Matthews & Norris (No 2)

Case [2024] FedCFamC1F 844

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Matthews & Norris (No 2) [2024] FedCFamC1F 844

File number: NCC 2226 of 2015
Judgment of: MCNAB J
Date of judgment: 6 December 2024
Catchwords: FAMILY LAW – PARENTING – Where the parties currently have property proceedings on foot – Where the mother seeks to reconsider parenting orders by way of her orders sought in her Response to an Initiating Application – Where the father seeks dismissal pursuant to s 65DAAA of the Family Law Act 1975 (Cth) – Where there has not been a significant change in circumstances – Where the mother largely seeks to reagitate issues which were already determined – Where it is not in the best interests of the child for the parenting orders to be reconsidered – Mother’s Response to an Initiating Application as it relates to parenting proceedings dismissed.
Legislation: Family Law Act 1975 (Cth) ss 60CA, 60CC, 65DAAA
Cases cited:

Carlyon & Graham [2024] FedCFamC1F 443

Matthews & Norris (No 3) [2017] FamCA 461

Rice & Asplund (1979) FLC 90-725

Division: Division 1 First Instance
Number of paragraphs: 47
Date of hearing: 11 September 2024
Place: Melbourne
Counsel for the Applicant: Mr Robinson
Solicitor for the Applicant: Matthew Oldham Barrister & Solicitor
Counsel for the Respondent: Litigant in person

ORDERS

NCC 2226 of 2015

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR MATTHEWS

Applicant
AND:

MS NORRIS

Respondent

ORDER MADE BY:

MCNAB J

DATE OF ORDER:

6 DECEMBER 2024

THE COURT ORDERS THAT:

1.The orders sought in paragraphs 1-4 of the final orders sought and the interlocutory orders sought by the respondent in her Response to an Initiating Application filed 4 March 2024 be dismissed.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Matthews & Norris has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

MCNAB J

INTRODUCTION

  1. This matter involves Mr Matthews born 1967 (“the father”) and Ms Norris born 1973 (“the mother”). The child to the relationship is B born 2010 (“the child”). The parties have an extensive history in this Court and property proceedings between them as of this hearing are still ongoing.

    BACKGROUND

  2. By [1]-[4] of the respondent's Response to an Initiating Application filed 4 March 2024, she seeks that parenting orders made…

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Matthews & Norris (No 2) [2024] FedCFamC1F 844
Case
[2024] FedCFamC1F 844
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CaseChat Overview and Summary

Matthews & Norris (No 2) involved the father, Mr Matthews, and the mother, Ms Norris, who were engaged in ongoing property proceedings in addition to the parenting dispute. The child, B, was born in 2010. The mother sought to reconsider the parenting orders made by Austin J on 30 June 2017, while the father sought dismissal of the mother's application. The legal issue was whether the parenting orders should be reconsidered under s 65DAAA of the Family Law Act 1975 (Cth), given that there had not been a significant change in circumstances and it was not in the child's best interests to do so.

The court found that the mother had not established a significant change in circumstances since the final parenting orders were made, nor had she demonstrated that reconsideration of the orders would be in the child's best interests. The mother's application largely sought to reagitate issues that had already been determined, and her evidence was based on her subjective opinion rather than objective facts. The court held that reopening the parenting proceedings would embroil the child in further conflict, which would not be in the child's best interests. Therefore, the mother's application to reconsider the final parenting orders was dismissed.

The court emphasised that the best interests of children are not promoted by endless litigation, and that stability is an essential prerequisite to their well-being. The court also noted that the underlying basis of the terms of the final orders, being the level of animosity directed by the mother towards the father, remained unchanged. Consequently, the court dismissed the mother's application to reconsider the final parenting orders.

Orders

Orders of the court

NCC 2226 of 2015

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR MATTHEWS

Applicant

AND:

MS NORRIS

Respondent

ORDER MADE BY:

MCNAB J

DATE OF ORDER:

6 DECEMBER 2024

THE COURT ORDERS THAT:

1. The orders sought in paragraphs 1-4 of the final orders sought and the interlocutory orders sought by the respondent in her Response to an Initiating Application filed 4 March 2024 be dismissed.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

This matter involves Mr Matthews born 1967 (“the father”) and Ms Norris born 1973 (“the mother”). The child to the relationship is B born 2010 (“the child”). The parties have an extensive history in this Court and property proceedings between them as of this hearing are still ongoing.BACKGROUND By [1]-[4] of the respondent's Response to an Initiating Application filed 4 March 2024, she seeks that parenting orders made by Austin J on 30 June 2017 be reopened (Matthews & Norris (No 3) [2017] FamCA 461). On 30 June 2017, Austin J made the following parenting orders:(1)All former orders relating to the child B, born … 2010, are discharged.(2)The father shall have sole parental responsibility for the child.(3)The child shall live with the father.(4)Each party is restrained from denigrating the other in the presence or hearing of the child and from permitting the child to remain in the presence or hearing of another person denigrating the other.(5)Each party shall notify the other of any medical emergency, illness or injury suffered by the child whilst in their respective care warranting treatment by a third party, and shall authorise any treating health professionals to communicate with the other parent about the condition and treatment of the child.(6)The father shall authorise and request the principal of any school attended by the child to provide to the mother, at the mother’s expense, copies of all school reports and school photograph order forms relating to the child.(7)Each party shall forthwith inform the other, and keep the other informed, in writing of their respective current postal address, mobile telephone number, and email address.(8)Each party is restrained from removing and/or causing or allowing, by their agents or otherwise, the removal of the child from the Commonwealth of Australia, and it is requested that the Australian Federal Police give effect to this order by placing the name of the child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and to maintain the child’s name on that Watch List for a period of 12 months. (9) The parties are at liberty to provide a sealed copy of these orders to:(a)Any authority entitled to issue Australian passports; (b)Any authority with control over international departure points in Australia; (c)The Commissioner of the Australian Federal Police; and(d)The principal of any school attended by the child. The reasons for making the orders are explained at [87] of the judgment:87.The evidence easily rebuts the presumption of equal shared parental responsibility (s 61DA(4)). The parties cannot share responsibility for the child co-operatively. The mother said in cross-examination she “refuse[d] to go into any conversation” with the father and she will never speak with him again. It would be impossible for them to discharge their legal obligations (s 65DAC) and they would likely be in permanent deadlock if an order for equal shared parental responsibility was foisted upon them. One party must have exclusive parental responsibility for the child and it must be the party with whom she lives. Both parties’ proposals recognised that fact and the Family Consultant recommended that outcome.(Footnotes omitted)

Evidence

Evidence Before The Court

At this juncture of the proceedings, the only issue for the Court’s determination is whether the Court ought to reconsider final parenting orders pursuant to s 65DAAA of the Family Law Act 1975 (Cth) (“the Act”).EVIDENCE In support of her application, the mother relied on the following paragraphs from her affidavit filed 4 March 2024:(1)[78]-[80];(2)[82]-[88];(3)[102]-[105];(4)[111];(5)[407]-[409];(6)[427]-[466];(7)[480]-[494];(8)[534]-[535];(9)[630]; and(10)[632]-[674]. The father had filed material relating to this application, but the mother objected to reliance on the material on the basis that it was filed late. The father’s counsel explained the delay was caused by the mother failing to specify whether she was pressing the application and, if so, the material she relied on. Notwithstanding, the father conceded that he would not seek to rely on the material filed.RELEVANT LAW This application to reopen parenting orders is governed by the operation of s 65DAAA of the Act which provides:1.If a final parenting order is in force in relation to a child, a court must not reconsider the final parenting order unless:a.the court has considered whether there has been a significant change of circumstances since the final parenting order was made; andb.the court is satisfied that, in all the circumstances (and taking into account whether there has been a significant change of circumstances since the final parenting order was made), it is in the best interests of the child for the final parenting order to be reconsidered.2.For the purposes of determining whether the court is satisfied as mentioned in paragraph (1)(b), and without limiting section 60CC, the court may have regard to any matters that the court considers relevant, including the following:a.the reasons for the final parenting order and the material on which it was based;b.whether there is any material available that was not available to the court that made the final parenting order;c.the likelihood that, if the final parenting order is reconsidered, the court will make a new parenting order that affects the operation of the final parenting order in a significant way (whether by varying, discharging or suspending the final parenting order, in whole or in part, or in some other way);d.any potential benefit, or detriment, to the child that might result from reconsidering the final parenting order.3.Despite subsection (1), the court may reconsider a final parenting order with the agreement or consent of all the parties to that order.4.The failure of a court to comply with subsection (1) does not affect the validity of any order made by the court. This section codifies the principles established in Rice & Asplund (1979) FLC 90-725 and the cases applying it. As was noted recently in Carlyon & Graham [2024] FedCFamC1F 443 at [46]-[48] by Schonell J:46There is nothing new in the provisions contained in s 65DAAA rather it is a codification of well-established jurisprudence.47It has been clearly articulated in numerous authorities that the court should not “lightly entertain an application to reverse” an earlier order unless it is satisfied that there are changed circumstances It was sometimes inelegantly described as the rule in Rice & Asplund. 48The rationale for the existence of the so-called rule is that the best interests of children are not promoted by endless litigation and that once the court has made a determination, unless there has been established a change of circumstances, then the court should not engage in further litigation in relation to the child. In that respect as long ago as in Freeman and Freeman (1987) FLC 91-857, Strauss J said at 76-470–76-471:… Once the court … has settled the question of custody, it is usually in the interests of the children that the order made by the court is treated as determining the dispute and be given the necessary support. Stability in the lives of children and also in the lives of adults is an essential prerequisite to their well-being. …

Decision

Reasons for decision

I see no benefit to the child for the parenting orders to be reconsidered. To re-open the parenting proceedings would embroil the child in further conflict which would not be in the child’s best interests, particularly given that the underlying basis of the terms of the final orders, being the level of animosity directed by the mother to the father, remain unchanged. CONCLUSION The mother does not raise new issues, rather, she recounts and seeks to reagitate the matters which were before Austin J. The challenges the mother makes to the findings of his Honour are based on her subjective belief, as are her allegations that the father has recently perpetrated family violence against her and the child. The evidence that the mother relies on to make good the proposition that there has been a change of circumstances since the final orders were made is minimal and based on her subjective opinion rather than the presentation of facts and I see no benefit for the child in the making of new parenting orders, nor does she present such. The mother has not discharged the onus of establishing that there is a significant change of circumstances and that it is in the child’s best interests to reconsider the final parenting orders. For the reasons outlined above, I dismiss the mother’s application to reconsider the final parenting orders.

Ratio Decidendi

Legal Principle Established

When considering the matters at s 60CC(2)(a), s 60CC(2A) sets out that the court must consider any history of family violence, abuse or neglect involving the child or a person caring for the child and any family violence order that applies or has applied to the child or a member of the child’s family.CONSIDERATIONSection 65DAAA(2)(a)The reasons for the final parenting order and the material on which it was based The reasons of his Honour are set out at [4]-[5] above. The evidence upon which the orders were made are set out in the judgment at [25]-[30]. The mother relies on allegations of family violence prior and subsequent to the final orders being made as a reason for setting the orders aside.Allegations of Family Violence Prior to the Final Orders In her evidence, the mother recounts the abuse she alleges that she suffered by the father, including:427.Throughout our relationship, [Mr Matthews] subjected me to relentless emotional abuse and verbal assaults…428.Throughout my relationship with [Mr Matthews], I endured both physical and emotional abuse. [Mr Matthews] subjected me to regular taunts, insults, and belittlement, causing significant distress and emotional harm……534.…There also the fact that the orders are clearly wrong in allowing our abuser to be able to control and abuse us further……674.Due to the abuse that [the child] and I are still suffering when [Mr Matthews] is the perpetrator property orders need to be dismissed, with costs, and parenting matters re-opened. Throughout [427]-[466] the mother recounts the alleged abuse perpetrated by the father as well as her current circumstances (which largely goes to her financial situation). The mother’s deep animosity, the existence of which featured in the judgment, is plainly maintained and expressed by the mother at [466] in these terms: 466I express my vehement opposition to returning to Australia for a final hearing, as I fear for my safety and well-being in [Mr Matthews’] presence. I firmly believe that [Mr Matthews] poses a serious threat to my life and physical integrity, and I do not feel safe anywhere near him. This fear extends beyond the courtroom and encompasses all interactions outside of it, where I perceive myself to be at considerable risk. I have concrete reasons for these concerns, as [Mr Matthews] has openly admitted to attempting to kill both myself and our child in late 2016. Given this admission and his past behaviour, I cannot overstate the genuine fear I harbour regarding my safety in his presence. The issues raised of family violence were dealt with by his Honour who made findings in his reasons for judgment. At [36]-[66] his Honour outlined the allegations of family violence between the parties:41.When the Family Consultant first conferred with the family in March 2016, several weeks after the consent orders were made, she reported:Both parents have identified a history of serious family violence between them with police having been involved at times….Each alleges the other was the perpetrator of the violence…42.The Family Consultant subsequently reported:It is clear the parental relationship was turbulent…The allegations are mutual with each alleging that the other parent has had difficulty containing their anger…there is independent evidence to support both parents’ versions of events.(Footnotes omitted)