N & M
[2003] FMCAfam 29
•7 February 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| N & M | [2003] FMCA fam29 |
| FAMILY LAW – CHILDREN – Residence – application to vary existing orders – test in Rice and Asplund (1979) FLC 90-725 applied – best interests of the children paramount consideration. PRACTICE AND PROCEDURE – Application of Part 17 – separate decision of question. Family Law Act 1975, ss.60B, 65E, 68F, 79A Australian Building Industries Pty Ltd v Stramit Corporation Ltd [1977] FCA 1318 |
| Applicant: | HMN |
| Respondent: | JSM |
| File No: | PAM 1452 of 2002 |
| Delivered on: | 7 February 2003 |
| Delivered at: | Parramatta |
| Hearing Date: | 5 February 2003 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Roberts |
| Solicitor for the Applicant: | Richardson Burgin Steer |
| Solicitor for the Respondent: | Barber & Massey |
ORDERS
The Application filed on 22nd October 2002 is dismissed insofar as it concerns the application to vary the Orders made by the Family Court of Australia at Parramatta on 6 September 2001.
The Application is otherwise listed adjourned to Monday 24 February 2003 for further mention.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAM 1452 of 2002
| HMN |
Applicant
And
| JSM |
Respondent
REASONS FOR JUDGMENT
This is an application by the mother of two children of the marriage to vary residence orders made by the Family Court of Australia at Parramatta on 6th September 2001. Those orders, which were made after a defended hearing, provide that the two children should reside with the father and that they should reside with the mother on alternate weekends, half of school holidays, and such other times as the parties shall agree.
The mother’s application is that the children should reside with her and the father should have contact each alternate weekend.
In her application, the mother also seeks this order:
“That the Orders made by the Local Court Family Matters at St. James on 13th May 2002 in relation to the change of name of the children be set aside pursuant to Section 79A”.
Background
The parties commenced to reside together in late 1993. The mother has two children from a prior relationship, now aged 14 years and 12 years. Those children reside with her. There are two children of the parties, BDN (now known as M), born 1st May 1993, and K-LN (now known as M), born 17th October 1994. Those two children reside with the Respondent father. The mother also has a child by her current partner, who was born on 8th June 2002. That child lives with the mother.
The parties separated in September 1995 but maintained contact until early 1998, when cohabitation resumed. They again separated but later resumed cohabitation, apparently in late 1998.
The parties were married on 8th July 2000. The mother says that the relationship broke down completely some five weeks later and they separated on 15th August 2000. The Applicant deposes in her affidavit that the father did not return the two children B and K-L after contact on 19th December 2000.
On 6th September 2001, the Family Court of Australia at Parramatta made orders after a defended hearing, providing that the two children should reside with the father. It is these orders that the mother seeks to vary.
The mother has formed a new relationship with a Mr HF and resides with him at SP, New South Wales. She deposes in her affidavit sworn 3rd February 2003 that she and Mr F have been together for in excess of two years.
The mother further states in her affidavit that the children disclosed to her on the weekend of 6th September 2002 that a man who was boarding at the father’s residence had interfered with them. The mother did not return the children to the father and reported the children’s disclosures to the police. The matter was handled by the Joint Investigative Unit, and the children were interviewed on Tuesday 10th September. The father took part in the discussions with the Joint Investigative Unit. After the mother was assured that the perpetrator of the abuse on the children had left the father’s residence, the mother returned the children to the father.
The mother also deposes that on 13th October 2002, the children disclosed to her that the father had hit them and that they had told the Deputy Principal of their school. The mother states that she spoke to the Deputy Principal the following day, who told her “Everything is OK”.
The mother had already commenced these proceedings, although the Application and supporting affidavits were not filed until 22nd October 2002.
The other order sought by the mother is to set aside orders made ex parte by the Local Court Family Matters at St. James on 13th May 2002. Those orders provide that the children’s surname for all purposes would be “M” rather than “N”, and that the father was entitled to have his particulars entered in the Register of Births, Deaths and Marriages as the father of the subject children.
The mother did not attend court on 13th May 2002, when the orders were made, nor was she legally represented. In an affidavit sworn by her solicitor, it appears that the mother instructed him on 9th May 2002 that she would be unable to attend court on 13th May because of difficulties with her pregnancy. The solicitor, who practises at The Entrance, on the Central Coast of New South Wales, deposes that he wrote to instruct his city agent to appear on 13th May and seek an adjournment of the proceedings.
For some reason, not explained in the affidavit, the city agents did not receive those instructions and did not appear at the court on the return date of the application. The orders were made ex parte.
The mother now seeks to have those orders set aside, and relies on section 79A of the Family Law Act 1975.
The Respondent father has applied to the Court to dismiss the mother’s application, relying on the matters set out in the judgement of the Full Court of the Family Court in Rice & Asplund (1978) 6 Fam LR 570; (1979) FLC 93-079. It is the father’s submission that the case brought by the mother did not satisfy the test in Rice & Asplund, that there has been such a change in circumstances since the orders were made as to require the court to reopen the question of the residence of the children.
When the matter came before me on 5th February 2003, I informed the parties that I would consider the father’s application as a threshold test. I heard oral submissions from the lawyers for each party and I received a written submission from the mother’s counsel.
I reserved my decision and, on perusing the application and the material which had been filed on behalf of the mother, directed my Associate to contact the parties’ lawyers to inform them that I wished to hear submissions on the other part of the mother’s application, namely the application to set aside the orders of the Local Court, relying on section 79A of the Family Law Act. As it happened, Counsel for the mother was taken ill and was unable to attend court to make that submission, so I have adjourned that part of the proceedings to the 24th February 2003 for further mention. Part 17 of the Federal Magistrates Court Rules 2001 permits the Court to make a separate decision on a question.
Principles to be applied
The Applicant submits that what is being sought is, in fact, summary dismissal of the application, so that the ordinary principles relating to summary dismissal should apply. The Full court of the Federal Court has held in Australian Building Industries Pty Ltd v Stramit Corporation Ltd [1977] FCA 1318 that:
“A proceeding should not be dismissed summarily merely on the ground that it appears at an early stage of the hearing of the motion brought for that purpose, to advance a highly implausible claim which will very probably fail.”
The Applicant also refers to the judgment of Kirby J in Lindon v Commonwealth (No. 2) (1996) 136 ALR 251 at 255-6:
“An opinion of the court that the case appears weak and that it is unlikely to succeed is not, alone, sufficient to warrant termination…Even a weak case is entitled to the time of a court.”
The Full Court of the Family Court has, in a series of judgments, placed residence (formerly custody) matters in what appears to me to be a special category, governed by the principle that a court should not lightly entertain an application to reverse an earlier residence order. In Hayman (1976) FLC 90-140, the Full court considered with approval the decisions of McManus 13 FLR 449 and an unreported decision of Barber J in the Supreme Court of Victoria in Gilder (17th February 1967). In their joint judgment, Murray and Lusink JJ stated:
“Whilst it is true that custody is never final, it is not open top an unsuccessful party to return to Court repeatedly in the hope of obtaining a favourable order. It may be that circumstances have altered to such a degree that it is essential in the interests of the child that questions relating to custodial arrangements be re-litigated. However, it is accepted that there must be real issues to be decided, issues which have arisen which have not been previously traversed.”[1]
[1] At 75, 679 and 75, 680
This principle was continued in the well-known decision of the Full Court in Rice & Asplund (1978) 6 Fam LR 570; (1979) FLC 90-725, where the Full Court held that:
“The court should have regard to any earlier order and to the reasons for and the material on which that 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 is 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.”
This matter was considered by the Full Court in Freeman (1987) FLC 91-857, where there was an application to discharge a custody order that had been made by consent. The Full Court held that once a court had settled the question of custody, an order made should not be overturned unless sufficiently weighty new facts and circumstances were shown to exist which threw sufficient doubt on the desirability of continuing the custodial arrangements effected by the order. Those new facts and circumstances should be such as to necessitate a fresh investigation to safeguard the best interests of the children. Strauss J referred in his judgment to the fact that the matter sought to be re-opened was one that had been concluded by consent orders.
“When that order was made the matter was about to be heard in the defended list. It was not a matter which was compromised at a time when the parties had not been able to give it full and proper consideration. Each party had filed a number of affidavits…A full welfare report had been prepared and had been made available to each of the parties. As the husband stated, he settled on counsel’s advice.”[2]
[2] At 76,470
His Honour went to point out that “the alleged changes in circumstances were, in my view, no more than the kind of changes that often occur in the lives of people of the ages of these parties.”
In Bennett (1990) 14 Fam LR 397; (1991) FLC 92-191, the Full Court considered the question of whether this issue should be heard as a discrete threshold question or, as was suggested in Rice & Asplund, as a matter to be considered on a final basis:
“These are not necessarily matters for a preliminary submission, but they are matters that the judge should consider in his reasons for decision.”[3]
[3] Evatt CJ, at 78,905
The Full Court held in Bennett that it is a matter of discretion as to whether a Judge embarks upon a full hearing of a matter or determines the threshold question as to a change in circumstances. The Full Court referred to an unreported decision of the High Court in Lowe v Lowe
(6 April 1990), where the trial judge had dealt with threshold question as a preliminary matter and the High Court thought that it was within his discretion to do so.In King and Finneran (2001) FLC 93-079, an appeal from the decision of a Federal Magistrate, Collier J held that it is clear that a trial judge has a discretion as to whether or not to deal with the matter at a threshold level or to embark upon a full hearing. His Honour went on to deal with the way in which a court applies the required test:
“To apply the test in Rice and Asplund is to make an assessment on the material then available to the court as to whether or not the matters raised in that material make it necessary or proper in the best interests of the children, the subject of the 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 revisiting the earlier decision.”[4]
[4] at 88,367
Collier J referred to the decision of the Full Court of the Family Court in D and Y (1995) FLC 92-581 where the discretion of the trial judge to deal with a change of circumstances as a preliminary issue or to proceed to a full hearing was affirmed. The Full Court held that, in circumstances where the issue of custody had been litigated on defended basis a little over two years previously, a judge would be extremely loath to reopen the issue of custody except on strong grounds.
“The change or fresh circumstances must be such that upon being advised of its existence, a court would be left in no doubt that it was necessary to relitigate the parenting issue in dispute between the parties. That is not to say that a court must be satisfied that the fresh or changed circumstances would result in a change to the orders. It merely indicates that the change or fresh circumstances must be such that if taken into account there is a real likelihood that a change may follow.”[5]
[5] at 88,368
The principles to be derived from these authorities would appear to be these:
(a) The onus is on the applicant who seeks to reverse an earlier residence order to satisfy the court that there has been a change in circumstances since the original order was made sufficient to require the matter to be relitigated;
(b) The principal is the same whether the earlier order is one made after a defended hearing or one which was made by consent, provided that the relevant issues were considered;
(c) There is a discretion in the trial judge or Federal Magistrate to decide the question of a change in circumstances as a preliminary issue or to proceed to a full hearing;
(d) The change in circumstances must be sufficient to warrant a re-examination of the issue of residence, but need not satisfy the court that those changed circumstances would result in a change to the orders, only that there is a real likelihood of such a change; and
(e) The evidence of changed circumstances to be considered by the court is not restricted to the evidence available at the time the application was commenced, but is the evidence available at the time the circumstances are considered by the court.
Conclusions
In this case, the applicant relies on her affidavit which was filed in court on 5th February 2003. Much of the affidavit refers to the history of the parties before the decision was made by the Family Court on 6th September 2001, some seventeen months ago. The changed factors claimed by the applicant are set out by her counsel in his written submission:
· “The disturbing and unsatisfactory matters outlined in respect of the welfare of the children
· the disparity in the ability of the parties to adequately provide for the needs of the children
· the stability of the applicant’s personal life
· the allegations of physical and psychological abuse
· the allegations concerning the moral welfare of the children
· the enormous disparity in the quality and stability of accommodation each party is able to provide.”
Counsel for the applicant argues that these are arguable issues which should go to trial. The actual changes since the orders were made in September 2001 appear to be these:
(a)the mother and her partner have obtained a new home;
(b)the children say that they wish to live with her rather than their father;
(c)their father yells at them;
(d)the children’s table manners have deteriorated;
(e)the children need dental treatment;
(f)the children were abused by a boarder called “Eddy”;
(g)their father had hit them.
I am not satisfied that the applicant has shown that there have been changes sufficient to justify re-opening the question of residence which was decided by a defended hearing in the Family Court in September 2001. The mother is in the same relationship with Mr F as she was when the matter was heard; she deposes in her affidavit that she has been a relationship with him for more than two years. The fact that they have moved house is hardly significant.
The allegations of abuse are vague and unsubstantiated. It is certainly a matter of concern that a boarder in the father’s home apparently touched the children in an inappropriate manner, but the facts clearly show that the man has left the house and no longer resides there. There is no suggestion that the father had any knowledge of the matter before the children disclosed it to the applicant.
A deterioration in the children’s table manners is not of sufficient weight to justify relitigating the question of residence, and the mother’s evidence that the children say that they wish to stay with her at the conclusion of contact is not unusual in matters of this nature.
All in all, the mother does not demonstrate any change in circumstances that would require a re-examination of the question of residence. The application will be dismissed
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: A. Coutman
Date: 11 February 2003
4