Metford and Faddin

[2018] FCCA 278

FEDERAL CIRCUIT COURT OF AUSTRALIA

METFORD & FADDIN [2018] FCCA 278

Catchwords:
FAMILY LAW – Change in circumstances demonstrate matter to proceed to hearing.

Legislation:

Family Law Act1975 (Cth)

Cases cited:
Marsden & Winch [2009] FamCAFC 152

Applicant: MR METFORD

Respondent: MS FADDIN

File Number: BRC 9993 of 2017

Judgment of: Judge Cassidy

Hearing date: 13 November 2017

Date of Last Submission: 4 December 2017

Delivered at: Brisbane

Delivered on: 9 February 2018

REPRESENTATION

For the Applicant: Self-represented

Solicitors for the Respondent: Baker O’Brien & Toll

ORDERS

THE COURT ORDERS UNTIL FURTHER ORDER:

1. That the oral application for summary dismissal of this matter, heard by the Court on 13 November 2017, be dismissed.

2. That pursuant to s.62G of the Family Law Act1975 the parties and the children [W] born … 2006, [X] born … 2007, [Y] born … 2009 and [Z] born … 2011(“the children”), attend upon a Family Consultant, as appointed by the Senior Family Consultant of the Federal Circuit Court of Australia, on a date and time to be advised, for the purposes of the preparation of a family report to be made available to the Court.

3. That in addition to reporting any matters that the Family Consultant considers important to the welfare of the children and the factors contained in s.60CC of the Act the following opinions should be included:

   (a)Any views expressed by the children and any factors (such as the children’s maturity or level of understanding) that would affect the weight that the Court should place on those wishes;

   (b)That the matters set out in ss60CC, 61DA and 65DAA of the Family Law Act1975; and

   (c)Any other matters that the Family Consultant considers important to the welfare or best interests of the children.

4. That it should be noted a child should not be required to express his or her views in relation to any matter but in the event that a child does express views, the Family Consultant should also canvass and report the views and likely consequences of and for the children if the Court did not reach a conclusion which accorded with the children’s views.

5. That the Federal Circuit Court of Australia be responsible for payment of the cost of preparation of the Family Report.

6. That the Family Consultant shall have leave to inspect subpoenaed documents produced to the Court. 

7. That upon the Report being provided to the Court, the Court will release a copy to each party (or if represented, to the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.

8. That unless a party objects, in writing, within 14 days of the date of releasing the Report, copies of the Report may further be provided to the following, if the Court is requested to do so, for a purpose related to the care, welfare or development of the children to whom these proceedings relate:

   (a)A Children’s Court;

   (b)A child protection authority;

   (c)A State or Territory legal aid authority; and

   (d)A convener of any legal dispute resolution conference.

9. That unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.

10. That this matter be adjourned for mention at 9:30am on 14 May 2018 in the Federal Circuit Court of Australia at Bundaberg.

NOTATION:

A.At the date on which a copy of the Report is provided to any of those identified above, it may not have been admitted into evidence and may be untested or if admitted, would only form one part of the evidence in the proceedings.

B.Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court.

C.In the event a party to these proceedings objects to the release of the Family Report pursuant to Order (7) herein, they shall write to the Chambers of Judge Cassidy seeking that the matter be listed on short notice for their objection to be heard.

IT IS NOTED that publication of this judgment under the pseudonym Metford & Faddin is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 9993 of 2017

MR METFORD

Applicant

And

MS FADDIN

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application by the father to open up and re-litigate parenting arrangements for four children, [W], born … 2006, [X], born … 2007, [Y], born … 2009, and [Z], born … 2011.

2. The matter was heard and determined by Judge Coates and Orders were made on 14 February 2013. Those Orders provided that the children live with the mother and that she have sole parental responsibility.  The father’s time with the children was from Thursday to Saturday in week two and Wednesday to Saturday in week one.  The other Order that the father argues is relevant, made by Judge Coates, was:

   “That in the event the mother is unable to care for the children for periods of longer than eight hours, the mother is to offer the father a first right of refusal to care for the children during that period.”

3. The father appealed Judge Coates’ decision and the appeal was resolved with Orders that left the father with five nights. They were from Wednesday to Friday in one week and Thursday to Sunday in the other week. 

Background

1. The father was born on … 1973. He is presently forty-three years old.  The mother was born on … 1976. She is presently forty-two years old.  The parties commenced living together on 18 February 2003 and married on … 2006.  The parties separated on 4 August 2011. [Z] was only very young when the parties separated. 

2. The father filed his Application in March of 2012 seeking parenting orders and he was represented at those proceedings.  As I have indicated, Orders were made by Judge Coates on 14 February 2013 and the Orders that settled the appeal were made on 26 August 2013. 

3. There have been a number of attempts at mediation subsequent to the trial and an agreement was reached in October of 2014 to change the parenting orders.  The mother did not wish to continue with this change and stopped the changed arrangements on 20 October 2014. The father then filed his Initiating Application for parenting orders in September 2017. 

The law

1. The submissions of both parties relevantly traverse the law in this area and I accept that the submissions accurately reflect the law in this area.  In Marsden & Winch [2009] FamCAFC 152, the Full Court said 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 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.”

The change in circumstances

1. The father relies on a number of factors that he submits, amount to a change in circumstances that would justify the re-litigation of this matter.  The changes in circumstances are:

   (a)The father is in a committed relationship with Ms AMs A and has a young child of that relationship, [C] who is one year old. The relationship with Ms A has been in place for four years;

   (b)The four children of this matter are now attending school;

   (c)The children are now five years older, which in the case of the youngest child, is significant, given that she was only a few months old when the parties separated;

   (d)There are two children who live with the father who are the children of his partner, Ms A.  They are in his household on a week about arrangement;

   (e)The children and Ms A’s children participate in sport outside of school and at times, play on the same team;

   (f)The children now have iPads and can message the other parent at their discretion;

   (g)Any conflict that has arisen due to the children’s health has been resolved;

   (h)The children are often in before and after school care; and

   (i)The children have expressed wishes to change the care arrangements.

Discussion

1. The changes the father identifies would, in my view, amount to a change in circumstance.  In particular, the fact that the father is in a long term relationship with his partner, Ms A, and they have a child together. 

2. The other factors the father identifies, in my view, would not be determinative, but the children’s views, in conjunction with the change in the father’s relationship status and the addition of a half sibling are sufficient to accept there has been a change in circumstance.  However, the inquiry does not end there.  I have to consider whether there is a likelihood of the Orders being varied in a significant way as a result of a new hearing.  The father is seeking equal shared parental responsibility and an increase in the time from five nights to seven nights.

3. The father set out in his evidence and submissions, the case for further litigation.  Considering the past circumstances and the reasons for judgment, the Court ordered sole parental responsibility to the mother.  The reasons His Honour gave for that can be found in the judgment.  In particular, at paragraphs 26 to 28 His Honour says:

   “26. As to the testing of evidence and Mr B’s opinions, I formed the view that the communication difficulties are really at the heart of the problems for these parents, who on their own I would describe as good parents.”

   27. The inability to communicate has manifested itself in mistrust between the parents over very basic care which is to be provided to young children who cannot make their own decisions.

   28. The clearest example was over health care.”

4. His Honour goes on at paragraph 33 to record:

   “33.I also observed the recurring disagreements in a number of day-to-day issues, which undermine the basis for long term decision making.”

5. His Honour said at paragraphs 48 to50:

   “48. While it was submitted that this will reduce the father’s role by allowing for a situation where the mother makes all decisions in an unchecked manner, not the words used. Mr B’s view has to be considered.  He said there has been so much disagreement that “something has to give”.

   49. I accept that the father wants to be a hands on parent.

   50. I accept that on his own, he could parent the children.”

6. What he does say at paragraph 51 is:

   “51. But I also accept that these parties, on their evidence and that of Mr B, cannot agree on important issues.  Mr B gave evidence of how he came to his conclusion in his report and he also said that a failed mediation conducted in the week of the trial again indicated a failure to be able to agree.  He expressed a lack of faith in communication courses being useful for these parents.”

7. At paragraph 54, His Honour said:

   “54. Despite submissions that in effect the orders should be made to allow the parties to change their dispositions, I cannot make orders on that basis, given that there was no evidence that their positions would change with such orders”

8. The father is seeking equal shared parental responsibility.  There is, in my view, little likelihood that this Order would be varied for the following reasons: 

   (a)The health issues, on the father’s evidence, have resolved, so to that extent, the Order achieved a positive outcome for the children;

   (b)The other significant issues of religion and schooling have, to a large extent, settled and the father has indicated in his evidence and his submissions that the children are doing very well at school.  I note the mother has withdrawn the children, [Z] and Will, from the program for preparing the children for confirmation, the first communion and reconciliation.  This is a potential area of dispute that has been avoided by the sole parental responsibility Order; and

   (c)There seems to be the same difficulties with communication that the original family report writer and Judge observed, as set out in the father’s evidence.  The father’s evidence and the mother’s are replete with annexed text messages that demonstrate this ongoing difficulty with respect to communication. 

9. The pressure the children would face is a significant factor in determining whether to re-litigate the matter.  The change in the number of days and the number of changeovers from the current fortnightly arrangements are the other orders that the father seeks.  The Court might be persuaded that it would be in the children’s best interests, given their age, to have one block of time in the father’s household each fortnight, rather than two blocks of two nights and three nights.  Whether the time would increase to seven nights is less clear.  The question then is the benefit of a change to one block, when weighed against the potential detriment to the children of the litigation continuing.

10. The father raises other concerns about the mother’s failure to offer him an opportunity to care for the children when she has to be away from them for more than eight hours. The evidence from the father’s case is that the mother places them in child care, despite an Order of Judge Coates that requires him to be given an opportunity to care for them.  This is not a matter I can make any findings about, but it may be an issue that might be changed at a hearing to remove the potential for dispute.

11. On balance, I consider there is a demonstrated change in circumstance.  I accept that it is likely that some of the Orders might change.  I can order a family report and hear the matter this year, so the detriment to the children is limited, in that the litigation will not be protracted and a family report may even resolve all issues between the parties.  I accept, in coming to that conclusion, that the Orders of Judge Coates may not change, but there is sufficient evidence of a change in circumstance to justify the inquiry.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Cassidy

Associate:

Date:  9 February 2018