Perowe & Eddelson
[2021] FCCA 1683
•23 July 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Perowe & Eddelson [2021] FCCA 1683
File number(s): HBC 1268 of 2020 Judgment of: JUDGE TAGLIERI Date of judgment: 23 July 2021 Catchwords: FAMILY LAW – children – interim – Rice & Asplund threshold hearing – where final orders previously made by consent – where mother contends that her change in residence and the child’s issues at school are sufficient to satisfy the Rice & Asplund threshold – where father seeks that the mother’s application is dismissed – change in circumstances ruled insufficient to satisfy the Rice & Asplund threshold – application dismissed Legislation: Family Law Act 1975 Cases cited: Bendon & Bendon [2021] FamCA 396 at [18] to [23]
Defrey & Radnor [2021] FamCAFC 67 at [16] to [22]
Rice & Asplund (1979) FLC 90-725
SPS & PLS [2008] FamCACF 16 at [81]
Number of paragraphs: 39 Date of hearing: 19 July 2021 Place: Hobart Solicitor for the Applicant: Ms S Dalwood of Ogilvie Jennings Solicitor for the Respondent: Ms S Mead of Tremayne Fay Rheinberger ORDERS
HBC 1268 of 2020 BETWEEN: MS PEROWE
Applicant
AND: MR EDDELSON
Respondent
ORDER MADE BY:
JUDGE TAGLIERI
DATE OF ORDER:
23 JULY 2021
THE COURT ORDERS THAT:
1.The application for final orders filed on 12 March 2021 is dismissed pursuant to s.45A(2) of the Family Law Act 1975.
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Perowe & Eddelson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE TAGLIERI
These proceedings concern a child, X who was born in 2008 (“the child”). The father Mr Eddelson (“the father”) made an application for contravention of Final parenting Orders (“the final orders”), which had been made by consent on 24 September 2019. The mother Ms Perowe (“the mother”) made an application for variation of the final orders about three months after the father's contravention application had been filed.
On 3 May 2021, the matter was listed for directions before Judge Dunkley. At this time, orders were made that the contravention application by the father be listed for sentence on 6 May 2021, presumably because there had been some admissions by the mother. In addition, the mother’s Initiating Application to vary the consent orders was adjourned for further directions to the same date.
On 6 May 2021, Judge Dunkley heard from the parties’ solicitors and the Court made orders that:-
1.[The mother] is found to have contravened on 2 occasions without reasonable excuse but less serious contraventions prior parenting orders.
2.Pursuant to section 70NEB(1)(b) compensatory time between [the child] and the father shall occur by extending the school holiday period that [the child] spends with his father in July 2021 pursuant to the existing orders such that that period is to conclude at 3pm on 8 July 2021 and that [the child] shall spend further compensatory time with his father from 10am on 4 September 2021 to 5pm on 5 September 2021.
3.The Application for Contravention filed 18 December 2020 is otherwise dismissed.
Procedural orders were also made on 6 May 2021, that the father file and serve a response and affidavit in respect of the mother’s Initiating Application and that the mother file and serve such further affidavit relevant to the principles in Rice & Asplund (1979) FLC 90-725. The proceedings were adjourned to “determine whether there is a threshold Rice and Asplund hearing”.
When these matters came before me on 5 July 2021, the parties’ counsel informed me that it was agreed that there should be a preliminary hearing for the threshold Rice & Asplund issue. It was agreed by the parties that this should be dealt with as a discrete or separate issue. Accordingly, I adjourned the proceedings for such a hearing and also ordered that the mother serve her affidavit in compliance with the earlier order of Judge Dunkley of 6 May 2021 by 4:00pm on 16 July 2021.
On 16 July2021, the mother did file a further affidavit in which she sets out, rather briefly, the claimed change in circumstances relied upon for the purposes of the threshold Rice & Asplund hearing.
THE THRESHOLD HEARING
At the commencement of the hearing on 19 July 2021 I enquired of counsel whether there was any scope for the parties to reach agreement, either about the threshold issue or the mother’s application to vary the consent orders. The parties agreed to have some discussions and the Court stood the matter down.
After the parties returned, what appeared to be an agreed position (the detail of which is not currently relevant) ultimately was indicated not to be agreed by both parties.
The father's counsel submitted that the hearing of the threshold issue should proceed. The mother's counsel did not oppose this course.
THE PARTIES’ CONTENTIONS
The variations sought to the orders of 24 September 2019 are identified in the mother’s application for final orders, filed 12 March 2021. The orders she seeks are:-
1THAT the final orders relating to [the child] dated 24 September 2019 ‘the Orders’) be varied as follows:
a.Paragraph 5 of the Orders be amended to replace ‘Suburb B McDonalds’ with ‘Suburb C Police Station’.
b.Paragraph 8 of the Orders be deleted.
c.Add ‘That the parties are restrained from engaging in, or encouraging or asking any third party to engage in, behaviour intended to threaten, harass or intimidate the other parent.’
Counsel for the mother indicated that she relied upon the mother’s affidavit of 16 July 2021 alone and it was taken as read into evidence. Further, she made oral submissions in which she simply contended that there were material changed circumstances, namely:-
(a)the evidence that the mother had moved residence (a fact which was undisputed by the father); and
(b)that there was evidence of the child experiencing difficulties at school and that the mother is not satisfied with the how the high school has been handling him and his educational needs.[1]
[1] See paragraphs 13 to 15 of the mother’s affidavit of 16 July 2021.
In essence, the mother's counsel submitted that although there was limited evidence about the nature of the changed circumstances relied upon at this juncture, it was sufficient and capable of being regarded as evidence of material or significant change, which warranted the Court giving consideration to whether the parenting orders should be varied, on a merits basis, due to the paramountcy of the best interests of the child.
The father’s counsel contended in essence that there was no evidence of a change in circumstances that legally warranted revisiting the final orders made in 2019. The father sought an order that amounted to a summary dismissal of the mother’s Initiating Application. It was submitted that the evidence relied upon by the mother for the purposes of the threshold issue did not rise to the level which demonstrated a material change in circumstances sufficient to favourably invoke the Court’s discretion to consider variation of the orders previously made.
In support of the submissions referred to at [13], a case outline had been filed which helpfully identified the material relied upon for determination of the threshold issue. The outline stated reliance on the affidavits of the mother filed 12 March 2021 and 16 July 2021 and the affidavit of the father filed 2 July 2021. The father’s affidavit and the mother’s earlier affidavit were also taken as read into evidence unopposed.
The father’s case outline provided written contentions making reference to authorities said to be supportive of dismissal of the mother’s application. They have been considered and are consistent with that [13] and [14] above.
EVIDENCE BEFORE THE COURT
The mother’s evidence is that the parenting orders came into existence following a period of mediation post separation and subsequently by making of consent orders after she commenced proceedings in the Federal Circuit Court in 2019.[2] This evidence is an abridgement of the relevant history of disagreement and proceedings between the parties concerning the child.
[2] Paragraphs 6 and seven of affidavit of the 12 March 2021.
The court record indicates that there were consent orders made on 6 March 2015 and parenting plans dated 16 November 2018 and 20 December 2018. The orders which are now sought to be varied were made upon an Application for Consent Orders filed on 26 August 2019.
I observe that differences about the history of the parties’ parenting issues referred to at [16] and [17] above are important. They reflect that the parties have had longstanding disagreement concerning various care arrangements for the child and despite this they made application for final orders to be made by consent in 2019.
The evidence about the “changed circumstances” relied upon since the final orders were made enables the Court to make findings based on what are agreed or undisputed facts in the parties’ affidavits. The findings are these:–
(a)That the mother moved from Suburb D to Suburb E, and now lives in Suburb F in Housing Tasmania property;
(b)The child has moved from Suburb B Primary School to the high school, which are situated at adjoining sites at Suburb B;
(c)The distance between the mother’s place of residence at Suburb F and the high school is within the 30 kms referred to in paragraph 8 of the final orders; and
(d)The mother is in receipt of Centrelink benefits, and it can be inferred has limited disposable income after payment of necessities of daily living for herself and the child.
During the hearing, I enquired of the father’s counsel if he conceded that the mother had limited income being Centrelink benefits and what if any notice or weight I could give to many and various media reports in recent times about affordable housing shortages, particularly for those with socio-economic disadvantage.
Counsel submitted that I could take judicial notice of housing shortages for low income persons, but emphasised that the mother’s current permanent housing was within the 30km radius contemplated by the final orders. From this submission, I infer that the father accepts that the mother’s financial position at the time of the final orders and now is low income and not materially different; and that it was not unreasonable for the mother to move to Suburb F. I note that the move is not in contravention of the final orders.
Regarding the mother’s assertion of material change based on the child’s schooling, the mother’s evidence is limited about claimed change in circumstances, as I observed a number of times during the hearing. Counsel for the mother, to her credit, took responsibility for the shortage of detail in the mother’s affidavit of 16 July 2021. The evidence about the changes relied upon are at paragraphs 13 to 16 of the mother’s affidavit. Those paragraphs, at their highest convey that:-
(a)She has had disagreements with Suburb B High School (“the high school”) about them contacting the father to assist with calming the child down and/or asking that he be collected from school;
(b)She has complaints about how the school manage and support the child during school; and
(c)She disagrees with assessments made about the child’s progress in a school report.
The affidavit material contains no evidence about what the mother has done to raise her concerns and have the high school address them. In addition, there is no evidence about what alternate school she proposes the child attend. Her counsel conceded that as there was an order for shared parental responsibility and paragraph 23 of the final orders provided for a process of future dispute resolution, variation of order 8 of the final orders was not necessary.
The father’s affidavit contains considerably more detail about the child’s schooling.[3] It does concede that there have been some difficulties with the child’s behaviours since moving to the high school. However, he opposes the variation sought to the orders and contends that the difficulties at the high school are not changed circumstances and/or do not qualify for changed circumstances meeting the Rice & Asplund requirements.
[3] Paragraph 7
CONCLUSION
The orders made in 2019 are very detailed. They encompass how the parties are to parent the child into the future (eg. Paragraphs 6 – 14 including references to schooling, non-denigration and restraints). They expressly contemplate that a party may relocate their residence.
It is notable that each party was legally represented at the time the final orders were made by consent. Registrar Weidman had requisitioned the parties in respect of the Application for Consent Orders and additional detail was provided to him which satisfied him that he ought to make the final orders in the best interests of the child.
The variation of the final orders according to paragraph 1c. of the mother’s application is said to be required to afford necessary protection of the mother at handover, but there already are orders that afford that protection, in particular 6, 11 and 16. If the father fails to comply with these, the mother could bring a contravention application, and that is procedurally the appropriate manner of ‘remedy’.
In relation to the variation of paragraph 8 of the final orders, it was contended that this was required to enable discussions about reaching an agreement about an alternate school for the child due to dissatisfaction with the high school, whether it was jointly held or no longer in the child’s best interests to attend there.
When the Court raised the fact that the order for equal shared parental responsibility and paragraph 8 of the final orders, contemplated that the parties may change the child’s education/school arrangements and a process for addressing this already (paragraph 23 of the final orders), the mother’s counsel agreed.
The variation sought to order 5 of the final orders by the mother, seeks amendment to the changeover location and was first raised in her affidavit of March 2021. In it, she states that it is more convenient to her to have changeover at Suburb C Police Station and it would make her feel safer.
Nowhere in the mother’s affidavit material is there evidence of when the change in residential address took place. However the mother states that in April 2020 there were “problems with the orders”.[4] This date coincides with the second alleged contravention, referenced in the father’s contravention application as referenced at [2] of these reasons.
[4] The mother’s affidavit filed 12 March 2021 at para 15.
It is notable that the mother’s variation application was only made after the contravention proceedings. It is demonstrated by the evidence in the mother’s affidavits that she only raised the issue of amendment to orders relating to changeover in response to the father’s contravention proceedings. This strongly suggests that inconvenience due to the location of the mother’s new home rather than the welfare and interests of the child. If it were otherwise, the application for variation would have been expected earlier rather than after the application concerning the alleged contraventions, in which the mother conceded two breaches of the final orders without reasonable cause.
Although the mother now claims that there are changed circumstances in the child’s schooling and difficulty at handovers at the high school, the evidence of that is very limited. More importantly, the relied upon change in circumstances are factors already foreshadowed by the final orders given the extensive history of difficulties in co-parenting between the parties as reflected in the nature of the past interim orders and final orders in 2015, past parenting plans and the final orders.
Because the facts and circumstances now sought to be relied upon by the mother to revisit the final orders are all matters contemplated and foreseen when the final orders were negotiated, agreed and then made, in my view they do not satisfy the type of material or significant change capable of meeting the threshold level required to properly allow this Court to exercise discretion and revisit the final orders.
I was concerned that the admission by the mother’s solicitor about shortcomings in affidavit material may unfairly prejudice the mother in the determination of the threshold issue. However, no adjournment was sought on behalf of the mother to adduce additional evidence for the purposes of the threshold Rice & Asplund hearing.
Regardless of shortcomings in the level of detail in the mother’s affidavit material, having regard to the full history and course of the past proceedings and the timing of the present proceedings, I am satisfied that even if the mother were to adduce more detailed evidence about the claimed changed circumstances, it would not alter my conclusion at [35]. Evidence that may be capable of being adduced about the changes relied upon, do not alter the fact that the claimed change in circumstance are not in fact changed. Rather, they were always contemplated circumstances and provided for in the final orders.
In short, changes in circumstances that are expected and foreshadowed when final orders are made and in terms that provide for that change, are not of the quality or nature of change in circumstances, which invoke the discretion to revisit final orders. This reasoning in my view accords with the principles that have been well established for some time and are usefully referred to by Jarrett J in discussing Rice & Asplund in SPS & PLS [2008] FamCACF 16 at [81], with whom I respectfully agree.
The mother has failed to provide evidence of change in circumstances rising to the level of material or significant changes relevant to the best interests of the child. The mother’s application for final orders filed on 12 March 2021 should be dismissed at this threshold stage.[5]
[5] Following reasoning of the Courts in Defrey & Radnor [2021] FMCACF 67 at [16] to [22]; and Bendon & Bendon [2021] FAMCA 396 at [18] to [23].
It follows from [37] and [38] of these reasons, that I am satisfied that the mother’s application for final orders has no reasonable prospect of success and so is dismissed.
I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Taglieri. Associate:
Dated: 23 July 2021
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