Ogden and Marano
[2010] FMCAfam 219
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| OGDEN & MARANO | [2010] FMCAfam 219 |
| FAMILY LAW – Children – Rice & Asplund argument – application of father for variation of 2005 order allowed to proceed. |
| Family Law Act 1975 (Cth) |
| Caracini & Paglietta (2009) FamCAFC 188 Marsden & Winch (2009) FamCAFC 152 Miller & Harrington (2008) FLC 93-0838 Rice & Asplund (1979) FLC 90-725 SPS & PLS (2008) FLC 93-363 |
| Applicant: | MS OGDEN |
| Respondent: | MR MARANO |
| File Number: | SYC 4367 of 2009 |
| Judgment of: | Baumann FM |
| Hearing date: | 15 December 2009 |
| Delivered at: | Brisbane |
| Delivered on: | 8 March 2010 |
REPRESENTATION
| Solicitor for the Applicant: | Ms Knox |
| Solicitors for the Applicant: | Broun Abrahams Burreket |
| Counsel for the Respondent: | Mr Corish |
| Solicitors for the Respondent: | Staunton & Thompson |
ORDERS
That the application by the mother that the father’s application filed 5 November 2009 be dismissed, is dismissed.
That the matter be listed for directions at 9.30am on 15 April 2010 for further mention before Federal Magistrate Baumann at the Federal Magistrates Court of Australia in Sydney.
IT IS NOTED that publication of this judgment under the pseudonym Ogden & Marano is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
SYC 4367 of 2009
| MS OGDEN |
Applicant
And
| MR MARANO |
Respondent
REASONS FOR JUDGMENT
Introduction
On 15 December 2009, by telephone, I heard submissions on behalf of MS OGDEN (who I shall call “the mother”), that the application by MR MARANO (who I shall call “the father”) filed 5 November 2009 seeking orders to vary parenting orders, be dismissed, applying the principles of Rice & Asplund (1979) FLC 90-725.
The father seeks to vary a final consent order made 5 April 2005, as subsequently varied by orders made 2 February 2007. The parenting orders relate to the only child of the relationship between the parties, [X] (born [in] 2004) – who is now aged six years.
Before turning to the particular facts of this case, it is appropriate to observe that although the case of Rice & Asplund was decided in 1979, the “Rule” arising from that case has been a part of the settled law applied at first instant level regularly and not the subject of significant Appellant review until a string of cases more recently decided and published (see for example SPS & PLS (2008) FLC 93-363; Miller & Harrington (2008) FLC 93-0838); Marsden & Winch (2009) FamCAFC 152) and Caracini & Paglietta (2009) FAMCAFC 188.
It is not necessary to conduct an extensive analysis of the various Full Court decisions in this case, save to adopt for guidance the recent summary of the principle found in Marsden & Winch (supra), where at paragraphs [57-58] the Full court said:
“57.In Miller & Harrington (supra) the Court posed the question:
105. Adopting the language used by Warnick J in SPS and PLS (supra), the question for consideration is: assuming the evidence of the [applicant] so accepted, is there a sufficient change of circumstances shown to justify embarking on a hearing?
58.That question might be better formulated in another way in the following proposition, namely that there is a requirement:
(1) For a prima facie case of changed circumstances to have been established; and
(2) For a consideration as to whether that case is a sufficient change of circumstances to justify embarking on a hearing.
To put the father’s application into context, the current orders (being as earlier observed a 2005 consent order and some variations in 2007) provided essentially that:
(a)[X] shall live with the mother;
(b)the parents have, as was then the term, “joint responsibility for making decisions about the long term care, welfare and development of the child”.
(c)from January 2010 (when the child had turned six years of age), the child is to spend time with the father for:
- each alternate weekend from 5.00pm Friday to 5.00pm Sunday;
- each Wednesday from after school until 7.00pm;
- half of the school holidays (which have not yet commenced);
- on special days and occasions including Christmas Day; the child’s birthday and Father’s Day.
(d)changeovers are to occur at McDonalds Restaurant, [omitted].
A number of what could be called “the usual specific issues” orders were incorporated in the orders as currently apply.
The father’s application, whilst seeking an order in terms which adopts the current terminology (e.g. “that the parties have equal shared parental responsibility”), essentially proposes to increase the time the father spends with [X] by:
(a)extending alternate weekends from after school Friday to before school Monday (extended to before school Tuesday or after school Thursday if public holidays on a Friday or Monday occur);
(b)extending the after school Wednesday visit each week to before school Thursday;
(c)providing for a parent’s birthday;
(d)also seeking differently worded and in some ways expanded specific issues orders.
The father relied on his affidavits filed 24 July 2009 and 16 November 2009. Although, in these applications, it is usual to take the applicant’s evidence at its highest and determine whether a sufficient and material change of circumstances has occurred to justify requiring the parties to relitigate (with all the consequences for the child that are likely to follow), Ms Knox for the mother invited me to read the mother’s affidavit filed 24 November 2009 as well as the expert report dated 17 March 2005. No objection to me doing so was raised by Mr Cornish, who appeared for the father, who himself made submissions based on the expert report.
MOTHER’S SUBMISSIONS
The mother contends that:
(a)The problems in the relationship identified by the expert Dr R in his report still exist. The parties fail to communicate effectively, but this is not a change in circumstances since 2005.
(b)The mother is concerned that the child would not cope with the additional time sought by the father, and points to the opinion expressed in 2005 by the expert that if the father had “an increased role or a shared parenting role” … “there would be much more chance for increase conflict between the parents because of the need for frequent communication and contact between them and joint decision making”.
(c)The father is merely seeking to “tinker” with the orders by increasing the time from two nights a fortnight to five nights a fortnight.
(d)There is no evidence to suggest that child has expressed a desire for more time.
(e)Allowing the mater to proceed will involve the child in further interviews.
FATHER’S SUBMISSIONS
The father submits that:
(a)The parties separated when the mother was 16 weeks pregnant and the father argues that communication between them has been and remains poor. The father asserts this is entirely the fault of the mother.
(b)The parties relied heavily upon the opinion of Dr R in 2005 which anticipated what would be best into the future.
(c)The child is now well aware of the parental conflict, and the changes suggested by the father, whilst increasing the nights, has the benefit of reducing the potential for conflict and confusion with changeovers at school.
(d)Any litigation, if allowed to proceed, would be a simple hearing; not complex; and involving only six or seven points of difference.
EVALUATION
When orders on a final basis are made when a child is very young, the future arrangements are usually the culmination of some parenting experience; at times (as here) the opinion of an expert speculating in a theoretical fashion as to future developments and a degree of uncertainty as to the changes each parent will experience in their own personal relationships, work and the like.
It is also fair to say when, as was the case here, an order is made by consent when the child is only 15 months old, that it was to be hoped by the Court making the order, that the parents would “grow” into the role of a parent and awaken to the benefits a child is likely to obtain from a meaningful relationship with both parents. When that occurs, many of the issues which can be overcome with a sensible degree of flexibility and insight simply do not arise.
The affidavits of both parties, which identify a series of factual disputes and strongly held positions, might ultimately lead to a finding that both parents have at times failed to show insight. I make no such finding, but make this observation that as the Rule in Rice and Asplund (1979) FLC 90-725 is a manifestation of the best interests principle which is the paramount consideration, it seems clear to me that if the matter is not resolved now (as to the extra time the father seeks and which may make changeovers easier for the child), then it is likely to continue to arise as an issue with more devastating emotional effect as the child grows older.
In one sense, the father’s application does merely seek to achieve changeovers at school after weekend and Wednesday time – however, I agree with the mother that the effect on the child could be more substantial. Of course, a real benefit to the child is an equally likely possible outcome.
When Dr R, doing no doubt the best he could at that time, came up with his reconsiderations, he did so, after interviews in February 2005 over five years ago. The child was still being breastfed. The father was having limited (yet regular) day time contact.
[X] is now at school. She has been having overnight time with her father for a year.
Furthermore, the current orders provide (at order 5(d)(iii)), that the child spend “one half of every gazetted school holiday period”. This means from at least from the end of term 1 this year, [X] will spend a period of continuous nights much greater than two weekend nights leading, under the order, to seven nights in the mid year and spring holidays and up to three weeks at Christmas 2010.
The mother’s material, where she says that the child may not cope well with the additional nights, suggests the mother herself might have serious issues with the school holiday arrangements.
For all their reasons, I have come to the conclusion that it is in the best interests of the child for the father’s application to proceed.
Turning briefly, having made this determination, to the mother’s response filed 24 November 2009, it is noted that the mother seeks the reappointment of Dr R to prepare a new report. As I have not taken any submissions on this application from the father, it is proper that I now list the mater before me for directions to hear submissions on that issue.
The orders shall be as appear at the commencement of these reasons.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Baumann FM
Date: 8 March 2010
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