pay into the trust account sums for the wife. In addition, the husband agrees that he is committed to pay half the school fees for his child, [R]. He has agreed that he has money to pay for expenses for the children, as long as he controls the items that the money is spent on.
47.While the husband's circumstances have changed since the making of the order in that he is now on a Disability Pension, I am not satisfied that it is impracticable for the order to be carried out and, in fact, until at least 18 October 2003 the husband was meeting his commitments pursuant to the arrangement entered into with the Administrator.”
In the appeal the husband did not challenge the findings of the trial Judge in the passages quoted.
A further ground relied upon by the husband before the trial Judge, was that the wife’s failure to comply with the contact orders was somehow a basis for undoing the property order. This misunderstands the provisions of s 79A(1)(c) which provide that the Court may vary or set aside a property order if:
“a person has defaulted in carrying out an obligation imposed on the person by the order and, in the circumstances that have arisen as a result of that default, it is just and equitable to vary the order or to set the order aside and make another order in substitution for the order.”
If for example a person is ordered to deliver a particular chattel to the other party and defaults in so doing, it might be appropriate for the Court to revisit the property order and either substitute another chattel or its financial equivalent. The failure to comply with a contact order cannot be said to be a failure to comply with “an obligation imposed on the person by the order” when referring back to the property order that is the subject matter of the application for variation or discharge.
Discharging the order for disclosure of residential address
In December 2000 in the course of the contested proceedings an order was made that the wife do at all times keep the husband informed regarding the residential arrangements made by her for the child. Amongst the myriad of applications filed by the wife in 2003 was one in which she sought an order that that order be cancelled.
Apparently the mother had refused to comply with the order and that had led to several enforcement applications being brought against her. One such enforcement application had been adjourned to enable the wife to seek to have the order set aside.
In her affidavit in support of setting the order aside she said that the husband knew of her telephone number, her mobile number and her letter box address. When the child goes with his father for contact she has no information as to where the child will be. In the circumstances she submitted there was no need to keep the husband informed about the residential address. Her Honour agreed for the reasons which we have already referred to set out in paragraph 34 above.
Her Honour referred to only one matter that might have constituted a change from circumstances existing when the order was made, namely:
"The wife has now repartnered and has a child by that relationship. She wishes to protect her privacy...."
There is no discussion of whether the wife had also wished to protect her privacy when the order for disclosure of her address was made. There is no discussion of whether, if the wish to protect her privacy had arisen since the order for disclosure, out of the circumstance of the wife re-partnering and bearing a child by that relationship, that was a sufficient reason for altering the order for disclosure.
The husband was aggrieved by the discharge of the order for several reasons. Firstly and most importantly he argued that if Rice v Asplund was being used as a basis for not interfering with the existing residence and contact orders without it being demonstrated there was some sufficient change in circumstance, then the same principle should have applied to Order 10 of the December 2000 orders. The order had been made in the midst of contested proceedings and nothing, it was submitted, had been shown to demonstrate that it was appropriate to change that order.
There was no evidence led that the husband had abused the order by inappropriately attending at the wife’s premises. As comfortable as it might have been for the wife to know that the husband was unaware of her whereabouts, we would respectfully disagree with her Honour when she said that she could see no reason why the husband needed to know where the child was living.
The husband remains a parent of the child with a keen and proper interest in the welfare of the child. Knowledge of the whereabouts of the child’s primary place of residence is in our view appropriate knowledge for a concerned parent to have unless it can be shown that somehow ownership of that knowledge is likely to result in some inappropriate conduct. In the circumstances of this case no such evidence existed. The order was in place. There was no proper basis for discharging it.
The vexatious litigant
The order made by her Honour was to restrain either party from bringing any further proceedings other than enforcement proceedings without the leave of the Court first had and obtained. The husband appealed against the order in so far as it restricted his ability to bring proceedings. Once again this is an appeal against a discretionary order. It was an order that, as her Honour indicated when citing from Vlug and Poulos (1997) FLC 92-778, 23 Fam LR 324 should be reserved for the clearest of cases.
Her Honour set out at length the terrible history of the litigation in this case that had resulted in more than 80 attendances in court over the period of seven years.
In our view it was open for her Honour to conclude that there was a serious degree of mutuality in the manner in which each party exercised their rights to bring inappropriate proceedings before the court.
Whilst it might have been appropriate to lay more blame at the feet of the wife than the husband, given that at least seven of the applications brought by the husband appear to have resulted in some form of finding in his favour as to an inappropriate breach of orders, nonetheless it was clearly open for her Honour to find that each party was continuing to take polarised views and to litigate to seek to argue the unarguable.
In those circumstances, we see nothing that would make it appropriate for an appellate court to interfere with the exercise of the trial Judge’s discretion in limiting the parties to commence further proceedings without first obtaining the leave of the court.
We note the exception to that rule has been extended at this stage to enforcement proceedings. It may, however, ultimately become appropriate to extend it to enforcement proceedings in the event that there is an abuse of that exception.
Finally the husband sought to raise an issue that the trial Judge failed to deal with his application for a change in the arrangements concerning the sharing of travel by the parties at the commencement and conclusion of contact. Under the existing orders of December 2000 the husband is to collect and deliver the child for periods of contact.
Whilst it is correct that the matter was raised by the husband in the course of one of his applications, it does not appear to be a matter that was focused upon by the trial Judge, nor are there any matters raised in the material which would make it appropriate that the issue be re-examined.
Accordingly the failure by the trial Judge to specifically make reference to the application is not in our view a basis for allowing an appeal against her Honour’s apparent rejection of the application.
Orders
1. That the appeal be allowed in part.
2. That order 1 of the orders made by the Honourable Justice Penny on 18 November 2004 be set aside.
3. That order 2 of the orders made by the Honourable Justice Penny on 18 November 2004 be amended by adding the words “the wife is to provide the husband with at least three months notice in writing prior to each proposed removal of the child from the Commonwealth of Australia setting out the proposed dates for travel and return and any suggested dates upon which make up contact might be provided”.
4. The appeal be otherwise dismissed.
I certify that the 71 preceding
paragraphs
are a true copy of the reasons
for judgment delivered by this
Honourable Full Court.
Elizabeth Hore
Associate
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