M and M (No.1)
[2001] FMCAfam 178
•30 July 2001
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| M & M (No.1) | [2001] FMCAfam 178 |
CHILDREN – Residence – Wishes of children.
| Applicant: | B G M |
| Respondent: | M B M |
| File No: | ZC 2585 of 2001 |
| Delivered on: | 30 July 2001 |
| Delivered at: | Canberra |
| Hearing Date: | 30 July 2001 |
| Judgment of: | Connolly FM |
REPRESENTATION
| Counsel for the Applicant: | Mr FitzGerald |
| Solicitors for the Applicant: | Gordon Naylor & Associates 2/95 Monaro Street, Queanbeyan, 2620 |
| Solicitors for the Respondent: | Respondent appeared in person |
| Counsel for the Child Rep: | Ms Hughes |
| Solicitor for the Child Rep: | Legal Aid Office (ACT) PO Box 512 |
ORDERS
THAT the Wife's application to set aside the residence orders made on 23 January 2001 with respect to the children N R M, born 24 February 1989 and B J M, born 2 February 1990 be dismissed.
FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA
ZC 2586 of 2001
B G M
Applicant
And
M B M
Respondent
REASONS FOR JUDGMENT
Proceedings
These proceedings commenced with the husband's application filed on 30 May 2001 seeking a recovery order and a variation with respect to the contact orders made by consent on 23 January 2001. The wife responded with a form 3 application filed on 7 June 2001, and a form 8 application on 20 July 2001. These applications I found somewhat confusing, as was the material which supported them.
Affidavits in support
I should indicate that the affidavits the wife relied on and that she referred me to this morning – were the affidavit that she swore on
6 June and filed on 7 June, the affidavit that she swore on 26 June and filed on the same date, and there was a further affidavit which was filed on 20 July.
The husband's material was an affidavit which he swore on 28 May filed on 30 May, and a further affidavit sworn on 20 June and I believe filed on the same day.
There is also the report from Ms O'Connor which is headed "The Wishes Report" and dated 20 July 2001 which was a document filed by the Child Representative.
Issues
As I have indicated, I found the wife's applications confusing. However, I asked Ms M when she finally appeared before me this morning, whether she wanted to challenge the residency order with respect to both children. Whilst the supporting material filed by Ms M did not appear to make out any change of circumstances with respect to the children, I gave her a further opportunity to outline those matters which she wanted to rely on in her evidence to convince me I should again make an exhaustive inquiry and a detailed determination of all the matters pertaining to the residence of the two children, B and N.
It was certainly Ms M's position that she did seek to challenge the residence of the two children. Indeed, she then detailed the four heads or grounds that she regarded as the basis of her application:
(a)the children's wishes, and in particular that B now wanted to live with her;
(b)the risk of abuse to N;
(c)who the children were residing with at the time of her application for dissolution; and
(d)finally she indicated that there had not been a sufficient involvement in mediation.
Background
The background to this matter is; the husband is 36 years of age. He is self-employed and lives at 19A E Avenue, J. He resides there with his de facto partner, D S and the two younger children, N, 12; and B J, aged 11.
The wife's address on the documents that she has filed is shown is shown as 47 M Street N, although she indicated that she is currently residing with her parents at Unit 4/72 A Avenue, R. (Nothing turns on that). The wife is 36 years of age. These parties were married on
6 October 1985 and separated on 19 October 1994. A Decree Nisi was granted on 17 February 1998. There are three children of the marriage, J-L M born 29 March 1986 who is 15 years of age and whom I am told now resides in Queensland; N M, born on 24 February 1989 and 12 years of age; and B J M, born on
2 February 1990, 11 years of age.
Final orders were made on 23 January, 2001. These orders were consent orders and were made by Faulks J. They provided for the oldest child, J-L, to live with her mother, and for the two younger children to reside with the father. It left the issue of contact to the younger children in a somewhat flexible state, with a requirement that the parties attend mediation.
Following the order of 23 January, N and B lived with their father until the Easter holidays this year. N returned to reside with her father at the conclusion of the holidays, but the child, B, remained with his mother.
It is clear that the mother refused to return B even after an order to do so was made by Federal Magistrate Brewster on 4 June, 2001. Indeed it required the execution of a recovery order by her Honour, Chief Federal Magistrate Bryant on 25 June, 2001.
The other matter that is an important aspect of my determination of what I regard as the threshold issue, is the report of the psychologist, Ms O'Connor, who had filed a report previously, in the original hearing. (That report being dated 2 August 2000). Ms O'Connor in effect updated the report and headed it, "The Wishes Report" that report being dated 20 July 2001.
The law
The law in relation to that threshold test is set out in Rice v Asplund (1979) FLC 90-725, and is conveniently summarised by the Chief Justice at the time, Evatt CJ, who says at page 7905 that:
"The principles which in my view should apply in such cases are that the Court should have regard to an earlier order and to the reasons for and the material on which the order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for change as 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.’ “
(Her Honour there is referring to a reference of Barber J's in the matter of Hayman 1976 FLC at page 75680.)
"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 will vary from case to case."
The decision of Rice v Asplund has recently been looked at by his Honour, Collier J, in King v Finnernan Appeal No. EA 2 of 2001, which was a decision handed down on 28 May of this year. I do not have the CCH reference to that decision but I understand it is in the most recent loose leaf documents that form part of that service. That is a review of a decision of her Honour, Federal Magistrate Ryan. And if I can refer to what his Honour said at paragraph 19, which was:
"At page 9 and paragraph 9 and following, her Honour set out the relevant law that she determined was appropriate in the matter. Her Honour commenced paragraph 9 of her reasons for judgment by observing that in all matters concerning parenting orders, the best interests of the child are the paramount consideration. Her Honour, further at paragraph 11, page 10 of the appeal book said this. "It is a matter for the individual judicial officer to determine whether this threshold issue is addressed as a discrete hearing or within the context of a complete trial." And she referred to Bennett v Bennett (1991) FLC 91617. In the circumstances of this matter, in particular that the orders were made as recently as 31 January, 2000, I determined that in this case the Rice v Asplund issue should be addressed as a discrete hearing prior to the matter being listed for a complete exploration of the matters raised by the father. It is that threshold hearing that has taken place today."
In paragraph 21, his Honour went on and said this:
Thereafter, in paragraphs 28 to 32, inclusive of the judgment, the learned Magistrate set out her conclusions in relation to the matter before her. At paragraph 28 she made it clear that the affidavit evidence of the husband, which she had considered, as to what had occurred or changed since the making of the orders of Moore J, did not, to use the words of the Federal Magistrate, "warrant a finding that there had been a significant change in the children's circumstance such that there should be further hearing in relation to the matters in particular contact".
I further refer to paragraphs 40 to 44 of his Honour's reasons and his Honour makes it very clear in those paragraphs that the rule in
Rice v Asplundhas not been changed or altered in any way by the 1995 amendments to the Family Law Act and still applies. I will not repeat all of those matters set out on the paragraphs, save that I will refer to paragraph 44, which, to quote his Honour:
"To apply the test in Rice v Asplund is to make an assessment of the material then available to the Court as to whether or not the matters raised in the material make it necessary or proper, in the best interests of the children, the subject of litigation to allow further proceedings. In arriving at such a decision the Court will give consideration to the importance or seriousness of the issues raised both individually and, where necessary, collectively, and the impact that they may have on the children. It may be necessary to assess whether or not the matters are indeed matters of change or whether they are completely fresh issues that require re-visiting the earlier decision. This is not always a clear distinction."
And finally, then I must assess whether the matters relied upon by the wife are matters of significant change or are completely fresh issues requiring a revisiting of the earlier decision.
Conclusion
Firstly, in respect to the childrens' wishes, the mother conceded that she entered into final consent orders for residence of both children on 23 January 2001. She conceded that she did so because of what the children had said and in particular, N, who had told her mother she wanted the proceedings brought to an end. The evidence of Ms O'Connor in her latest report, which supports the contention that both children want to continue living with their father is also of significant importance in my decision, and I refer to paragraph 2.2 of that report, where the counsellor says this:
"N said that she did not know why she had come to speak to me again. After I explained my role in ascertaining any wishes she might have as to where she wished to live, N went on to say, 'I want to stay with dad basically'. She said that increasingly she had not felt right while she lived at her mother's place and that she would feel pretty sad if she were made to return there, as she wanted to live with her father."
In paragraph 3.1 the counsellor says this about B:
"Although B greeted me pleasantly, he was quieter and seemed to be more anxious than when seen previously. He was aware that he had come to tell me where I want to live and stuff, going on spontaneously to say, 'I want to live with dad, but spend a lot of time with mum'."
There is no evidence that controverts that evidence, that those are the current wishes of the children. Secondly, so far as the issue of the risk of harm to N, I am satisfied that the only risk of harm to her emanates from a continuation of these proceedings, with respect to her residence. The mother, contrary to what she has said she would do at the commencement of the proceedings, did not provide any documentary evidence to establish that N was at risk. Indeed, whilst there was evidence that prior to 23 January 2001, both girls had voiced some suicidal thoughts. There is no such evidence since then. And if I needed any more support to be satisfied that N was not at risk in the current circumstances, I received it from the wife herself when she indicated to me, "I don't care how much time they spend with their dad".
This statement was made, not as a direct result of cross-examination, but came from the wife when she was given a final opportunity to clarify what matters may have arisen out of cross-examination. She further volunteered, "I want them to spend a lot of time with their father". It is inconceivable that she would make those comments if she took the view that there was any risk to N.
The issue of who the children were residing with at the time of the dissolution in early 1998 is of no relevance in my view. It is not a change in circumstances, and the wife is well aware of what living arrangements were at the time she consented to an order on
23 January 2001.
Finally, the wife's evidence as to what number of mediations were put into effect is unclear. Her evidence on one occasion, that mediation occurred on two or three occasions and at another time she said she was not sure. I am certainly not satisfied, even if there had been a breach of that requirement, that it would amount to an appropriate reason for requiring revisiting the earlier decision.
I therefore dismiss the wife's application to alter the childrens' residence arrangements, ie, that they live with their father. Now, that leaves a number of issues which I will come to ultimately in relation to the mother's application. It also leaves the issue of the contact, the mother's contact to the other two children.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Connolly FM
Associate: Sylvia Loveless
Date: 1 October 2001
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