Newman and Wallace
[2012] FMCAfam 523
•5 June 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NEWMAN & WALLACE | [2012] FMCAfam 523 |
| FAMILY LAW – Children – parenting – orders – application to vary previous parenting orders – whether sufficient change in circumstances to justify reopening parenting proceedings – summary dismissal – application for summary dismissal – best interests of the children – insufficiently weighty change of circumstances to warrant re-opening parenting proceedings. |
| Family Law Act 1975 (Cth), ss.60CA, 69ZN Federal Magistrates Act 1999 (Cth), s.17A Federal Magistrates Court Rules 2001, r.13.10 |
| Australian Building Industries Pty Ltd v Stramit Corporation Ltd [1997] FCA 1318 Bennett and Bennett (1990) 14 Fam LR 397; (1991) FLC 92-191 D and Y (1995) 18 Fam LR 662; FLC 92-581 Freeman and Freeman (1987) 11 Fam LR 293; FLC 91-857 Hayman and Hayman (1976) FLC 90-140 King and Finneran [2001] FamCA 344; (2001) FLC 93-079 Lindon v Commonwealth (No.2) [1996] HCA 14; (1996) 136 ALR 251; 70 ALJR 541 Mann & Prewett [2009] FamCA 929 Marsden & Winch [2009] FamCAFC 152 Newman & Newman [2010] FMCAfam 313 Rice v Asplund (1979) FLC 90-725 SPS v PLS [2008] FamCAFC 16; (2008) 39 Fam LR 295; FLC 93-363 |
| Applicant: | MR NEWMAN |
| Respondent: | MS WALLACE |
| File Number: | PAC 2765 of 2009 |
| Judgment of: | Scarlett FM |
| Hearing date: | 28 May 2012 |
| Date of Last Submission: | 28 May 2012 |
| Delivered at: | Sydney |
| Delivered on: | 5 June 2012 |
REPRESENTATION
| Counsel for the Applicant: | Ms Gillies |
| Solicitors for the Applicant: | Marsdens Law Group |
| Counsel for the Respondent: | Ms Kennedy |
| Solicitors for the Respondent: | Smythe Wozniak Solicitors |
ORDERS
The Amended Application filed on 23 May 2012 is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Newman & Wallace is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
PAC 2765 of 2009
| MR NEWMAN |
Applicant
And
| MS WALLACE |
Respondent
REASONS FOR JUDGMENT
Application
This is an Application by the Respondent mother to dismiss the substantive Application by the father of their two children to discharge earlier parenting Orders made in April and October 2010 and substitute fresh parenting Orders.
The mother seeks an order for summary dismissal, submitting that there has only been a limited time since the current orders were made. The mother relies on the well-known decision of Rice v Asplund[1]. The mother also submits that continuation of these proceedings would not be in the best interests of the children.
[1] (1979) FLC 90-725
The father opposes that application, submitting through his counsel that difficulties between the parties have arisen since the current Orders were made, not least being the poor state of communication that now exists between the parties.
Background
The current Orders concern the parties’ two children, X, who was born on (omitted) 2006 and Y, who was born on (omitted) 2008. The Orders were made by Dunkley FM on 16 April 2010 after a hearing that took place the previous day (Newman & Newman[2]).
[2] [2010] FMCAfam 313
In that decision, his Honour noted that the parties had agreed that there should be orders on a number of matters, including:
a)Equal shared parental responsibility;
b)The children should spend equal time with each parent;
c)Arrangements for equal and alternating time at Easter;
d)Equal periods of time during the short school holidays;
e)Longer periods of time in the Term Four school holidays; and
f)Arrangements for Christmas, the children’s birthdays, Mother’s Day, Father’s Day and the parties’ birthdays.
His Honour set out the issues in dispute between the parties in this way:
What was in dispute was the following:
(a) The specific details for the above agreement;
(b) The school that the children should attend when they attained school age.[3]
[3] [2010] FMCAfam 313 at [2]
His Honour went on to consider the parties’ proposals, the background to the case, the parties’ affidavit evidence and their submissions. His Honour noted that the father was represented by counsel, whilst the mother, unrepresented at the hearing, had been assisted by her former solicitors until a few days previously.
Dunkley FM made orders the next day along the lines suggested. They were not consent orders per se, although it was clear that there was a general agreement about the subject matter. However, his Honour made this Order 3:
The children shall be enrolled at and attend a school as agreed by the parties and failing agreement, as selected by the Mother.
The father appealed about this Order. On 25 October 2010 Coleman J ordered:
1. That the appeal is allowed.
2. That Order 3 of 16 April 2010 is set aside.
3. That the children shall be enrolled at and attend (omitted) School.
The father commenced these proceedings by filing an Application and affidavit in support on 9 March 2012. He filed an Amended Application on 23 May 2012.
The mother filed a Response and a supporting affidavit on 20 April 2012.
Orders Sought in the Substantive Application
The father’s Amended Application seeks the discharge of all previous parenting Orders and Orders on an interim and final basis that substantially differ from the current Orders. The father’s proposed Orders would provide that:
a)The father should have sole parental responsibility for the children;
b)The children should spend time with the mother:
i)on alternate weekends;
ii)for half of the school holidays;
iii)on the children’s birthdays;
iv)on Mother’s Day;
v)on the mother’s birthday; and
vi)such other times as the parties shall agree.
c)Orders relating to changeover;
d)Telephone communication;
e)An injunction against using physical force on the children;
f)A requirement that the children have separate bedding and their own separate room whilst in the mother’s care;
g)The parties to maintain a communication book;
h)The parties give consent and sign documents to enable the father to obtain passports for the children;
i)The father to be solely responsible for decisions about the children’s travel both within Australia and outside Australia;
j)An injunction restraining the parties from denigrating the father or members of his family to the children;[4]and
k)An order that the mother pay the father’s costs on an indemnity basis.[5]
[4] Presumably the father will have no difficulty in complying with that proposed order
[5] Counsel for the father advised the Court that this particular order was not pressed.
Curiously, the father’s Amended Application does not seek any order that the children should live with him or spend time with him when they are not with their mother. Presumably, the default position is that the children should be in the father’s care whilst he exercises sole parental responsibility.
Evidence
The father relies on his affidavits sworn or affirmed on 7 March and 17 May 2012. It is evidence that the level of communication between the mother and himself about parenting issues has deteriorated since the current orders were made.
The father concedes in his affidavit of 7 March 2012 that since the Orders were made he and the mother have complied with them, but says that “this has occurred with great difficulty”.[6]
[6] Affidavit of Mr Newman. 7.3.2012 at paragraph [9]
The father deposes that the mother has until 9 February 2012 refused to use a communication book that the father instituted and that the parties are only able to communicate by email. In particular, he claims that there were difficulties involved in the child Y’s transition from nappies into underwear.
The father cites other communication difficulties, summarised by his counsel, Ms Gillies, in her Outline of Case Document:
·Lack of communication in relation to the child X’s pre school arrangements.
·The mother’s inability to be flexible with arrangements leading to X missing out on a full dress rehearsal for a dancing commitment.
·The mother’s refusal to meet with him to discuss X’s transition to school.
·The children’s inability to engage fully in extra-curricular activities because the mother will not permit them.
·The mother’s refusal to participate in mediation through a Family Relationship Centre.
·The mother’s amendment of X’s enrolment form after the father had executed it.
·The mother’s seemingly temporary housing arrangement remaining unchanged.
·The mother’s intention to remarry and move from her current home.
·The mother’s failure to communicate with the father on issues surrounding the children in relation to her future intentions and her failure to reply to his correspondence.
The father also expresses concern about the mother’s partner or fiancé, a man known as Mr M, based on the interaction between Mr M and X which he has heard on the telephone.
Submissions
Ms Kennedy of counsel, who appeared for the mother, submitted that there has only been a limited time since the current orders were made by Dunkley FM and Coleman J and that continuation of these proceedings would not be in the best interests of the children. She referred the Court to the decision of Warnick J in SPS v PLS[7], where his Honour said at [81]:
Thus, in my view, when the threshold question described in Rice & Asplund is determined as a preliminary matter, it remains a determination ‘on the merits’. Where an application is dismissed for some technical reason, such as the failure of a party to appear or some lack of compliance with form and procedure but rather because, assuming the evidence of the applicant is accepted, there is an insufficient change of circumstances shown to justify embarking on a hearing. Though sometimes unstated, the underlying conclusion will or ought (to) be that the interests of the child in not being the subject of further litigation is more powerfully in the child’s welfare than to allow the application to continue[8].
[7] [2008] FamCAFC 16; (2008) 39 Fam LR 295; FLC 93-363
[8] (2008) 39 Fam LR at [81]
Further, it was submitted that there have been no major changes – the parties are living in the same homes and working in the same jobs. Despite the present poor communication, the parties were able to make decisions. It would not be in the children’s interests to recommence parenting litigation.
Counsel for the father submits that his affidavit evidence supports the contention that, long term, the relationship between the parties and their lack of communication does not support the continuation of a shared care arrangement.
Ms Gillies, who appeared for the father, submitted that it was not only the claimed lack of communication between the parties since the Orders were made that was being relied upon. Whilst it had been contemplated at the time the Orders were made that the mother would change her accommodation, she had not done so and the parties live some 45 minutes away from each other. The children were tired as a result of the travelling.
In short, it was submitted that the arrangements made by the Orders of 2010 had been shown not to be working.
The Relevant Law
An application to dismiss an Application to vary or discharge parenting orders under the rule in Rice v Asplund[9], if argued as a preliminary issue, is an application for summary dismissal. It is not, in my view, a separate procedure. There is ample authority that it is a matter for the discretion of the trial judge to deal with a change of circumstances as a preliminary issue, as is the case here, or to proceed to a full hearing (see Bennett and Bennett[10], King and Finneran[11]; D and Y[12]; SPS v PLS[13] and Marsden & Winch[14]).
[9] supra
[10] (1990) 14 Fam LR 397; (1991) FLC 93-079
[11] [2001] FamCA 344; (2001) FLC 92-191
[12] (1995) 18 Fam LR 662; FLC 92-581
[13] supra
[14] [2009] FamCAFC 152
An application for summary dismissal in this Court is dealt with under s. 17A of the Federal Magistrates Act 1999, which allows the Court to dismiss a proceeding if the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding (s. 17A(2)(b)). This is followed by Rule 13.10 of the Federal Magistrates Court Rules 2001, which provides that:
The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding if the Court is satisfied that:
(a) the party prosecuting the proceeding or claim for relief has no reasonable of successfully prosecuting the proceeding or claim;…
There is a wealth of authority on the principles relating to summary dismissal, including Australian Building Industries Pty Ltd v Stramit Corporation Ltd[15], where it was held:
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.[16]
[15] [1997] FCA 1318
[16] [1997] FCA 1318 per Northrop, Lindgren & Lehane JJ
In Lindon v Commonwealth (No 2)[17], Kirby J said at [14]:
1. It is a serious matter to deprive a person of access to the courts of law for it is there that the rule of law is upheld…
2. To secure such relief, the party seeking it must show that it is clear, on the face of the opponent’s documents, that the opponent lacks a reasonable cause of action…
3. An opinion of the court that a case appears weak and such that it is unlikely to succeed is not, alone, sufficient to warrant summary termination. Even a weak case is entitled to the time of a court…[18]
[17] [1996] HCA 14; (1996) 136 ALR 251; 70 ALJR 541
[18] [1996] HCA 14 at [14]
In my view, with respect, the word “alone” in the above decision is important, because the so-called test in Rice v Asplund[19], as developed in later decisions, raises another issue, that of the best interests of the child.
[19] supra
The Rice v Asplund test was enunciated in the earlier Full Court decision of Hayman and Hayman[20]:
Whilst it is true that custody is never final, it is not open to 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 a tribunal can be convinced 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 very real issues to be decided, issues which have arisen since the last hearing which have not been previously traversed.[21]
[20] (1976) FLC 90-140
[21] (1976) FLC 90-140 per Murray and Lusink JJ at 75,679-75,680
In Rice v Asplund it was held by the Full Court that:
The principles which, in my view, should apply in such cases are 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…there is some changed circumstances 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…[22]
[22] (1979) FLC 90-725 per Evatt CJ (Pawley SJ & Fogarty J agreeing) at 78,905
In Freeman and Freeman[23], there was an application to discharge a custody order that was made by consent. The Court held that once a court had settled the question of custody, an order should not be overturned. Strauss J (with whom Bell J agreed) referred with approval to the decisions in Rice v Asplund and Hayman and Hayman[24] and said:
The welfare of the children is, in this case, as in any others concerning custodial arrangements, the paramount consideration. But once the court, either after a full hearing or by a consent order, 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 is an essential prerequisite to their well-being. Another important reason for approaching with some care an application to overturn such a recent order is that the proper and orderly administration of the law in the community of which these children are part requires that orders made in this jurisdiction should not be overturned unless sufficiently weighty new facts and circumstances are shown to exist which throw sufficient doubt on the desirability of continuing the custodial arrangements brought about by the order. Each case must depend on its own facts, but, as a general proposition, it might be said that those new facts and changed circumstances should be such as to necessitate a fresh investigation to safeguard the best interests of the children.[25]
[23] (1987) 11 Fam LR 293; FLC 91-857
[24] supra
[25] (1987) 11 Fam LR 293 AT 297-8
More recently, the way in which a court should approach the question has been set out by the Full Court of the Family Court in Marsden & Winch[26] at [50]:
Whether in a particular case a court should be wiling to embark upon another hearing concerning the child and parent, or whether to do so would itself be demonstrably contrary to the best interests of the child, is a decision to be made in each particular case. How is that decision to be made? 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 a 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.[27]
[26] supra
[27] [2009] FamCAFC 152 per Bryant CJ, Finn & Cronin JJ at [50]
Conclusions
This is a case where Orders were made after a final hearing at which the father had been represented by counsel. Dunkley FM noted also that the wife, whilst unrepresented at the hearing, had had the assistance of solicitors until a few days beforehand. His Honour also noted that the parties had agreed on many issues and sought only specific details to be resolved and, in one case, a particular about the school the children should attend.[28]
[28] [2010] FMCAfam 313 at [1]-[2]
This was not a matter that had been compromised at a time when the parties had not been able to give it proper consideration (see Freeman and Freeman[29]). The Court must proceed on the basis that Dunkley FM and Coleman J found those orders to be in the best interests of the children (see Mann & Prewett[30]).
[29] (1987) 11 Fam LR 293 AT 297
[30] [2009] FamCA 929
The father seeks to make major changes to the parenting arrangements affecting these children, which would involve their spending considerably less time with their mother than is the case at present, because he claims that communication between the mother and himself has deteriorated since the litigation was completed in 2010.
I am not satisfied shows sufficiently weighty circumstances or such a degree of change in circumstances that would justify a re-opening of the parenting litigation which was finalised after a final hearing and an appeal on a limited issue only two years ago.
I am not convinced that the father’s claims warrant a further investigation and the preparation of a Family Report by a Family Consultant, which would involve the children being assessed or interviewed. It is not in the best interests of the children to undergo further disruption of their lives at this stage.
The likelihood of significant change to the current orders if the parenting proceedings were reopened and re-litigated is not very great. The potential detriment to the children in recommencing the parenting litigation is significant. Further litigation at this stage does not appear to be in the children’s best interests. The applicant would need to show a greater change of circumstances than he has in his two affidavits before the matter should proceed.
The Application to discharge the earlier parenting orders and make fresh orders will be dismissed.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 5 June 2012
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