ODJ and Osy - [2003] FMCAfam 415

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ODJ & OSY

[2003] FMCAfam 415

FAMILY LAW – Children – residence – application to vary existing orders – application of test in Rice and Asplund (1979) FLC 90-725 – best interests of child.

CHILDREN – Child abduction – child’s name placed on Airport Watch List.

Family Law Act 1975 ss. 60B; 65E; 68F

Rice & Asplund (1978) 6 Fam LR 570; (1979) FLC 90-725
Hayman (1976) FLC 90-140
Bennett (1990) 14 Fam LR 397; (1991) FLC 91-191
D and Y (1995) FLC 92-851
Freeman (1987) FLC 91-857
King & Finneran (2001) FLC 93-079

Applicant:

DJO

Respondent:

SYO

File No:

PAM 2777 of 2003

Delivered on:

3 September 2003

Delivered at:

Parramatta

Hearing date:

1 September 2003

Judgment of:

Scarlett FM

REPRESENTATION

The Applicant:

In person

The Respondent:

In person

ORDERS

The application filed on 11 July 2003 is dismissed;
The name of the child, RAJO born on 3 October 1987 is to be removed from the airport watch list maintained by the Australian Federal Police forthwith.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

PAM 2777 of 2003

DJO

Applicant

And

SYO

Respondent

REASONS FOR JUDGMENT

Application

This is an application by the father of a boy called RAJO, who is aged 15 years and 11 months, to reopen residence orders which were made by consent in the Family Court of Australia at Parramatta on 6 December 2002.
The orders that he seeks are set out in his application which was filed on 11 July this year. The orders are sought both on a final basis and on an interim basis, although when the matter came before the Court on 1 September which was the first return date of the application, the father indicated that he was not pressing that the orders should be made on an interim basis.
The orders therefore that are sought are these:
a)that the child RAJO shall live with the father on a shared care basis as follows:
b)each alternate week from after school Friday to before school Monday such weeks shall commence on the first Friday immediately following school holiday periods;
i)for one half of all school holiday periods being by mutual agreement between the father, the mother and the child whether this be the first or the second half of any school holiday period;
ii)at all such other times as may be agreed.
c)the alternate weekly residence periods shall be suspended during all school holiday periods;
d)either party be and hereby are restrained from removing and or causing or allowing the child RAJO born 3 October 1987 to be removed from the Commonwealth of Australia;
e)it is further ordered that the Australian Federal Police place the name of the said child on the Airport Watch List in force at all international points of arrival and departure in the Commonwealth of Australia and maintain the child's name on the Watch List until further order of the Court.
The mother opposes this application and has filed a response in which amongst other things she seeks summary dismissal of the application. She asks for these orders:
a)that the orders sought by the husband in his application file on 11 July 2003 be dismissed;
b)that the husband be restrained by way of injunction from doing any act or commencing any proceedings which would have the effect of precluding the child of the marriage RAJO born 3 October 1987 from leaving the Commonwealth of Australia;
c)that the husband pay the wife's expenses of attending Court.
The application came before the Court on Monday, 1 September 2003 and I heard submissions on that date from the applicant and the respondent.
The parties were married on 7 December 1985. The applicant is now 48 years of age and the respondent is now aged 47. They separated on 18 November 1999. There is one child of the marriage, R who was born on 3 October 1987. He is 15 years and 11 months old. He resides with the respondent.
The parties commenced proceedings in the Family Court of Australia at Parramatta shortly after separation and certain interim orders were made by consent on 3 December 1999 and 10 February 2000. On 27 June 2000 the parties entered into consent orders on a final basis. They were both represented by counsel at the time.
The consent orders referred to both parenting and property matters. The relevant parenting orders were these (and I quote):
1(a) The parties shall retain responsibility for the long term care, welfare and development of the child RAJO born 3 October 1987.
2. The child RAJO born 3 October 1987 shall live with the father as follows:
I will summarise these:
(a)each alternate weekend;
(b)from after school on the Wednesday immediately following the alternate weekend residency until before school the following day;
(c)for a period of 4 weeks commencing at 9 am on the first Monday after the end of school term in December 2000;
(d)subject to (c) above and unless otherwise agreed for one half of all school holiday periods;
(e)at such other times as may be agreed.
Other orders included an arrangement for suspension during school holidays of alternate weekend and Wednesday evening residency.
(i)Order 4 stating that the child shall live with the mother at all other times;
(ii)each party shall be entitled to telephone contact with R at all reasonable times that R resides with the other party;
(iii)each party shall be responsible for the day to day care, welfare and development of R whilst he resides with that party;
(iv)each party is at liberty to attend R's football matches and practice sessions and any other significant sporting activity involving R;
(v)an order relating to the wife making available copies of wedding and family photos and school records;
(vi)an order restraining each party from molesting, annoying, harassing or abusing the other, attending the others place of employment, attempting to enter the place of residence of the other party except for residence changeover and from telephoning the other party except for arranging residence to R or in respect of issues as to R's welfare.
It was noted that the wife would retain R's New Zealand passport:
i)provided that the wife shall give to the husband 10 days written notice of her intention to take R out of the Commonwealth of Australia;
Orders 12 through to 17, inclusive, related to property matters between the parties which are not relevant here. Orders 18 and 19 were machinery orders to deal with the matter on a final basis.
On 22 January 2001 an urgent application was brought in the Federal Magistrate's Court relating to the mother taking the child, R, out of Australia the following day for a visit to Canada and New Zealand.
The parties were not legally represented but Mr Richard Battley of counsel acted as amicus curiae and prepared some minutes of consent orders.
The application came before me and those orders which I made by consent were as follows:
(1)The mother, at the mother's expense, shall cause the child of the relationship RAJO who was born on 3 October 1987 to telephone the father once a week whilst the mother and the said child are outside the Commonwealth of Australia.
(2) The father is at liberty to telephone the said child at reasonable local hours.
(3)The father shall have compensatory residence periods in February and March 2001 for the residence periods missed due to the Canadian/New Zealand sojourn.
There was an Order 4 whereby the wife undertook to return the child to Australia by not later than midnight on 16 February 2001 and subsequent orders 5, 6, 7 and 8 which were orders restraining the wife from exposing the child to members of a group known as the PB and other orders followed on from there, which are not relevant to the proceedings before me today.
On 17 April 2002 the mother commenced further proceedings in the Family Court. The father filed a response and on 6 June 2002 an order was made that the child be legally represented pursuant to section 68L of the Family Law Act. Neither the father nor the mother was legally represented.
On 6 December 2002 the parties consented to further orders that discharged most of the orders that had been made by consent in the Family Court on 27 June 2000. Those orders that were discharged were orders 2, 3, 4, 7 and 11 of the orders made on 27 June 2000.
Order 2, it may be recalled, was the order divided into five subparagraphs relating to when the child would live with the father.
Order 3 related to alternate weekend and Wednesday evening residence periods, Order 4 was an order that the child should live with the mother at all other times. Order 7 was the order relating to the parties liberty to attend R's football matches and other sporting activity, Order 11 was the order that provided that the wife shall give to the husband 10 days written notice of her intention to take R out of the Commonwealth of Australia.
The orders that remained were orders 1, 1(a), 5, 6, 8, 9 and 10 as well as the property orders. Order 1 of course just discharged earlier orders, Order 1(a) was the order where the parties retained the responsibility for the child's long term care, welfare and development.
Order 5 was the order about telephone contact at all reasonable times,
Order 6 was the order about each party being responsible for R's day to day care, welfare and development whilst he was with that party.
Order 8 was the order about the wedding, family and school photos.
Order 9 were the orders restraining the parties from acting in certain ways that were proscribed.
Order 10 was the order that the mother would keep the child's passport and the other orders of course were the property orders. That was the position with the orders that remained.
Those consent orders of 6 December 2002 which were prepared by the child representative, Mr Davis of the Legal Aid Commission of NSW, also added these orders to the remaining orders of 27 June 2000:
(2)The mother shall not hinder or prevent the child making arrangements with the father to spend time with him and she will do all she reasonably can to facilitate any such arrangements of which she is informed by the child being carried into effect.
(3)The mother shall not make alternate arrangements for the child to any she is aware being discussed or arranged between the child and the father in relation to residence or contact of the child with the father.
(4)The mother shall not undertake any act which will negatively impact on or damage the child's relationship with the father or which will alienate the child from the father.
(5)The mother shall give to the father 10 days written notice or 24 hours in the case of emergency such as death or serious illness of a family member of her intention to take the child RAJO out of the Commonwealth of Australia.
(6)Each party shall give to the other no less than 14 days written notice prior to any change of their residence.
(7)Either party shall give to the other no less than 14 days written notice prior to any change of the residence of the child RAJO.
The current position relating to parenting orders between the parties can be summarised in this way. There is no residence order as such and the only contact order is Order 5 made on 27 June 2000 relating to telephone contact. There are the orders relating to the party's joint responsibility for long term care, welfare and development and day to day care welfare and development of the child. The latter being when the child is with that party.
There are then the three specific issues orders which prevent the mother from hindering or making other arrangements or doing something which would negatively impact in respect of the child's dealings with the father.
There are the orders about giving the father 10 days written notice of taking the child out of the Commonwealth and the two orders relating to giving written notice about change of residence of any of the parties. The order relating to R's New Zealand passport remains in force, that having been an order made on 27 June 2000.
So the current arrangements are of a relatively liberal characterisation with certain restrictions on the parties as far as interfering with the child's relationship and the specific arrangements relating to taking the child out of the country and in what circumstances.
On 11 July 2003 the father filed the current application at this Court. As can be seen he sought to reopen the question of residence and to place restrictions on the child being removed from Australia. He did not mention in his affidavit, in support of the application, that the mother and the child were in fact booked to leave Australia for a visit to New Zealand on Sunday, 13 July 2003.
The application filed by the father did not seek an order that the matter be heard ex parte or on short notice and it was allocated a return date on Monday, 1 September 2003.
Notwithstanding the fact that the father did not seek any urgent hearing from the Court, he did approach the Australian Federal Police to have the child's name placed on the airport watch list. This was done and the mother did not find out about it until, as she deposed in her affidavit, she rang the Australian Federal Police on Saturday, 12 July.
Eventually the father attended at the airport the following day and gave his permission for the child to leave Australia. The parties attended counselling at the Court on Wednesday, 27 August 2003, there was no agreement.
The issues between the parties are that the mother opposes the father's application to reopen the question of residence that was decided by consent last December. She also opposes the child's name being placed on the airport watch list, saying that she has not breached any Court order. The father says that the current arrangements for residence do not work and that the child himself wishes to have orders for shared residence made.
The mother says that the Court should grant an injunction restraining the father from bringing a further applications to stop the child from leaving Australia, saying that the father is misusing the airport watch list system to force her to agree to unnecessary residence orders.
The issues then are these, first should the question of residence be reopened, second should the parents be restrained from removing the child from Australia and third should the father be restrained by injunction from bringing further proceedings to restrain the child from leaving Australia?
The principles that should be considered have been covered in a number of decisions of the Full Court of the Family Court of Australia. The Full Court has placed residence, formerly custody matters, in what appears to me to be a special category governed by the principle that a Court should not likely entertain an application to reverse an earlier residence order.
In the decision in Hayman reported in (1976) FLC 90-140 the Full Court considered with approval the decisions of McManus reported in 13 Fam LR 49 and an unreported decision of Barber J in the Supreme Court of Victoria in a matter entitled Gilder heard 17 February 1967.
In their joint judgment in the matter of Hayman, Murray and Lusink JJ, stated:
“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 it is essential in the interests of the child, but questions relating to custodial arrangements be relitigated. However, it is accepted there must real issues to be decided, issues which have arisen which have not been previously traversed”.
This principle was continued in the well known decision of the Full Court in Rice v Asplund (1978) 6 Fam LR 570, (1979) FLC 90-725. The Full Court of the Family 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 of the Family Court in a decision 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 has settled the question of custody an order made 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 affected 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”.
In that case His Honour went on to point out that the alleged change in circumstances were, in his view, no more than the kind of changes that often occur in the lives of people the ages of the parties.
As to whether this matter should be considered as a preliminary question or whether it should be heard as part of a final hearing the authorities make it clear that the Court can deal with the matter either way. The decision in Rice v Asplund itself suggests that in many cases the matter can be decided as part of a full hearing, but in the decision in Bennett (1990) 14 Fam LR 397, (1991) FLC 90-191 the Full Court held that:
It was a matter of discretion as to whether a judge embarks upon a full hearing of the matter or determines the threshold question as to a change in circumstances.
This matter was affirmed by the decision of Collier J in King v Finneran (2001) FLC 93-079 which was an appeal from the decision of a Federal Magistrate, his Honour, was sitting as the Full Court of the Family Court. His Honour, 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 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. 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”.
His Honour, referred to the decision of the Full Court of the Family Court in D v 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 a defended basis a little over 2 years previously a judge would be extremely loath to reopen the issue of custody except on strong grounds.
The principles to be decided that would arrive from these authorities as relevant to this case 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.
d)The principle 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.
e)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.
f)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 change.

The orders that are in force in this matter are specific issues orders with the exception of Order 5 made on 27 June 2000 which is an order for telephone contact. There are of course the two orders relating to the sharing of long term and day to day care, welfare and development of the child.
The father's affidavit consists of some 36 handwritten paragraphs. No issue was taken with the fact that the affidavit does not comply with the Federal Magistrate Court rules, but I do not wish to be seen to endorse the practice of filing documents that do not comply with the rules. The rules make it clear that documents filed in this Court must be typed in at least 10 point or hand printed. It is not, however, a matter on which this case will turn.
Paragraphs 1 to 12 of the father's affidavit contain a history of the proceedings between the parties up to the making of the consent orders on 6 December 2002. Paragraphs 13 to 26 contain assertions by way of a submission, a number of these paragraphs beginning with the words, "I believe", as in paragraph 13 or, "I say" as in paragraphs 15, 16, 17, 18, 19, 20, 21, 23, 24, 25 and 26. They are assertions which are essentially rearguing issues that should have been taken into account when the parties entered into consent orders in December 2002.
Paragraphs 27 to 34, inclusive, refer to matters that took place between late 1988, as set out in paragraph 27, and the making of the consent orders in this Court on 22 January 2001. In particular the father refers to the fact that the child has had New Zealand citizenship since 1996 and has been the possessor of a New Zealand passport since 1998.

I note that the issue of the New Zealand passport was in fact covered by the consent orders of 27 June 2000, namely, paragraph 10 and was an order that was left undisturbed by the consent orders of 6 December 2002.
The affidavit makes no mention at all of the mother's intention to leave Australia for New Zealand on Sunday, 13 July 2003 although, the father was clearly aware of that fact. The father, by his actions in lodging the application on 11 July and making application to the Australia Federal Police that same day to have the child's name placed upon the airport watch list, was obviously aware of the plans for the mother and child to travel to New Zealand that weekend. If the child's name were to be placed on the watch list those plans would be thwarted, at least temporarily, unless the father gave his consent, which he did on the Sunday.
The mother says in paragraph 20 of her affidavit that she had informed the father in writing by a letter dated 2 July 2003 as required by the orders of her plan to take R to New Zealand for a week and that the child telephoned the father the following day and informed him of that fact. The mother annexes to her affidavit a copy of a receipt from Australia Post dated 2 July 2003.
I note that Sunday, 13 July was part of the middle weekend of the New South Wales school holidays. I also note that the mother is a citizen of New Zealand whose parents reside in that country. There is no issue as to the fact that the mother resides permanently in Australia and is in employment. The child is in year 10 at P High School and a copy of his half yearly school report is annexed to the mother's affidavit. He appears to be doing well at school and the report shows that he has had no days absent this year up to 1 July 2003.
The father submits that the current arrangements are not working and he has seen less of his son than he did prior to the consent orders of 6 December 2002. He provided no evidence of that in his affidavit material. He says that the child wishes to have the arrangements reconsidered by the Court, but his affidavit contains no reference to anything that his son has said.
I am not satisfied that the father has shown any change of circumstances that would justify reopening the question of residence. The evidence in his affidavit is essentially a rearguing of the issues that should have been considered at the time when the consent orders were entered into.
The father has not shown any reason why the consent orders were not properly considered as the proceedings had been on foot for 8 months and the child was legally represented even though the parties were not. They were, however, no strangers to litigation and they had been legally represented in earlier proceedings in the Family Court.
There has not been shown any new facts and circumstances which throw sufficient doubt on the desirability of continuing the arrangements that the parties agreed to less than 9 months ago. The application for residence orders should be dismissed.
Turning now to the question of the reasons for placing the child's name on the airport watch list and restraining either party from removing him from Australia. The father says that such restrictions are necessary because of the reasons set out in paragraphs 34 and 35 of his affidavit. Those two paragraphs I will quote. Paragraph 34:
“I say that in late January 2001 the mother did not comply with Court orders regarding notification of proposed overseas travel with R and I was concerned about R's return to Australia. I made an application to the Federal Magistrates Court on 22 January 2001 and consent orders were entered into binding the mother to return R to Australia and binding and restraining the mother in relation to other aspects of the travel”.
Paragraph 35:
“I say that the mother's behaviour in relation to overseas travel with R is such that I cannot trust her, cannot believe any undertaking she may make and have real fears that unlawful removal of R from Australia may take place without my permission”.
The matters referred to in those paragraphs all pre-date the consent orders of 6 December 2002. I believe that the following considerations are relevant:
a)The child holds duel New Zealand and Australian citizenship and has a New Zealand passport.
b)His maternal grandparents reside in New Zealand.
c)The father has shown no evidence that the mother intends to remove the child from Australia permanently.
d)Australia and New Zealand are both parties to the convention on the civil aspects of international child abduction known as The Hague Convention.
e)Whilst there is evidence that the mother and child have visited members of her family in Canada and Germany in the past, both of these countries are also parties to The Hague Convention.
f)The father has brought no proceedings against the mother in respect to the recent visit to New Zealand alleging any contravention of Order 5 made on 6 December 2002.
g)The child is 15 years and 11 months of age as at today's date and it would appear to me that there would be some difficulty in persuading the child to leave the country against his will.
The matters set out are such that I consider that there is no reason for the child's name to remain on the airport watch list.
The mother also seeks an order by way of injunction, restraining the father from bringing such actions in the future. I am mindful of the fact that this is not the first time that the father has taken action to place the child's name on the watch list and I note that on a previous occasion the matter came before me in this Court. I am also of the view that his actions in this matter were unnecessary.
The father's application in respect of the airport watch list verges on the vexatious and he needs to be aware that any further application of this nature will need to be based on a more solid foundation than the fact that he has changed his mind or wishes to air old grievances. I do not believe that it is necessary at this stage to make an order that would deprive a party of his right to bring proceedings in the future. Right of access to the Courts should not be taken away from a citizen without a very good reason.
Had the mother been legally represented in these proceedings I would have given favourable consideration to making an order for costs in her favour.
The orders that I propose to make are those that appear at the beginning of this decision.
I propose to order a transcript of my reasons for this decision.
I will arrange for a copy of these orders to be issued out of the Court and as I said I will be ordering a transcript of my reasons for these decisions and that matter will be available in due course.

I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: S. Polley

Date: 16 September 2003