Perowe & Eddelson

Case [2021] FCCA 1683

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

  1. 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.

  2. 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.

  3. 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…

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AGLC
Perowe & Eddelson [2021] FCCA 1683
Case
[2021] FCCA 1683
Decision Date

CaseChat Overview and Summary

In the matter of *Perowe & Eddelson*, Ms Perowe (the applicant mother) sought final orders to vary existing parenting orders concerning the parties' child. Mr Eddelson (the respondent father) opposed the application. The proceedings were heard by Taglieri J in the Federal Circuit and Family Court of Australia.

The court was required to determine whether the circumstances had materially changed since the making of the final parenting orders in 2019, such that a variation of those orders was warranted. Specifically, the mother sought variations relating to the protection of her at handover, and to enable discussions about an alternate school for the child due to dissatisfaction with the current high school. The mother also sought to amend the changeover location for the child.

Taglieri J dismissed the mother's application for final orders pursuant to s 45A(2) of the *Family Law Act 1975*. The court found that the existing orders, made by consent and with legal representation for both parties, already contained provisions for protection at handover and a process for addressing changes to the child's education. The court noted that the mother's application for variation of the changeover location appeared to be a response to the father's contravention proceedings, rather than being driven by the child's welfare. The court also observed that the mother's evidence regarding changed circumstances, particularly concerning the child's schooling, lacked sufficient detail. The court concluded that the grounds for variation were not made out, and that the appropriate avenue for addressing any contraventions of existing orders was through a contravention application.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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 7CONCLUSION 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.

Ratio Decidendi

Legal Principle Established

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