O and G
[2007] FMCAfam 506
•19 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| O & G | [2007] FMCAfam 506 |
| FAMILY LAW –Application to vary existing parenting orders – consideration of application of the test in Rice and Asplund as a discreet issue and whether test satisfied. |
| Family Law Act 1975, Part VII |
| Rice and Asplund (1979) 6 Fam LR 570 Bennett (1991) FLC 92-191 D & Y (1995) FLC 92-581 King and Finneran [2001] FamCA 344 |
| Applicant: | SJO |
| Respondent: | RG |
| File Number: | NCC453 of 2007 |
| Judgment of: | Lapthorn FM |
| Hearing date: | 17 July 2007 |
| Date of Last Submission: | 17 July 2007 |
| Delivered at: | Newcastle |
| Delivered on: | 19 July 2007 |
REPRESENTATION
| Solicitor for the Applicant: | Mr Coyle |
| Solicitors for the Applicant: | The Family Law Firm |
| Counsel for the Respondent: | Mr Williamson |
| Solicitors for the Respondent: | Thompson Norrie Solicitors |
ORDERS
The application filed on 12 June 2007 is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT NEWCASTLE |
NCC453 of 2007
| SJO |
Applicant
And
| RG |
Respondent
REASONS FOR JUDGMENT
Introduction
Before the Court is an application for parenting orders in relation to a seven year old child, EAG. E was born on 7 July 2000. Her mother, SJO brings the application seeking an order that E live with her and that she have sole parental responsibility for E. The Respondent father RG asks the Court to dismiss the application.
The mother’s application was filed on 12 June 2007 and was granted short service. The matter came before the Court on 25 June 2007 and was adjourned to 17 July 2007 for a preliminary hearing to consider a threshold question as to the test in Rice and Asplund[1]. Notwithstanding this, I invited Mr Coyle, solicitor for the mother, to argue whether I should exercise my discretion to proceed on the threshold issue separately from the context of a substantive hearing. I also heard argument as to whether the test had been satisfied.
[1] (1979) 6 Fam LR 570
During the course of the hearing I exercised my discretion to have the matter heard as a separate issue.
Background
The parties commenced to live together in a de-facto relationship in 1989 or 1999 and separated in October 2004. E is the only child of their relationship. She has lived with her father since separation. The mother has two other children who live with her JR who was born 30 November 1995 and ER born 17 January 1998. E has been diagnosed with Verbal and Motor Dyspraxia.
On 24 January 2006 the parties entered into Terms of Settlement and on that day the Court made orders in accordance with their agreement. The orders provided for E to live with her father and spend time with her mother each alternate weekend from 5.00 pm Friday to 5.00 pm Sunday. There was also provision to extend those weekends to a Monday in the event of them occurring on a long weekend as well as school holiday periods and other special occasions.
These consent orders were very detailed and included a number of specific issues orders. Some of the significant orders provided for the parents to have joint responsibility the long term care, welfare and development of the child; the mother was permitted to liaise directly with E’s school in relation to her progress; both parties were restrained from changing the child’s name without the consent of the other party; there were restrictions on the use of tobacco, alcohol, illegal and prescribed drugs by both parties; there was a mutual non-denigration order; the mother was prohibited from allowing the child to come into contact with her step-father LJT; the father was restrained from taking the child with him on animal hunting trips and he was not permitted to skin or dissect animal carcasses in the presence of the child. Obviously much thought went into the preparation of the orders and I note that both parties were legally represented at the time.
In February of 2007 each party filed contravention applications against the other. When the matters came on for hearing on 17 May 2007 they reached agreement and again entered into Terms of Settlement. These terms noted the mother’s admission to contravening the orders prohibiting the child from coming into contact with Mr T. The parties agreed to amend that particular order to enable the child to be present when Mr T was around provided certain other named people were also present and the child does not stay overnight at any place where Mr T is staying. The mother’s contravention application was withdrawn and dismissed and each party agreed to attend a Post Separation Parenting Programme.
By the time the mother filed her application in June this year the original consent orders had been in place for less than 18 months and less than one month had passed since they had been amended.
Law
In cases such as this the Court is usually reluctant to entertain a fresh application for residence because it is rarely in a child’s best interest to have ongoing litigation about their care and wellbeing. The Full Court of the Family Court in Rice v Asplund[2] held:
“The court should not lightly entertain an application to reverse an earlier custody order. It would need to be satisfied by the Applicant that there was some changed circumstance which would 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. These are not necessarily matters for preliminary submission, but they are matters that the judge should consider in his reasons for decisions.”
[2] (1979) 6 Fam LR 570
It is for the court to exercise its discretion in deciding whether to embark upon a full hearing of a matter or to determine the threshold issue as a discreet point[3].
[3] Bennett (1991) FLC 92-191, D & Y (1995) FLC 92-581
His Honour Justice Collier in King and Finneran said:
“To apply the test in Rice v 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.”[4]
[4] [2001] FamCA 344 at paragraph 44
His Honour also said:
“The rule in Rice v Asplund is a rule evolved to protect children from involvement in further unnecessary litigation. To require a court to make a detailed determination of the matters set out in S 68F would defeat the purpose of that protection.”[5]
[5] ibid at paragraph 41
Discussion
The mother alleges that on 8 June 2007 she collected E from the father so she could spend time with her that weekend. The mother noticed that the father had a black eye. The child told the mother, after being questioned by her, that she and her father went to the Branxton Rodeo and afterwards to the home of a friend. The child is alleged to have told the mother that the father got drunk and that on the way home he told her to: “go away and get out of my life”.
The mother says that the child told her that she walked home and that she was let into the house by the father’s girlfriend; that her father had slept on the side of the road; had a black eye and broken ribs.
The mother says that this is evidence of the father neglecting E and exposing her to danger. The mother concluded that the father had abused E. Because the mother formed this view she did not return the child to her father.
The mother gave evidence of conversations she had with the father wherein the father tried to explain what had occurred. The mother alleges that the father told her that he had come down with a bug and was vomiting and that he told the child to run home and that she did as she was told. The mother still refused to hand the child over to the father.
The father’s case is that he took his daughter to the rodeo at Branxton and then back to his friend’s home. The father left the child in the care of a 24 year old friend well known to the child. The father says he was playing some backyard football with five other men and he sustained a hit in the left eye. He says he did not break any ribs and that he did not require any medical attention for the black eye that developed. He says that he slept in his swag outside in his friend’s backyard and the child slept inside the house on the lounge. He says that in total he drank three stubbies of beer all night.
According to the father the child had been vomiting on the Thursday night prior to the weekend and that he had caught it off her. He said that he woke early on the Sunday morning and was vomiting profusely. He decided to wake the child at 5.30 am and they left to walk home at 6.00 am. He gave evidence that he was not able to drive as he was still vomiting and feeling unwell. He gave evidence that he just wanted to get home to his own bed as he was feeling sick.
He says that it was not dark as alleged by the mother. However I find that in early June at 6.00 am in the morning it would have been dark.
He said that the walk back to his house took 15 minutes rather than the usual 10 minutes as a result of him having to stop to vomit. He said that when he got to the corner of his street he stopped to vomit again and told the child go on home. He was only four houses away from their home at the time. He gave evidence that he watched her walk ahead. He saw the child knock on the front door and that his girlfriend, Talla opened the door to let her in.
He denies ever saying at any stage to the child for her to go away and to get out of his life.
I find that on the evidence that the mother has not established that the father’s behaviour is abusive or neglectful of the child. Whilst it is not desirable for young children to be walking in the dark at around 6.00am in winter there is no history of this being a regular event and in the circumstances of the father being unwell it was certainly more appropriate for him to walk the child than attempt to drive the short distance. The mother was not present to observe any of this behaviour and was relying on the child’s version of events. The mother does not allege that this is a regular occurrence. The event is not a significant one warranting the re-opening of a determination of where this child should live.
The mother gave evidence that she had re-partnered with a gentleman by the name of ML. She says he is a boilermaker in regular employment and that they have developed a close and very happy relationship. There is no affidavit filed in support of the mother by Mr L.
The mother says that in January 2007 she told the father that she had started to see somebody and that he became angry and started yelling at her. She sets out a number of comments the father is alleged to have said to her or sent to her by text messaging. Most of the mother’s evidence in this regard however does not indicate that the comments were made to the mother in the presence of the child. The comments allegedly made on 25 January 2007 were over the phone although the mother says the child and others were present and the father was yelling. Those comments however formed part of the mother’s contravention application that she withdrew on 17 May 2007. I take that fact into account.
There are already orders in place prohibiting either party from denigrating the other and the other’s family in the presence or hearing of the child. Denigration of a parent by the other to the child is of serious concern. However even if the court were to accept the mother’s evidence it falls short of establishing that there is a pattern of inappropriate behaviour by the father in front of the child.
The mother says that in considering her application the court should take into account that she entered into the consent orders in January 2006 as a result of reading the Family Report that was prepared by Ms Sanson-Fisher and released by the court on 22 December 2005. In that report it was recommended that E continue to live with her father. The report writer concluded at paragraph 25:
“Ms. O has recently moved to a new area and has only her best friend and her new partner as supports. E reported that Ms. O’s new partner hit her in the chest, which is of great concern. Ms. O’s extended family resides in the Gosford area and she is estranged from her father. Unfortunately, her mother is in a relationship with a confirmed sexual paedophile and Ms. O and Mr. G were adamant that E not be exposed to this man. Therefore, Ms. O has limited family support. She has two children to care for, with one child having a disability.”
The mother’s current partner is not the same man referred to in that paragraph.
The mother’s step-father Mr T was convicted in 1997 of one count of Sexual Intercourse without Consent and one count of Commit an Act of Indecency. He served about two years in gaol before being released on parole. Mr T accepts responsibility for his criminal offences which involved a 15 year old girl who was related to his then partner. He says that this conviction caused him much anguish, embarrassment and remorse and that he deeply regrets this period in his life. He says that he currently enjoys a happy and affectionate relationship with his wife and that the works for the Sanitarium Health Food Company. He says he leads a quiet life and that he would not engage in any of the conduct to which he has previously served time. He says he is now a decent and law abiding citizen. He has the support of his wife whom he married after his release from gaol. Mrs T is fully aware of his convictions.
In determining the threshold test the court should take into account any new factor that has arisen or some material factor which was not disclosed at the previous hearing. The evidence of Mr and Mrs T does not disclose any new factor other than the contravention of the order prohibiting the child from coming into contact with Mr T in December 2006. The other evidence about his lifestyle after serving his term of imprisonment would have been available for the mother to put before the court in 2006. The report writer’s conclusion that Mr T was a confirmed paedophile was also open to challenge in 2006.
The mother also says that she is able to care for J and E and that the family report writer’s implied concerns about the mother’s ability to care for the third child has now changed. I find that although it is positive that the mother has achieved greater stability than when she agreed to the orders and has the support of the organisation Life Activities I find that this does not amount to a significant and substantial change of circumstances sufficient to warrant re-litigating E’s care.
To re-consider parenting orders each time a parent has found improvements in their position runs the risk of exposing children to ongoing litigation. That is one of the reasons why the courts have consistently held that any change must be significant and substantial. Change is a fact of life for all families. For an applicant to succeed in overcoming the test in Rice and Asplund the change or changes of circumstance must be greater than would ordinarily occur over time[6].
[6]See Collier J in King and Finneran [2001] FamCA 344 at paragraph 49.
Although I have found that, on their own, the points raised by the mother would not be sufficient to warrant an embarking on new litigation I have also considered them collectively. Having done so I am still left with the impression that there has not been a significant change of circumstances.
I am satisfied that it is appropriate to consider this matter as a discreet threshold issue and I am further satisfied that the mother has failed to establish on the balance of probabilities that there has been a significant change of circumstances. I find that it is not in the child’s best interests to have the matter re-litigated.
For these reasons I dismiss the application.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Lapthorn FM
Acting Associate: Helen Drysdale
Date: 19 July 2007
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