K & P - [2007] FMCAfam 961

FEDERAL MAGISTRATES COURT OF AUSTRALIA

K & P

[2007] FMCAfam 961

FAMILY LAW – Parenting orders – previous orders between same parties – Rice and Asplund rule – whether material change in circumstances warranting variation of previous orders.

PRACTICE AND PROCEDURE – Change of venue.

Family Law Act 1975 (Cth), s.68F
Family Law (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
Freeman and Freeman (1986) 11 Fam LR 293
Houston and Sedorkin (1979) FLC 90
In the Marriage of Paskandy (2005) 33 Fam LR 509; [2005] FamCA 755
In the Marriage of Rice and Asplund (1978) 6 Fam LR 570; (1979) FLC 90
K & P [2005] FMCAfam 378
McEnearney and McEnearney (1980) FLC 90-866
McL and McL (1991) 15 Fam LR 1; (1991) FLC 92
N & M [2003] FMCAfam 29

Applicant:

S R K

Respondent:

C L P

File Number:

DNM 273 of 2004

Judgment of:

Lucev FM

Hearing date:

29 June 2007

Date of Last Submission:

29 June 2007

Delivered at:

Sydney (by telephone-link to D and N)

Delivered on:

26 November 2007

REPRESENTATION

Applicant:

Mr S. K in person

Counsel for the Respondent:

Mr M.V.S. O’Brien (solicitor)

Solicitors for the Respondent:

Hallets Solicitors

ORDERS

That the application be dismissed except as to the proposed orders 5, 6, 14 and 17 sought by the amended application filed 7 March 2007.
That the proceedings be transferred to the N Registry of this Court.
That the proceedings be adjourned to a directions hearing before a Federal Magistrate in N on a date and at a time to be fixed by the Court.
No order as to costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

DNM 273 of 2004

S R K

Applicant

And

C L P

Respondent

REASONS FOR JUDGMENT

Application

On 27 July 2005 this Court made parenting orders[1] concerning the parties to this application: S R K[2] and C L P[3], and their child: M-L I K, born 3 March 1997,[4] publishing its reasons for judgment in K & P[5]. The reasons for judgment are lengthy[6] and deal comprehensively with the issues then raised.
[1] “July 2005 Orders”.
[2] “Father”.
[3] “Mother”.
[4] “Child”.
[5] [2005] FMCAfam 378 (“K & P”).
[6] 30 pages and 112 paragraphs.
Put shortly, the Court determined in 2005 that:
a)the Children live with the Mother (effectively in New South Wales);
b)the Father spend time with the Children during Christmas school holidays for two weeks (in D), on other school holidays for half the holidays in N, by telephone once a week and at other times agreed between the Father and Mother; and
c)that the Mother serve a sealed copy of these Orders on the principal of each school attended by the Child, and that the Mother authorise the principal of any school attended by the Child from time to time to send to the Father a photocopy of each school report and a form for each school photograph, and the Father be at liberty to visit the school or schools attended for events, activities or functions.
On 7 March 2007 the Father filed an amended application in the Court seeking to vary the July 2005 Orders, but in reality effectively seeking to discharge them and replace them with 29 new orders.
The Mother seeks that the Father’s application be dismissed.

First issue

The first issue which arises in this case, and one potentially fatal to the Father’s application if successful, is whether the Father can show a material change in circumstances since the making of the July 2005 Orders.[7]
[7] In the Marriage of Rice and Asplund (1978) 6 Fam LR 570; (1979) FLC 90-725 (“Rice and Asplund”). This threshold requirement is known as the Rice and Asplund Rule.

Rice and Asplund Rule – A material change in circumstances

An application for variation of previous orders must pass the threshold under the Rice and Asplund Rule, that is, demonstrate that there has been a material change in circumstances. The continuation of the Rice and Asplund Rule in relation to orders pre-dating the Family Law (Shared Parental Responsibility) Act 2006 (Cth)[8] is expressly provided for by the FL SPR Act.[9]
[8] “FL SPR Act”.
[9] FL SPR Act, Schedule 1, part 2, clause 44.
The Rice and Asplund Rule operates to prevent renewed or ongoing litigation concerning children’s issues where no new circumstances are to be brought before the Court.[10]
[10] 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”).
In McEnearney, Nygh J put it in language all might understand:
“… that the principle that there be an end to litigation has equal force in custodial disputes and in some respects may have even greater force in custodial disputes. The last thing, of course, that this court would wish to see would be a perennial football match between parents who because the strict principles of res judicata are not applicable might seek to canvass again and again the question of custody of a child with the enormous psychological harm which they would be inflicting not only upon each other but especially upon the child.
One comes back to the fundamental principle that the interests of the child are paramount and that consideration alone should lead a court to discourage a parent from coming back before the court too soon after the court has had an opportunity to consider fully the situation of the child and there is really no startling new circumstances that can be brought before the court.”[11]
[11] McEnearney at 75,499 per Nygh J.
What constitutes a material change in circumstances is dependent upon the facts of individual cases, but usual examples include:
a)marked adverse behavioural changes in a child;[12]
b)re-marriage and recovery from illness of a non-live with parent;[13]
c)re-marriage and stabilisation of accommodation of the non-live with parent and commencement of school by a child;[14]
d)re-marriage of the non-live with parent enabling that parent to provide a proper family environment;[15]
e)child sex abuse;[16]
f)relocation;[17] and
g)contravention of orders.[18]
[12] Burton and Burton (1979) FLC 90-622 at 78,217 per Evatt CJ, Ellis SJ and Smithers J.
[13] Houston and Sedorkin (1979) FLC 90-699 at 78,732 per Marshall SJ.
[14] Rice and Asplund.
[15] F and N (1987) FLC 91-813 at 76, 136 per Nygh J.
[16] McL and McL (1991) 15 Fam LR 1; (1991) FLC 92-238; compare N & M [2003] FMCAfam 29.
[17] D & M [2005] FMCAfam 89.
[18] See, for example, In the Marriage of Paskandy (2005) 33 Fam LR 509; [2005] FamCA 755.

Material change in circumstances

To determine if there has been any sufficiently startling material change in circumstances it is necessary to consider the reasons for judgment in K & P and the orders sought and matters put before the Court in the present application. In some respects it is difficult to isolate the issues, for as often happens in this jurisdiction, the Father was self-represented, and did not file or hand up an outline of case document or an outline of submissions. The Father simply relied on his affidavits. Those affidavits were voluminous. The material in them was often hearsay, irrelevant, argumentative and speculative. Whilst no objection was taken for present purposes, the Court has exercised an appropriate discretion in considering their contents.
The first affidavit relied upon by Mr K is that of 24 November 2006[19].
[19] “24 November 2006 Affidavit”.
That affidavit indicates that the Father is seeking a change to the Orders because over a year has passed and that he wishes to appeal the current existing Orders.[20]
[20] 24 November 2006 Affidavit, paras 2 & 4.
The remainder of the affidavit is essentially a critique of the Reasons for Judgment giving rise to the July 2005 Orders, together with criticism of the report of the then Family Report Writer and her report.
There is then evidence given concerning difficulties with telephone communication involving the Mother and the Child during the Child’s 2006 visit to D.
The 24 November 2006 affidavit then proceeds to set out various concerns with the contact between the paternal grandparents and the Mother. That included an alleged threat that the paternal grandparents would not see the Child because they had no legal entitlement to do so.[21] There is also discussion of various phone conversations between the paternal grandparents and the Mother and her current husband.
[21] 26 November 2006 Affidavit, para. 48.
There is also concern expressed about the whittling down of time that the Child spends with the paternal grandparents. It is pertinent to note that the July 2005 Orders do not provide for the Child to spend time with the paternal grandparents.
In K & P it was noted it was common ground that a practice had grown up of the Child spending a week or so at each school holiday period with the paternal grandmother.[22]
[22] K & P at para 32 per Brown FM.
The 24 November 2006 affidavit goes on to indicate that significant family events in relation to the paternal grandparents had not been attended by the Child, including significant anniversaries, birthdays, weddings and christenings.[23]
[23] 24 November 2006 Affidavit, para.61.
The Father filed a second affidavit on 24 November 2006.[24] In the Second 24 November 2006 Affidavit the Father essentially says that since an incident on 20 September 2006 in which the Child said that she wanted to change her name to the Mother’s surname[25] the Father had been at a loss as to how to deal with his daughter and had decided not to see her again. There then follows more criticism of the judgment leading to the July 2005 Orders and various assertions about the mental state of the Mother.
[24]“ Second 24 November 2006 Affidavit”.
[25] 24 November 2006 Affidavit, para.71-72.
On 7 March 2007 the Father filed a further affidavit.[26]
[26]“ 7 March 2007 Affidavit”.
There are nine stages to this voluminous affidavit. Stage One is an argument that the judgment in K & P considered the best interests of the Mother and not the best interests of the Child. Stage Two deals with the Father’s experiences over the last ten years in regard to what he describes as the mental outlook of the Mother. The Father is a scaffolder not a psychiatrist and has not recently seen the Mother, and his views about such issues have been treated accordingly. Stage Three discusses the rule in Rice & Asplund and its application to the current proceedings. Stage Four discusses the allegedly obstructive behaviours of the Mother in regard to attempts to secure access to and participate in a meaningful relationship with the Child. Stage Five discusses the family report written by the Family Report Writer for the proceedings in 2005 and an earlier family report written in 1998. It is said that the 1998 report is totally new evidence of which the Court was not aware until now. In Stage Six the Father discusses the allegedly obstructive behaviour of the Mother and the close relationship of that behaviour to, and relevance of, possible contraventions of the July 2005 Orders. In Stage Seven the Father discusses Rice & Asplund and its application to this application and the varied orders that he now seeks. Stage Eight is a discussion of the orders that he now seeks. Stage Nine is a discussion of the declaration of human rights and possible further appeal options.
In the context of changes in material circumstances since the reasons for judgment were handed down in K & P it is only Stages Three, Four, possibly Six, Seven and Eight that are relevant to this application.
Stage Three starts with a dissertation in relation to the Rice and Asplund Rule. It goes on to criticise the 2005 Family Report Writer’s report, and seeks to rely on a 1998 Family Report as new evidence of the relationship between the Father and the Child. It suffices to say that a nine year old family report, concerning a one year old who is now a ten year old, is hardly going to be relevant in 2005, let alone 2007.
The only attempt to point to change of material circumstances is at para. 26 of Stage Three of the 7 March 2007 Affidavit. At para. 26 there is a recitation of matters in respect of which it is said evidence has been brought before the Court. The only relevant matters are these:
a)alleged contraventions;
b)alleged obstructive attempts of the Mother (presumably in relation to communication with the Child); and
c)the refusal of the Mother to reply to letters requesting medical information on the Child.
In respect of (c) above, the Court notes that there is no entitlement to have letters of such a kind replied to in the July 2005 Orders, merely an entitlement to be informed of any major illness or accident suffered by the Child.
The nature of the application is in some ways indicated by paras. 34 and 36 of Stage Three of the 7 March 2007 Affidavit. Para. 34 seeks to distinguish Rice & Asplund on the basis that the parties were once married and that the Father and Mother here were never married. That completely misses the point of principle: that there must be a change in material circumstances before an order will be reconsidered. The Father also says that because Rice & Asplund was decided in 1978 there is now a “different legal, social, economic and political “Esprit de Corps” pervading society now”.[27] As noted above however the rule in Rice &Asplund has been expressly preserved by the Parliament.[28]
[27] 7 March 2007 Affidavit, Stage Three, para. 36.
[28] See para. 6 above.
Stage Four of the 7 March 2007 Affidavit commences with further examination of the reasons for judgment in K & P and then deals with circumstances related to events in 1997 through to 2005, prior to the making of the July 2005 Orders. Essentially it amounts to a complaint about the way in which the Court dealt with incidents in May 2005 involving the Father. There are then set out further alleged obstructive incidents in 2004 and 2005 and, finally, a possible contravention of the July 2005 Orders on 24 September 2006. That is that no school reports had been received that year and no form for the ordering of school photos had been received. This assumes that there were school reports at the time the Father wrote, and further assumes there was a form for the ordering of school photos as well. Further, it may be that there is nothing in the conduct of the Mother which is at fault in relation to the forwarding of school reports and forms for photos. The July 2005 Orders require that the Mother authorise the principal of each school attended by the Child for time to time to send these things to the Father. There is no evidence that she has not done so.
At Stage Six of the 7 March 2007 Affidavit it is alleged that the Mother let the Child read a text message that the Father had sent to the Mother in regard to specific legal matters. This was a text message apparently about the Father taking out a loan of monies to help the Mother.[29] It is not apparent from the existing evidence that is in fact a breach of the July 2005 Orders, which prohibit denigration by either parent or discussion of the proceedings and the judgment in the presence of or hearing of the Child. There is then further complaint about the school report and photo form issue discussed above, but no indication that the Mother has not actually complied with the relevant order.
[29] 24 November 2006 Affidavit, para. 70.
There is then further complaint about the treatment of the paternal grandparents by the Mother.
There is then an issue raised about the Child’s illnesses and the alleged failure of the Mother to inform the Father of the Child’s illnesses.
There is then complaint that the Mother is endeavouring to have the Father’s parental rights signed over to the Mother’s current husband. The Father then complains about the circumstances in which the “original custody” of the Child was obtained by the Mother, ten years ago.[30]
[30] 7 March 2007 Affidavit, Stage Six, para.26.
Stage Six then continues on with a discussion of Family Report Writer’s report in 2005 and the inability of the Father to obtain legal aid.
At Stage Seven the Father details the reasons for his current application. They amount to this:
a)his admission to emergency out patients because of the stress of calls from the Mother to the Child during the last visit of 2006, and the fact that that experience may prevent the Child from wishing to have any further contact with him in D;
b)a breakdown in the relationship between the Mother and the paternal grandmother;
c)inability of the Child to communicate freely because of parental conflict;
d)alleged emotional abuse of the Child by the Mother in respect of which a contravention order has been filed (that being the exposure to the Child of the text message referred to above);[31]
[31] See para.28.
e)the family report written in 1998 which, as indicated above,[32] must after nine years, and having been written at a time when the Child was aged one, be irrelevant or almost completely so;
[32] See para. 21.
f)the Child’s relationship with the Father’s partner (with whom he was partnered at the time of the 2005 proceedings);
g)alleged pressuring of the Father to sign over his paternal rights to the Mother’s current husband;
h)the school photograph and report issue;
i)the failure to inform the Father about bouts of illness;
j)changes to child support;
k)changes to the FL Act (but these must be irrelevant to the Rice & Asplund issue because as indicated above the rule in Rice & Asplund is expressly preserved following the changes under the FL SPR Ac)t;
l)research cited in a 2006 case relating to the development and adjustment of children and the relationship with the primary and non primary carers;
m)the Father’s professional status and standing as an advanced scaffolder in charge of the entire scaffolding preparations of the LNG P at which he works in D;
n)his role as a primary care giver for the Child before the Child was removed from his care;
o)allegations about non-lodgement of documents and affidavits in relation to the proceedings in 2005;
p)that the July 2005 Orders are totally unworkable and contrary to the Child’s best interests; and
q)that s.68F of the FL Act provides that the Court can take into account any other fact or circumstance that the Court thinks relevant.
Stage Eight of the 7 March 2007 Affidavit contains an extensive and rambling discussion about issues associated with relocation (including the K Family origins in Eastern Europe and the fact that they fled to Australia from conditions of oppression). Also, the Father asks that the Court address the issue of conflict resolution in regard to Mrs P and sets out a list of possible stressors in the Mother’s life. These include:
a)that the Mother’s father may not be her natural father, and that the person concerned may be institutionalised and suffer from a mental illness (something the Father says he has been told by another source undisclosed);
b)that the Mother was in counselling before the age of sixteen;
c)that the present case has lasted three years and has associated legal costs;
d)that the Mother has two children under five;
e)that the Child is enrolled in a private school;
f)that there are currently drought conditions in rural New South Wales;
g)that the Mother is experiencing financial difficulties;
h)there have been expenses associated with the Child’s health;
i)that her current husband has suffered the loss of an eye;
j)that her step son visits every second weekend; and
k)that the current court case could be reviving unfortunate memories of ten years ago.
These matters are largely speculative, irrelevant and sometimes just plain scurrilous.

There is a second affidavit filed on 24 November 2006.[33] It relates particularly to a letter dated 17 September 2006 from the paternal grandmother and a copy of a speech that the Father intended to deliver, but apparently did not, at the proceedings in this Court in 2005. The letter from the paternal grandmother is largely irrelevant as it proceeds on an entirely false premise, that is that the paternal grandparents have a right to spend time with the Child under the July 2005 Orders. They do not. Otherwise the letter is an emotional outpouring in support of the Father by his parents. The speech which the Father says that he was going to deliver is a page and a half long. It relates solely to the information presented in the proceedings in 2005.
[33] “Second 24 November 2006 Affidavit”.
In the Second 24 November 2006 Affidavit, the Father also again deals with the fact that he has not seen the Child because he is upset about the incident on 20 September 2006 when the Child allegedly told him that she wished to change her surname to that of the Mother’s. Further, he says that he has decided not to contact the Child “until I can have a Federal Magistrate review the current Federal Magistrate’s decision on my case.”[34]
[34] Second 24 November 2006 Affidavit, para. 5.
It is perhaps the last phrase quoted in the preceding paragraph that is the most telling. Essentially what the Father seeks that the Court do in this application is to review the judgment in K & P. It is not the role of this Court to review the judgment in K & P. If there were grounds on which that judgment ought to have been appealed, then an appeal should have been lodged. As will be evident from the preceding necessarily brief overview of the voluminous information filed by the Father in support of this application, the vast bulk of the information is completely irrelevant to a question to whether or not there has been a material change in circumstances since the issuance of the July 2005 Orders. The Father in this case has picked up every possible thread, no matter how tenuous, and tried to knit it into an argument, which essentially seeks that this Court reviews this Court’s judgment in K & P. The Court will not do so. The Court is not a de-facto appeal Court sitting in judgment upon itself.
Against the above background the Orders sought[35] by the Father are dealt with below.
[35] “Proposed Orders”.
Proposed Order 1 simply seeks that the orders be relevant until the Child reaches the age of eighteen years, and need not be considered further.
Proposed Orders 2, 3 and 4 seek variation of the amount of time that the Child spends with the Father in D and elsewhere.
The question of the amount of time that the Child would spend with the Father was considered in detail in K & P. Particular regard was had to the Child’s wishes, but also the factors surrounding the Father’s move to D, his re-partnering and his employment as a scaffolder on the LNG P.[36]
[36] K & P at paras. 56,60,64,76,94,100-101,106 and 107 per Brown FM..
There has been no evidence of a material change in circumstances warranting variation of the orders with respect to the amount of time that the Child spends with the Father. There has been no change, on the evidence, in the Child’s wishes, and no substantive change in the Father’s partnership (although he and his partner now live apart, but are still partners) and his employment. Essentially, the father is dissatisfied, believing he cannot build a relationship with the Child in the time spent with her, and seeks to get more time.[37] If that were a basis for a material change in circumstance there would be no end to most parenting order litigation.
[37] Second 24 November 2006 Affidavit, paras 4 and 5.
Proposed Orders 5 and 6 seek that the paternal grandparents[38] be able to spend time with the Child. There is sufficient evidence to indicate that the amount of time that the Child has been spending with the paternal grandparents (in particular the paternal grandmother) has been diminishing. The July 2005 Orders make no provision for the Child to spend time with the paternal grandparents. However, in K & P the Child’s regular visits to the paternal grandmother during school holidays are described as “part of the fabric of … [the Child’s] life.”[39] Elsewhere, it is said that the Child (to whose wishes the Court gave significant weight) does not want to “change long standing arrangements for her to spend time with these various people”.[40] Those various people included the paternal grandmother.
[38] Incorrectly described in Proposed Order 5. as the maternal grandparents.
[39] K & P at para. 85 per Brown FM.
[40] K & P at para. 107 per Brown FM.
The Court considers that there has been a material change in circumstances in this regard. For whatever reason, the Child is not seeing as much, on the evidence, of the paternal grandparents, and in particular the paternal grandmother, as she was at the time that the July 2005 Orders were made.
The Court notes that the paternal grandparents are not presently parties to the application, but if that is necessary, that is a matter that can be remedied.
Given that the Child has had such a long and on-going relationship with the paternal grandparents, particular the paternal grandmother, this is the type of matter in respect of which it might be prudent for the parties to agree upon consent orders. That would certainly prevent significant court time being expended, costs incurred by both sides, and an unnecessary court attendance by the paternal grandmother whom the Court understands, has, in the not too distant past, had brain surgery.
Proposed Order 7 seeks that the Court note that the extended families and other significant relatives be noted as important for emotional and hereditary development and knowledge of the Child. That is a matter which is probably common to, if not all, then most, families, and is not a matter in respect of which there has been a material change in circumstance since the July 2005 Orders were made.
Proposed Orders 8, 9, 10 11 and 12 seek a variation of the time spent arrangements so that, in essence, the Child spends alternate Christmas days with the respective families, and that in the year she has to spend with the Father’s family she spend the first week with the paternal grandparents and then fly to D to spend two weeks with the Father.
As is the case with respect to Proposed Orders 2, 3 and 4 there has been no material change in circumstance in relation to the issue of where the Child ought to spend Christmas Day since the issuance of the July 2005 Orders. Whilst it is perhaps unusual that the Court did not make orders with respect to Christmas Day in the July 2005 Orders it is implicit that they were dealt with because the Court dealt with the issue of where the Child was to spend time during the Christmas holidays.
It might be, that if there has been no particular arrangement with respect to Christmas Day concerning the paternal grandparents, that that arrangement can be dealt with under the Proposed Orders 5 and 6 (or by an amendment thereto), but in general terms, there has been no material change in circumstances warranting variation of the July 2005 Orders to deal specifically with the Child’s time spent with the Father or the Father’s family in relation to Christmas Day.
Proposed Orders 13 and 14 deal with significant days in the emotional development of the Child and asks that these be noted in the orders as the Child’s birthday, Father’s Day and Mother’s Day (the latter for both families, presumably to pick up the importance of the paternal grandmother).
The Proposed Order 13 does nothing more than ask that the Court note these days. It is unnecessary to do so. Further, there has been no material change in circumstance in relation to these issues since the issuance of July 2005 Orders which would warrant the making of this order (or note).
Proposed Order 14 seeks, as the Court understands it, that a special request may be made for the Child to attend significant milestones in the Father’s family (presumably a reference to anniversaries, birthdays, weddings and christenings). This is not an issue which appears to have been considered in the July 2005 orders or the judgment in K & P, either expressly or impliedly. There is sufficient evidence to suggest that the Child might have been denied the opportunity to attend significant events in the lives of the Father’s family since the implementation of the July 2005 Orders. As such, the Court is sufficiently persuaded that this constitutes a material change in circumstances to warrant further consideration being given to an order in terms of Proposed Order 14. It is however a matter on which the parties, properly advised and acting properly in the best interests of the Child, ought have little difficulty in arriving at consent orders.
Proposed Order 15 does not presently need to be considered as these reasons for judgment will not themselves result in any alterations to time spent arrangements, and it is therefore unnecessary to consider changeover issues (although it might be necessary to do as a necessary corollary to orders, if any, that the Court might ultimately make). Otherwise there has been no material change in circumstances in this regard since the July 2005 Orders.
Proposed Order 16 deals with telephone communication between the Father and the Child. That was a matter considered by the Court in the July 2005 Orders and in the judgment in K & P,[41] and there has been no material change in circumstances warranting variation of the July 2005 Orders.
[41] K&P at para. 111 per Brown FM.
Proposed Order 17 seeks to limit the Mother’s telephone communication when the Child is spending time with the Father. There were no orders made in this regard in the July 2005 Orders, and no consideration given to the issue in the judgment in K & P. The evidence in this regard does indicate that the Mother phoned the Child (who initially wore her mobile telephone around her neck when she visited the Father) on a significant number of occasions during the Child’s time spent with the Father. Time spent with the Father is just that. It is not time spent communicating with the Mother as a consequence of telephone calls from the Mother. The evidence of the significant number of telephone calls made by the Mother to the Child whilst the Child was spending time with the Father is, in the Court’s view, a material change in circumstance sufficient to warrant the Court giving consideration to an order dealing with the amount of telephone communication that the Mother may have with the Child when the Child spends time with the Father in D.[42]
[42] 24 November 2006 Affidavit, para. 40.
Once again this might be a matter which with proper advice and prudent consideration might be the subject of consent orders, including, if necessary, the Father having more liberal telephone communication that is presently permitted under the July 2005 Orders in return for the no doubt liberal telephone communication the Mother will seek for when the Child is in D.[43]
[43] The Court is not criticising the July 2005 Orders in this regard, but rather acknowledging what might otherwise be an impediment to a reasonable settlement on this issue, which impediment might be removed by a common sense approach by both parties.
Proposed Order 18 seeks that the Child be allowed to communicate with the Father from school. There is no evidence of any material change in circumstance justifying such an order.
Proposed Order 19 seeks that any school that the Child attends may be given a copy of orders pertinent to the Child. There has been no material change in circumstances warranting the proposed order.
Proposed Order 20 seeks that any sickness or illness of the Child “no matter how trivial” is “to be communicated directly to … [the Father]”. There is some suggestion in the evidence of the Father that the Mother has not been informing the Father of any major illness or accident suffered by the Child as required by the July 2005 Orders. The Court, having considered that evidence does not consider it sufficient to warrant taking the view that there has been a material change in circumstances justifying a variation of the orders to that sought by the Father. It begs the question – “How trivial?” Perhaps an ant bite, perhaps a headache, perhaps a grazed knee. Whilst there is insufficient to justify a material change in circumstances for present purposes, the Mother needs to be cognisant of her responsibilities under the July 2005 Orders, and if the Child does have a major illness or accident, then she must inform the Father as soon as practicable.
Proposed Order 21 seeks that the Father be advised of any occasion that the Child does not attend school and the reason for non-attendance. There is no material change in circumstance justifying such an order.
Proposed Order 22 seeks copies of the Child’s medical records be given to the Father by whatever doctor attended the Child from the period 2000 until the Child reaches the age of 18. The Father is evidently concerned about the Child’s health. However, there is nothing in the evidence which indicates a material change in circumstances since the July 2005 Orders were made which would warrant the making of such an order.
Proposed Order 23 seeks that any letter of request by the Father with regard to any matter relating to the health and welfare and care of the Child be replied to by the Mother within two weeks of its receipt. Once again there is no evidence to indicate that there has been a material change in circumstances since the July 2005 Orders were made which would warrant the making of such an order. Indeed, given the propensity of the Father to file voluminous affidavits filled with argument, speculation and irrelevant material, such an order might condemn the Mother to a life of harassment by correspondence and necessary reply.
Proposed Order 24 seeks an injunction, effectively, on the Mother requesting the Father sign over parental rights to the Mother’s current husband. There is no material change warranting the making of such an order.
Proposed Orders 25 and 26 deal with the report card and school photo order issues. There has been no material change in circumstances in this regard. If the Father earnestly desires that the school reports and photo forms be sent to him in a timely and prompt fashion he ought to contact, and develop a relationship with, the school directly, rather than placing the onus upon the Mother to chase up the school to send the report and photo order forms. All that the Mother is obliged to do by the July 2005 Orders is to authorise the Principal of any school that the Child attends to send a photocopy of each school report and a form for each school photograph to the Father.
Proposed Order 27 seeks an order that the Mother be prohibited from tape recording phone conversations involving the Child, the Father and herself. There is insufficient evidence to conclude that the Mother has done so. Thus there has been no material change in circumstances warranting an order. In any event, given the nature of the conduct, it is an order that the Court might be reluctant to make, given that it arguably falls within the bounds of federal telecommunications interception legislation.
Proposed Order 28 seeks support and counselling sessions for the Child, the Mother and the Father. Other than the Father’s speculative and argumentative contentions (and particularly the unqualified ones concerning the Mother’s alleged mental state) contained in the various affidavits there is no basis upon any proper evidence on which such an order can be made, or it could be found that there had been a material change in circumstances since the July 2005 Orders warranting such an order.
Order 29 seeks an order for verbal communication about the health, welfare, and development of the Child via a family relationship centre link up once a month by telephone. Once again, the Father’s speculative and argumentative contentions aside, there is no proper evidence upon which such an order can be made or which indicates that there is a material change in circumstances warranting a change in the July 2005 Orders.

Conclusion

The Rice and Asplund Rule requires that, as a threshold matter, there be a sufficiently material change in circumstances before a previous parenting order of this Court will be varied.
For the reasons outlined above the Father has failed to establish any sufficiently material change, save as to proposed orders 5, 6, 14 and 17.
Therefore, the amended application will be dismissed, save as to proposed orders 5, 6, 14 and 17.

Change of venue

The Mother made an application in the amended response filed 20 April 2007 for a change of venue to N.
The Child’s family, except for the Father, are resident in New South Wales, and many are particularly concentrated in the H V. In those circumstances, N is a logical venue for future proceedings. It will be reasonably convenient to at least the Mother, and certainly convenient for the vast majority of witness who might be called. It will certainly limit the expense and cost of proceedings for the majority of those concerned if it is held in N rather than D. Further, there is no reason why the Father can not be heard by video link from D. The matter has not yet been listed for final hearing, but it can now be listed for future directions in N with a view to being listed for final hearing in relation to the surviving parts of the amended application. Any necessary arrangements for the paternal grandmother to give evidence remotely, because of her brain surgery, might be done equally out of N or D. However, if it is necessary for her to give her evidence in court, then there is no doubt that that evidence would more conveniently, and properly, be heard in N rather than D.
For those reasons, the Court will order that the proceedings be transferred to the N Registry of the Court, and listed for further directions before a Federal Magistrate on a date to be fixed by the Court.

Costs

Each party has been partly successful in relation to the primary argument on the Rice and Asplund Rule issue. Although the Mother has been more successful the Court considers that, in all the circumstances, it is a case in which the ordinary rule in family proceedings, that each party bear their own costs, ought not be departed from. There will therefore be an order that there be no order as to costs.

I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of Lucev FM

Associate: M Hewitt

Date: 26 November 2007