Merla and Merla (No.2)

[2018] FCCA 831

FEDERAL CIRCUIT COURT OF AUSTRALIA

MERLA & MERLA (No.2) [2018] FCCA 831

Catchwords:
FAMILY LAW – Parenting – best interests of children – orders made.

Cases cited:

O’Brien & O’Brien [2017] FamCAFC 219

Rice & Asplund (1978) 6 Fam LR 570

Applicant: MR MERLA

Respondent: MS MERLA

File Number: PAC 5685 of 2017

Judgment of: Judge Newbrun

Hearing date: 14 March 2018

Date of Last Submission: 14 March 2018

Delivered at: Parramatta

Delivered on: 14 March 2018

REPRESENTATION

Counsel for the Applicant: Mr Gardiner

Solicitors for the Applicant: Coleman Greig Lawyers

Solicitors for the Respondent: Mr Kent of Kent Attorneys

ORDERS

1. The father’s Application in a Case is dismissed.

2. Leave for the parties to file further interim property and parenting terms of settlement in Chambers together with a brief written submission (no longer than two pages relating to any ongoing disagreement). The Court notes that the parties permit the Court to make a decision on the papers without the need for further oral submissions.

IT IS NOTED that publication of this judgment under the pseudonym Merla & Merla (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 5685 of 2017

MR MERLA

Applicant

And

MS MERLA

Respondent

REASONS FOR JUDGMENT

1. In this matter of Merla & Merla, the father has filed an urgent Application in a Case, on 13 March last, seeking Orders that this application be dealt with on an urgent basis;  that Order 3 of the Court’s Orders made on 5 March last be suspended, insofar as it relates to the child, W, born (omitted) 2003;  that pending further Order, the child, W, live with the father and spend time with the mother from 5 pm Friday until 5 pm Sunday on each alternate weekend;  that Order 7(a) of the Orders of the Court made on 5 March 2018 be suspended, and each party shall each forthwith do all things necessary to enrol W at (omitted) High School, pending further order.  Another Order is sought, in proposed Order 5, relating to medical appointments.  Those applications are opposed by the mother.

2. The father relies upon his Affidavit affirmed 13 March 2018.  The mother relies upon her Affidavit filed 14 March 2018, together with a shorter Affidavit, affirmed today, of three pages, and which is handwritten.  The Court refers to its interim decision, including its Reasons for Judgment, made on 5 March last.  The Court refers to the oral exchanges between the Court, Counsel for the father, and the solicitor for the mother, today.

3. Inter alia, the father contends, in relation to this urgent Application in a Case, that the material presently before the Court, indicating the child’s oppositional behaviour since the Court’s Orders of 5 March 2018 in, inter alia, refusing to attend the (omitted) High School, is such compelling evidence of the child’s views, this child being about fourteen and a half years of age, that the Court should give decisive weight to these implicit views of the child, and make the Orders in the father’s Application in a Case.

4. In the view of the Court, there is a significant suggestion, on the material presently before it, that the father has not proactively sought to facilitate the Court’s Order of 5 March 2018, that the child attend the (omitted) High School.  For example, in the father’s own Affidavit, paragraph 8(c), he refers to a conversation that he had with the boy W on Monday 5 March 2018 at 5 pm, where he stated that the child had allegedly stated to the father that the mother and himself had had a fight about the Court’s Orders.

5. The child had allegedly stated to the father he was not going to (omitted) and he wanted to go to (omitted) High School.

   All of my friends are there.  I’ve told you and mum this.

   Then the father responded:

   I know that this is difficult for you, W, but mum and I have agreed for you to attend (omitted) High School, and it is important for you to give it a try and go to that school.

6. As remarked to the parties today before the Court, that was incorrect.  The parties had not agreed that that occur – that the child attend (omitted) High School.  The Court had made a solemn Order, interim Order, on 5 March 2018, after the parties had put their respective cases to the Court as to which school the boy W should attend, and the Court made a decision.  There was no reference by the father to the Court’s Order of 5 March 2018 at that time.

7. Another arguable example of the father’s failure to facilitate the Court’s Order of 5 March 2018, that the child attend (omitted) High School, is the father dropping off the boy W at 8.05 am at the (omitted) High School on the morning of 8 March 2018, without waiting for him there, and without waiting until the mother arrived at that school to be present with W.  No arrangements had been made for the child to be dressed in the (omitted) High School uniform.

8. In paragraph 16 of the father’s Affidavit, the conversation that the father allegedly had with the boy W on 9 March 2018, where the boy says to the father, inter alia:

   I am not going to do what the Court Orders say.  I don’t have to.

   The father responds in this way:

   Why do you feel like you can ignore the Orders?

   And the child then said something about a conversation he had had with his friends, at school.

9. In the mother’s Affidavit, at paragraph 21 – this is her main affidavit – she states that on Monday 5 March 2018 and Tuesday 6 March 2018 she had conversations with the child W, to the effect that W had said to the mother:

   Dad said if you change your mind, and tell the Court that, I won’t have to change schools.

   Dad told me that you put in your affidavit, and you told the Court, that dad’s a drug addict and an alcoholic.  Dad’s been clean for 9 years.

   You and Dad have to do what the Judge said, but I don’t.  Dad even told me he asked his lawyer, and that the lawyer had told him that you and Dad have to comply, but I don’t have to do what the Judge says.  They can’t make me.

10. Again, the Court is of the view that they are, arguably, some examples of the father not facilitating compliance and facilitation of the Court’s Order of 5 March last, that the child attend the (omitted) High School.

11. Even if the Court is incorrect in relation to the matters just stated above, namely that there is a significant suggestion on the material before it that the father has not been proactive in seeking to facilitate the Court’s Order that the child attend the new school, in any event, the Court’s interim judgment of 5 March last took into account the child’s firm views (as expressed to the parties and the Child Inclusive family consultant) in reaching its decision, that the child, inter alia, attend the (omitted) High School presently.

12. The child’s apparent disappointment and opposition to attending the (omitted) High School, post 5 March 2018, was arguably foreseen in the Court’s interim decision of 5 March last.  For example, see paragraph 66 of the Court’s decision and, in this context, the Court had referred in its Reasons for Judgment, to the firm views stated by the child previously to at least the father and the family consultant.

13. On the material presently before the Court, the Court is presented with a fourteen and a half year old child, who is expressing opposition to attending the (omitted) High School.  Taking the father’s case at its highest (noting the mother’s material presently before the Court, that she had not noticed significant symptomology in the child, such as eating problems and the like), in the view of the Court, there is presently insufficient evidence before it to conclude that there has been a material change in circumstances such as to justify the Court suspending or varying its Orders of 5 March last, as sought by the father in the current Application in a Case.  In this context, the Court has had regard to relevant legal principle relating to the rule in Rice & Asplund.

14. The Court refers to the recent decision of the Full Court of the Family Court of Australia, in O’Brien & O’Brien [2017] FamCAFC 219, including paragraphs 21 and 22 of that decision.  The Court is presently of the view on all the material presently before it, and taking the father’s case at its highest, that it will not be in the best interests of the child, W, to make the Orders sought in the father’s urgent Application in a Case.  In this context, the Court again refers to its detailed Reasons for Judgment made on 5 March 2018.

15. Again, the Court is of the view that there has been no relevant material change in circumstances pursuant to the rule in Rice & Asplund and the authorities just referred to, and relevant legal principle relating to the rule in Rice & Asplund.  It is not without relevance that there is presently no significant psychological evidence before the Court and, in the view of the Court the child’s arguable oppositional behaviour, including going to live with the father and refusing to attend the high school, is not sufficiently compelling to justify the Court in finding that there has been a material change in circumstances.  Noting the Court’s decision and Reasons for Judgment of 5 March 2018, the father’s Application in a Case will be dismissed.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Date: 9 April 2018