Lander & Ors and Bradbury & Anor
[2018] FamCA 387
•31 May 2018
FAMILY COURT OF AUSTRALIA
| LANDER AND ORS & BRADBURY AND ANOR | [2018] FamCA 387 |
| FAMILY LAW – CHILDREN – Interim proceedings – the application of the principles of Rice v Asplund – where the evidence does not establish that it is in the child’s best interests to change the present interim orders. |
| Family Law Act 1975 (Cth) s 60CC |
| Marsden & Winch (2009) 42 Fam LR 1 O’Brien & O’Brien [2017] FamCAFC 219 Rice and Asplund (1979) FLC 90-725 |
| APPLICANT: | Ms Lander |
| 2nd APPLICANTS: | Ms B and Mr Lander |
| RESPONDENT: | Mr Bradbury |
| 2nd RESPONDENT | Mr Balsdon |
| INDEPENDENT CHILDREN’S LAWYER: | Mrs G Yeend |
| FILE NUMBER: | CAC | 239 | of | 2017 |
| DATE DELIVERED: | 31 May 2018 |
| PLACE DELIVERED: | Canberra |
| PLACE HEARD: | Canberra |
| JUDGMENT OF: | Gill J |
| HEARING DATE: | 22 May 2018 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Self-representing |
| SOLICITOR FOR THE 2ND APPLICANTS: | Self-representing |
| SOLICITOR FOR THE RESPONDENT: | Infinity Legal |
| SOLICITOR FOR THE 2ND RESPONDENT: | No appearance |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Yeend & Associates |
Orders
The Applicant’s application filed 20 April 2018 is dismissed.
The Second Applicants’ application filed 23 April 2018 is dismissed.
The father's parenting response to an application in a case with respect to the child X, born … 2001, is withdrawn and dismissed.
The father’s response to an application in a case filed 7 May 2018 is otherwise dismissed.
Should the child fall ill in the mother's or father’s care and be unable to attend C Group then changeover will occur at a public place as agreed between the parties and in default of agreement, inside the Suburb D Police Station.
The proceedings are transferred to the Registrar’s list pending their removal for trial, or further application.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Lander and Ors & Bradbury and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT CANBERRA |
FILE NUMBER: CAC 239 of 2017
| Ms Lander |
Applicant
And
| Ms B Lander and Mr Lander |
2nd Applicants
AND
| Mr Bradbury |
Respondent
AND
| Mr Balsdon |
2nd Respondent
REASONS FOR JUDGMENT
Orders were made following contested interim proceedings before Judge Tonkin on 28 September 2017 for the child, Y, born in 2013, to live with the father and spend time with the mother during daytime periods each Wednesday, Friday and Saturday.
On 2 November 2017 consent terms were entered into varying those Orders to provide that Y would spend time with her mother each Wednesday during the day, each alternate Friday overnight and on the other Friday and Saturday for daytime periods. Arrangements were also made for Christmas time. The parties were granted liberty to reapply to the Court on the release of a Family Report.
On 19 March 2018 the matter again came before the Federal Circuit Court, which at that stage vacated the pending trial dates of 30 April and 1 May 2018, and transferred the matter to the Family Court of Australia. On the first appearance on 22 April 2018 the matter was adjourned to 22 May 2018. The mother had attempted to file an affidavit without an application which was rejected by the Registry. She was granted leave to file that affidavit and to make an application to be heard on 22 May 2018. The Family Report had still not been released by the time the matter came back before the Court on 22 May 2018.
The proceedings concern applications made by the mother and maternal grandmother and a response by the father. The applications and responses also deal with X, born in 2001, who is the child of the mother.
The mother seeks orders that would mean that Y would live with her and that she would have sole parental responsibility for Y. She seeks that Y spend time with the father between each Saturday and Monday. The mother seeks machinery orders in support of these arrangements and also seeks final orders regarding her other daughter X. Those final orders are not able to be summarily dealt with at this stage.
The mother also seeks urgent financial orders that would see her being paid $20,000.
The maternal grandmother, while also seeking orders regarding X, conceded that it was not necessary to deal with those matters at present. She seeks that the mother and father have equal time with Y and that there be school holiday periods specified for the maternal grandparents. She further seeks orders regarding mental health information in respect of the father being brought before the Court.
By his response, the father seeks that the mother's application and maternal grandmother's application be dismissed and a variation to the time that the mother is spending with Y, such that it would be daytime periods only, each Saturday and Sunday. However, his position was that in the event that the mother and maternal grandmother's applications were dismissed he did not press for any variation in the Orders.
He currently seeks no interim orders in respect of X, who is currently 16 years old. X currently lives with the mother and is not spending time with the father. There is no necessity for orders to be made in respect of her at this point, given that the father has abandoned his application for the present. As noted previously, the mother’s seeking of summary final orders for X cannot be made. The maternal grandmother accepted that at present, particularly given X’s age, there is no need for interim orders for her.
In support of her application, the height of the mother’s submissions was that she thought that Y wanted to have family time with her and that there should be more mother-daughter time.
The height of the maternal grandmother's submissions was that in the circumstances where findings had not been made in respect of each of the parents, it was appropriate that there be 50-50 time.
It may be observed that the bulk of the material relied upon by each of the parties was a mix of argument and submissions. In the context where the current orders governing Y are a combination of contested interim proceedings and the amelioration of those Orders by consent, the re-litigation of the matters resolved by the earlier Orders requires a sufficient factual basis to justify the displacing of those earlier Orders. Such a position will be made out where the application discloses s 60CC[1] matters sufficient to establish both that it is in the child's interest that the matter be re-litigated and that a different regime of orders be made.
[1]Family Law Act 1975 (Cth) s 60CC.
While the mother asserts that the Orders were only to be in place for five weeks, the previous contested proceedings occurred in September 2017, well in advance of when a Family Report might be prepared or further litigation might take place. Although it must be accepted that the proceedings have been lengthened beyond the expectations of the parties, partly by virtue of the Family Report not yet being available, and partly by virtue of the final proceedings being vacated and the proceedings being transferred to the Family Court of Australia, that increase in time pending resolution is not, in this particular case, sufficient to justify an alteration of the orders. It could be sufficient provided there are other factors that in combination with it lead to the conclusion that it is in the child's interests to adopt an alternate regime.
The particular deficit in this matter is that the applications to amend the Orders are supported by little, if any, substantive material. The mother raises a number of historical matters, predating the contested interim proceedings, which will require resolution at the final hearing, including the question of whether there was violence or abuse in the relationship, noting that the father alleges violence and abuse on the part of the mother as well. There are also issues of the mental health of the mother and whether the father has so influenced those who possess the capacity of the mother to parent that it constitutes itself a form of family violence, whether the father has mental health issues.
More current matters are raised, such as the state of the father's home and the complaint that there are spiders in the yard along with garden waste. This too is a contentious matter disputed by the father and in the context where complaints are being made about the mother's residents in the past.
The mother also raises issues about Y being upset at handover time, although in large part this is generalised and the source of the upset is not clear. She points to a change in regime involving a change in the number of handovers. She points to the current regime impacting adversely on her work, both by virtue that it has involved an amendment of her work arrangements which are not sustainable as far as her employer is concerned, in the long-term, but also not sustainable in terms of her ability to derive an income. At the same time the mother rejected the idea that an amendment of the timing that she is to spend with Y could be effective to resolve this particular issue.
The mother also raised issues of abuse or neglect on the part of the father. She points to Y suffering from bruises, although there is no cogent reason advanced as to why these are the product of abuse or attributable to the father. She notes an accident that has recently occurred in the father's home where Y climbed on a shelf and fell. The father has explained this incident and again, even on the terms set out by the mother, it is not sufficient to indicate that Y is at risk in respect of neglect.
The mother complains about the educational decisions taken by the father which are not matters able to be resolved at this stage.
The mother further complains about the decisions the father has taken in respect of Y's asthma medication. The father asserts that he follows medical advice while the mother disputes that. This too is not a matter that is able to be resolved at this point and nor is it able to be identified what risk might be entailed by either of the parties’ approaches.
Noting that the historical matters were in existence before the current resolution of the interim proceedings before Judge Tonkin, the matters that have arisen since then, even in combination with those earlier matters, are not sufficient as to demonstrate that an alternate regime should be put in place for the benefit of Y, nor even that the matter requires revisiting in the context of the Rice and Asplund.[2] In O’Brien & O’Brien [2017] FamCAFC 219 Justice Ainslie Wallace extracted from Marsden & Winch (2009) 42 Fam LR 1 and amplified as follows:
Whether in a particular case a court should be willing to embark upon another hearing concerning the child and parent, or whether to do so would itself be demonstrably contrary to the best interests of the child, is a decision to be made in each particular case. How is that decision to be made? The court must look at:
(1)The past circumstances, including the reasons for the decision and the evidence upon which it was based.
(2)Whether there is a likelihood of orders being varied in a significant way, as a result of a new hearing.
(3)If there is such a likelihood, the nature of the likely changes must be weighed against the potential detriment to the child or children caused by the litigation itself. Thus, for example, small changes may not have sufficient benefit to compensate for the disruption caused by significant re-litigation.
(Footnote omitted)
His Honour’s expression of the “test” to be applied as set out in his reasons at [52] does not align with the Full Court authorities and restricts the nature and extent of the enquiry necessary to the determination. To merely look to whether there has been a “change in circumstance” or the coming to light of some previously undisclosed piece of information is not consistent with the principles as explained in Marsden. As was emphasised by both Warnick J in SPS and the Full Court in Marsden, the rule in Rice and Asplund is merely a manifestation of the best interests principle.
[2] (1979) FLC 90-725.
I note that the principles in Rice & Asplund are applicable at the conclusion of the hearing of a trial as well as at an earlier interlocutory stage, and that the impact of the application of the principles at the later stage is different to the impact at an earlier stage.
In this case the matters raised do not, in the interests of Y, require a revisiting of the current Orders. The further matters raised, considered against the background of the matters in play at the contested hearing, are insufficient to require the reconsideration. Perhaps put another way, the additional matters, considered in the light of the earlier matters, do not, in the light of the s 60CC considerations, establish that it is in Y’s best interests to change the current regime.
Accordingly, the applications made by the mother in respect of the child-related proceedings for Y are refused, as are the applications made by the maternal grandmother.
The mother also made application for an interim property distribution in the sum of $20,000. Her application was devoid of sufficient financial information as to identify that such an order could be made, including the identification of the form of property against which it could be directed. That application too is dismissed.
The father sought some amendment to the machinery provisions which were supported by the Independent Children's Lawyer and in part supported by the mother, which provide for the circumstance that Y becomes unwell and that handovers are thereby unable to be conducted through the current handover facility, C Group, on the basis that C Group will not take an unwell child. Orders will be made to that general effect, although not to require the obtaining of a medical certificate as was sought by the father. Such a requirement is unduly onerous.
The matter will be otherwise transferred to the Registrar’s list.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 31 May 2018.
Associate:
Date: 31 May 2018
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