Paglietta and Caracini

[2008] FamCA 725

FAMILY COURT OF AUSTRALIA

PAGLIETTA & CARACINI [2008] FamCA 725

FAMILY LAW – PRACTICE AND PROCEDURE - Application - Dismissal or Striking Out - Rice & Asplund
FAMILY LAW – COSTS - Circumstances justifying order

Family Law Act 1975 (Cth)

Rice & Asplund (1978) 6 FamLR 570

APPLICANT: Mr Paglietta

RESPONDENT: Ms Caracini

FILE NUMBER: SYC 2546 of 2008

DATE DELIVERED: 11 August 2008

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Justice Le Poer Trench

HEARING DATE: 11 August 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Mulvey

SOLICITOR FOR THE APPLICANT: Logical Legal Solicitors

COUNSEL FOR THE RESPONDENT: Ms Cleary

SOLICITOR FOR THE RESPONDENT: Georgiou & Co

Orders

1. The Response to an Application in a Case filed by the mother on 13 June 2008 be dismissed.

2. I reserve each party’s costs to be determined by the trial Judge or by application once final parenting orders have been made.

3. I request the docket Registrar list this matter before herself for directions for the parties to meet with a Family Consultant.

IT IS NOTED that publication of this judgment under the pseudonym Paglietta & Caracini is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 2546 of 2008

Mr Paglietta

Applicant

And

Ms Caracini

Respondent

REASONS FOR JUDGMENT

1. Before the Court are competing applications between the parents in relation to the only child of the union, born in June 1997, now 11 years of age.  The proceedings were commenced on 5 May 2008 by application for final orders filed by the father.  In that application, in general terms, he seeks an order for equal shared time in respect of the child on a week about basis. There are other orders sought along with that principal application. 

2. 2.        The mother filed a response on 11 June 2008 and she sought that the husband's application be dismissed.  The application is framed having regard to the decision of Rice & Asplund (1978) 6 FamLR 570. In that decision at page 572 the following was said by the Full Court:

   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 invite endless litigation for, as Mr Brand submitted, 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 (passage quoted in Hayman (1976) FLC 90-140).

   These are not necessarily matters for a preliminary submission but they are matters that a judge should consider in his reasons for decision.  It is a question of finding that there are circumstances which require the Court to consider afresh how the welfare of the child would best be served.  These principles apply whether the original order is made by consent or after a contested hearing.  The way they apply and the factors which will justify the Court in reviewing a custody order will vary from case to case.  Once the Court is satisfied that there is a new factor or a change in the circumstances then the issue of custody is to be determined in the ordinary way.

3. In this matter there were orders made by consent on 12 November 2001. I am told, and accept, that the orders were made after some portion of a defended hearing had occurred.  At the time the child was four years of age and the orders provided for a stepped program of time the child was to spend with his father.  However, the arrangement quickly moved to an arrangement where the child spends each alternate weekend with his father from after school Friday until Monday morning and each Tuesday from after school until 7 pm.  There are also provisions for half-school holidays and other special occasions. 

4. Those orders have been in force since 2001 and that arrangement has been taking place.   The father in his affidavit material outlines a number of changes which have occurred over that time.  Firstly, the child is now 11 years of age.  He is in fifth class at school and will commence in year six next year.  The child has expressed to his father dissatisfaction with the current arrangement. More importantly in paragraph 17 of his affidavit the father says this:

   [The child] has told me that his mother and [Mr G] regularly argue in front of him and [Mr G] has thrown objects during these arguments towards his mother and these objects have narrowly missed [the child].  [Mr G] said to [the child] "Your dad is not a bad person; I don't blame you for wanting to live with him because your mother is a fucking bitch."  His mother said, "When your father goes I hope you are going to sell his house."  I reported this matter to DOCS who documented this matter.

5. The conversations and actions are denied by the mother and her partner.  In addition, since 2001 the mother and her partner have had a child born to their relationship and that child is now about two years of age.  The mother says that there is a good and close relationship between her son with the partner [Mr G] and [the child] and that [the child]’s absences from the house are noted by the younger child who appears to be disturbed by those absences.  She has a concern for the development of the brothers’ ongoing relationship if [the child] was to spend more time with his father. 

6. Since the orders were made in November 2001 there has been a substantial change to the Family Law Act. With effect from 1 July 2006 the Act now requires that:

   In circumstances where an equal shared parental responsibility order is made the Court must consider making an order for equal time for the child or children to spend with each of the parents. 

7. That was not a provision which was in operation in 2001 when the parties litigated the case.  I should say at this stage that in my experience it is an unusual circumstance for an application to be made in the nature of that being pursued today.  It seems to me that if the application is to have success it really has to establish that there is very little or no benefit to flow to a child of any changed orders to those that currently exist or very little or no benefit to flow to the child from the Court re-hearing matters relating to the time the child spends with each of his or her parents.

8. These applications, commonly referred to Rice & Asplund applications, are generally dealt with as part of a final hearing.  Nothing prevents the mother in making further applications for the proceedings to be dismissed but at the very least it seems to me at this time such an application is premature. Given the changes which have occurred since 12 November 2001 I would not dismiss the father's application. Consequently, I will today dismiss the mother's application for the father's application for final orders filed 5 May 2008 to be dismissed.

Costs

1. There is an application before the Court for the mother to pay the father's costs of the application heard and determined by me today. Costs in this Court are governed by s 117 of the Family Law Act. S 117 provides, in broad terms, that in the ordinary circumstances each party should pay their own costs associated with proceedings in this Court. S 117(2A) sets out a number of matters which the Court is required to have regard in determining an application for costs.

2. The first of those matters relate to the financial circumstances of the parties.  In this case there is precious little in the way of evidence before me about the parties' financial circumstances.  I know in broad terms matters about their circumstances but in broad terms is not sufficient to do justice in a case such as this in making a costs order.  I am required to take into account whether either party to the proceedings is in receipt of assistance by way of Legal Aid. In this case the answer is no, but I am told that the husband has the services of an attorney by the pro bono system, however, counsel has been retained in a different fashion in a commercial sense.

3. I am required to take into account whether any party to the proceedings has been wholly unsuccessful in the proceedings and in this case, at this stage, the mother has been wholly unsuccessful. 

4. I am required to take into account any offer in writing. No evidence is before me that any such offer has been made however the parties' applications are clear enough offers. I am required to take into account such other matters as the Court considers relevant.

5. In relation to those other matters one of the important matters will be, of course, ultimately what happens in terms of the proceedings which are about to commence in respect of the care of the child.  In my view it is premature to make any order for costs at this stage so I would reserve each party's costs of the application determined by me so that costs are to be determined by the trial judge or by application once the final orders in respect of the child have been made.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench.

Associate: …

Date:  27 August 2008