K and S
[2007] FMCAfam 1085
•30 November 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| K & S | [2007] FMCAfam 1085 |
| FAMILY LAW – Parenting orders – previous orders between same parties – Rice and Asplund rule – whether material change in circumstances warranting variation of previous orders – whether allegations of physical harm, errors by counsel and increase in costs of travel, fuel, vehicle repairs or generally constitute a material change in circumstances. |
| Family Law Amendment (Shared Parental Responsibility)Act 2006 (Cth), Schedule 1, part 2, clause 44 |
| Burton and Burton (1979) FLC 90-622 D & M [2005] FMCAfam 89 F and N (1987) FLC 91-813 In the Marriage of Paskandy (2005) 33 Fam LR 509; [2005] FamCA 755 McEnearney and McEnearney (1980) FLC 90-866 |
| Applicant: | T M A K |
| Respondent: | L J S |
| File number: | SYC 4809 of 2007 |
| Judgment of: | Lucev FM |
| Hearing date: | 26 November 2007 |
| Date of last submission: | 26 November 2007 |
| Delivered at: | Sydney |
| Delivered on: | 30 November 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr K in person |
| Counsel for the Respondent: | Ms Kinghan |
| Solicitors for the Respondent: | Kinghan & Associates |
ORDERS
The application filed 22 August 2007 is dismissed.
The Respondent file written submissions in relation to costs within fourteen days.
The Applicant file written submissions in relation to costs within twenty one days.
If any submissions in relation to costs are filed in accordance with Orders 3 and 4 above, judgment in relation to costs will be given at 10am on 4 February 2008 at P, with leave granted for the parties to appear by telephone.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 4809 of 2007
| T M A K |
Applicant
And
| L J S |
Respondent
REASONS FOR JUDGMENT
(Revised from the transcript)
On 22 June 2006, the Court made parenting orders concerning the parties to this application, T K,[1] L J S,[2] and N R K,[3] born 2000. Orders were made by consent. On 14 March 2007 the Court made further orders by consent.
[1] “Father”.
[2] “Mother.
[3] “Child”.
The orders of 22 June 2006 dealt with:
a)with whom the Child should live, namely the Mother;
b)time spent with the Father, in essence, allowing for each alternate weekend, half the school holiday periods and other times as agreed;
c)the Father collecting the Child from school for time spent; and
d)orders with respect to:
i)changeover;
ii)telephone and mail communication;
iii)school and medical consents and authorities;
iv)the provision of information concerning addresses, phone numbers and email addresses and any illness of the Child; and
v)non‑denigration.
Both parties were represented at the time the orders were made, and the orders were signed, relevantly, by both the Father and his solicitor.
The orders of 14 March 2007 dealt with:
a)specific adjustment of time spent for April 2007; and
b)telephone communication with the Father during daylight saving time.
By application filed 22 August 2007, the Father seeks to vary the 22 June 2006 orders as follows:
a)varying order 3.3.1 to provide that school holiday time spent commences from "Day school breaks" rather than the first Saturday of the holiday period;
b)varying order 3.3.2 to provide that on school holidays, time spent ceases on "the last day of the holidays at 2 pm during gazetted daylight saving time and 1 pm at other times" rather than "the last Sunday of the holidays at 2 pm";
c)varying order 4 to provide for the Father to collect the Child from the bus terminal and that time spent after school commence at 3.20 pm to coincide with bus departure to N; and
d)adding orders that:
i)if the Father is not available to collect the Child, the Child is to be collected by one of the Father's family members; and
ii)that the Mother supply an earpiece to ensure that the Child has proper and private phone contact.
The application is opposed by the Mother, who seeks the orders not be varied. An application for variation of previous orders must pass a threshold test under the Rice and Asplund rule ‑ that is, demonstrate a material change in circumstances.[4] The Rice and Asplund rule operates to prevent renewed or ongoing litigation concerning parenting orders where no new circumstances are brought before the Court.[5] In McEnearney, the Family Court spoke of "no startling new circumstances that can be brought before the court".[6] Although every case depends on its own facts and ultimately the merits of those facts, certain circumstances have been held to constitute material changes in circumstances. They include:
a)marked adverse behavioural changes in a child;[7]
b)remarriage and recovery from illness of a non‑live with parent;[8]
c)remarriage and stabilisation of accommodation of the non‑live with parent and commencement of school by a child;[9]
d)remarriage of the non‑live with parent, enabling that parent to provide a proper family environment;[10]
e)child sexual abuse;[11]
f)relocation;[12] and
g)contravention of orders.[13]
[4] In the Marriage of Rice and Asplund (1978) 6 Fam LR 570; (1979) FLC 90-725 (“Rice and Asplund”); SPS & PLS [2007] FMCAfam 907; SRK & CLP [2007] FMCAfam 961.
[5] Freeman and Freeman (1986) 11 Fam LR 293 at 297 per Strauss J; McEnearney and McEnearney (1980) FLC 90-866 at 75, 499 per Nygh J (“McEnearney”).
[6] McEnearney at 75,499 per Nygh J.
[7] Burton and Burton (1979) FLC 90-622 at 78, 217 per Evatt CJ, Ellis SJ and Smithers J.
[8] Houston and Sedorkin (1979) FLC 90-699 at 78, 732 per Marshall SJ.
[9] Rice and Asplund.
[10] F and N (1987) FLC 91-813.
[11] McL and McL (1991) 15 Fam LR 1.
[12] D & M [2005] FMCAfam 89.
[13] See, for example, In the Marriage of Paskandy (2005) 33 Fam LR 509; [2005] FamCA 755.
It is pertinent to note, given the date of the June 2006 orders, that continuation of the Rice and Asplund rule in relation to orders pre‑dating the Family Law Amendment (Shared Parental Responsibility)Act 2006 (Cth)[14] is expressly provided for by the FL SPR Act.[15]
[14] “FL SPR Act”.
[15] FL SPR Act, Schedule 1, part 2, clause 44.
Two affidavits are sought to be relied upon by the Father. They are affidavits affirmed on 22 August 2007 and 30 October 2007. For the purposes of determining this matter, the Court has taken the affidavit evidence at its highest, untested by cross‑examination. In relation to the time spent orders, as indicated earlier, the orders were made by consent and varied by consent in relation to time spent on 22 June 2006 and 14 March 2007 respectively.[16] The only evidence expressly in support of the proposed variation of the time spent orders is in the 22 August 2007 affidavit, where the Father says that he did not get half the holidays as envisaged by the orders. On the evidence, the Father simply seems to have returned the Child earlier than he should have. That is not a fault with the orders, nor is it a material change in circumstances either at all, or so startling, as to warrant variation. Indeed, nothing material has changed since the orders were made on 22 June 2006. Therefore, the application to vary orders 3.3.1 and 3.3.2 of the 22 June 2006 orders will be dismissed.
[16] See paras. 1-4 above.
With respect to collection of the Child from school, the Father seeks to collect the Child from a bus terminal rather than school. It is not necessarily relevant for present purposes, but the Court does observe in passing that that might not necessarily be prudent with respect to a Child who is not yet seven years of age. The Father says that the school the Child attends is remote, not accessible by public transport and that he needs to use public transport because he is a pensioner supporting two teenagers. There is, however, evidence that he has access to a motor vehicle, because he complains of the cost of maintaining the motor vehicle in other evidence and in relation to another issue before the Court.[17]
[17] See paras. 11 and 20 below.
In his affidavit of 30 October 2007, the Father indicates that from January 2007 he has had the additional care of a teenage 13‑year‑old daughter, presumably from a prior relationship. There is no evidence of:
a)the particulars of the Father's financial position;
b)any change in relevant public transport arrangements; and
c)any change in relevant private transport arrangements, such as the Father's access to vehicles for the purpose of transporting the Child.
In respect of sub-paragraph (c) of the preceding paragraph, the Court notes that the affidavit of 30 October 2007 asserts that the cost of travel is a changed circumstance because of the excessive cost of vehicle repairs and the cost of fuel and services. There is no particularisation of anything peculiar to the Father or his circumstances in this regard. Cost increases, either generally or in relation to particular items such as motor vehicle and travel expenses, are part of everyday life, and do not constitute a material change in circumstances warranting a variation of order 4. If such a generalised change were to constitute a material change in circumstances, there would be no end to the circumstances in which existing orders of this Court and the Family Court of Australia might be challenged and the administration of family law justice would probably drown in the ensuing flood of applications.
The Father also seeks an order that if the Child is not able to be collected by him, the Child is to be collected by another family member. There is simply no evidence touching upon this proposed variation of the orders of 22 June 2006. There is no evidence which indicates that any material fact relevant to who may pick up the Child has changed since 22 June 2006. Thus, the Court cannot find that there has been any material change in circumstances, startling or otherwise, such as to warrant variation to include an order concerning persons other than the Father collecting the Child.
With respect to the earpiece for the phone, the Father says in his affidavit of 22 August 2007 that on the last twelve occasions he has spoken to the Child, she has spoken with him on loudspeaker. The Father seeks an order that the Mother supply an earpiece so that the Child "has proper and private contact". The existing order concerning telephone communication,[18] provides for telephone communication between the parents and the Child when the Child is in the care of the other parent on Mondays, Wednesdays and Saturdays between 7 pm and 7.30 pm. In this case, the Court is satisfied that speaking on a loudspeaker on the occasions referred to is a material change in circumstances, but doubts whether it is sufficient to warrant the order sought. Even if there were a sufficient material change, the Court does not necessarily believe that it is in the best interests of a six year old Child to be supplied with an earpiece to allow "private" contact. In any event, there is no reason why the Mother should have to supply the earpiece. Other more commonsense measures might be taken to ensure that this six year old Child has such privacy as she might be entitled to when speaking to the Father. The Mother would of course be wise to take those commonsense measures, because the day will doubtless arrive when the Court takes the view that the Child is old enough to warrant conversation with her Father being "proper and private". It would be a very sad state of affairs if, at that stage, the parties had to waste their own time and money and the Court's time and taxpayers’ money on litigating such an issue.
[18] Order 7 of the 22 June 2006 orders.
In the Father's affidavit of 30 October 2007, he sets out various other issues which he asserts constitute "significant change as to warrant variation of the order". The first of those is in the following terms:
“Disclosure of harm. This is of grave concern to me that on this last period of holiday contact with [the Child], I was shown by [the Child] a bruise that was located on her lower abdomen. Upon asking [the Child] what had happened, [the Child] said your elder daughter,[19] … – had pushed her to the ground and had pinched her tummy. I asked [the Child] how often does this happen. "Very often", she replied.”[20]
[19] The Court assumes that is a reference to the elder daughter of the Mother.
[20] Father's Affidavit of 30 October 2007, document “b”, para.1.
Precisely what order is sought in relation to this issue is not apparent. Certainly, a couple of extra days of time spent will not resolve the issue if, indeed, it is an issue. The Court is not persuaded that a single noticed instance of bruising from alleged pinching by an older Child and an allegation by the Child that it happens "very often" is sufficient to properly draw the conclusion that there has been a material change in circumstances for relevant purposes. There is no supporting evidence, or evidence of the Father's alleged "grave concern" by way of:
a)photographs of the injury at the time;
b)reporting of the matter to any medical or health practitioner or relevant governmental authority;
c)discussion of the matter with the Mother; or
d)independent verification of the alleged bruising or the alleged incidents.
In the above circumstances, there is simply no sufficient evidence to conclude that there has been a material change in circumstances, and even if there had been, the Court would be hard pressed to see what order sought it would relate to.
The second of the significant changes the Father says occurred is in the following terms:
“Change in financial circumstance. From January 2007, my daughter … aged 13, has now come into my care, upon which I also have the full‑time care of my daughter … aged 16 years.”[21]
No evidence of the Father's changed financial circumstances are before the Court by way of a form 13 financial statement or otherwise such as to establish his financial position at the time the orders were made on 22 June 2006, or at the time the application was made, or now. In those circumstances, there is no way that the Court can determine what the Father’s financial circumstances were or are.
[21] Father’s Affidavit of 30 October 2007, document “b”, para. 2.
The third changed circumstance relied upon by the Father is this:
“Since December 06, I have been to over 30 Court appearances and employed barristers and solicitors that have taken a heavy toll on me financially to the point that I now have to represent myself in Court. To this date, court is still pending at children's court, bidura, the downing centre, 10 day hearing that commenced 24/10/2007 and family court. See attached documents.”
There are some attached documents relating to court dates. This is simply of no relevance to any order sought. It might be a material change in the Father's life, but it is not a material change relevant to any order sought in these proceedings.
The fourth significant change relied upon by the Father is:
“The respondent has legal aid, thus, legal aid has a conflict with representing me.”[23]
This is of no relevance to any order sought, nor is it apparent that there is a material change for relevant purposes.
[23] Father’s Affidavit of 30 October 2007, document “b”, para. 4.
The fifth circumstance relied upon by the Father is:
“At the time the orders were made, decisions were left with my barrister, who had made errors with contact times.”[24]
That allegation is wholly inconsistent with the minute of consent orders on the Court file, which is actually signed by the Father and the instructing solicitor. Further, there is no evidence:
a)of what instructions, if any, were given to the relevant barrister;
b)of what errors were made, and, in particular, what errors were made by the barrister; and
c)from the barrister or the then instructing solicitor as to what instructions were given or what alleged errors are said to have been made.
Further, there has been a very significant delay in even raising this matter. It is now raised some sixteen months after the event for what appears to be the very first time before this Court. Finally, the fact that an error was made at the time the orders were made by a barrister allegedly misunderstanding his instructions is not necessarily a material change in circumstances since those orders were made.
[24] Father’s Affidavit of 30 October 2007, document “b”, para. 5.
The sixth circumstance relied upon by the Father is:
“Cost of travel, excessive vehicle repairs, cost of fuel/services.
I need to be within reach of public transport as I will be using public transport and there is no public transport to school.”[25]
As indicated above, a change in costs generally in relation to general items, be it as here, travel and motor vehicle expenses, or otherwise the cost, for example, of food, mortgage or clothes, is very unlikely to ever constitute a material change in circumstances for Rice and Asplund purposes. It might be different for example, for specialist medications for a Child with a particular illness or disability, but there is no need to express a further view on that matter here. Finally, there is simply no evidence of what the alleged costs or increases in costs actually are in any event.
[25] Father’s Affidavit of 30 October 2007, document “b”, para. 6.
In conclusion, the Father has failed to establish any sufficient material change to warrant variation of the orders sought by him, and only in one very minor respect has he established a material change. In that respect the Court has come to the view that the material change is not sufficient to warrant variation of the orders.
The application will, therefore, be dismissed, and there will be an order accordingly.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Lucev FM
Associate: M Hewitt
Date: 20 December 2007
[22] Father’s Affidavit of 30 October 2007, document “b”, para. 3.