R & BH
[2006] FamCA 919
•21 September 2006
[2006] FamCA 919
FAMILY LAW ACT 1975
IN THE FULL COURT
OF THE FAMILY COURT OF AUSTRALIA Appeal No EA3 of 2006
AT SYDNEY File No SYF4121 of 2002
BETWEEN:
R
Appellant Husband
- and -
BH
Respondent Wife
REASONS FOR JUDGMENT
CORAM: KAY, WARNICK & MAY JJ
DATE OF HEARING: 13 September 2006
DATE OF JUDGMENT: 21 September 2006
APPEARANCES: Mr Broun, one of Her Majesty’s Counsel, instructed by Warwick R Ward, 22A Pellisier Road, Putney NSW 2112, appeared on behalf of the Appellant Husband.
Mr Bartfeld, one of Her Majesty’s Counsel, instructed by Dimock Family Lawyers, Level 1, 17 Castlereagh Street, Sydney NSW 2000, appeared on behalf of the Respondent Wife.
R & BH
EA3 of 2006
CORAM: Kay, Warnick & May JJ
DATE OF HEARING: 13 September 2006
DATE OF JUDGMENT: 21 September 2006
Catchwords: CHILDREN – CONTACT - VARIATION – Father sought minor changes to contact arrangements nine months after orders made by consent – Application summarily dismissed on the basis of Rice v Asplund principles, there having been no substantial change in circumstances since the previous orders were made – The trial Judge noted the ‘unrelenting nature’ of the litigation between the parties and that the husband sought only ‘marginally incremental’ changes to the contact regime – It was open to the trial Judge to arrive at the conclusion that there was no material change in circumstances demonstrated by the husband’s evidence to merit a further trial.
This is the husband’s appeal against orders made by Steele J on 9 December 2005 dismissing an application filed by the husband in March 2005 that sought to vary contact orders that had been made in June 2004. The husband seeks an order that his application for variation of contact be remitted to a single judge for hearing.
Background
It is convenient to refer to the parties as husband and wife, although they separated in December 2000 and their marriage was dissolved in 2003. They are the parents of two children, A born November 1995 and L born in April 2000.
Consent orders regarding residence and contact were made in April 2001. The husband filed applications seeking a variation of the contact orders in October 2002 and in July 2003. On 29 June 2004 property and parenting matters were the subject of consent orders. The contact orders provided in essence for the children to be with their father:
(a) each week from 5.00pm on Wednesday until 7.45am on Thursday during school term;
(b) each alternate weekend from 5.00pm on Friday until 5.00pm on Sunday (but 6.00pm on Sunday when daylight saving is in place) during school term;
(c) on one weekend during each school term (to be such weekend as may be agreed in writing between the parties and in the absence of agreement, the third weekend in the school term) from 5.00pm on Friday until 7.45am on the following Monday.
In an application filed in March 2005 the husband sought to vary the orders made in June 2004 so that contact on each alternate weekend would conclude by him returning the children to school on Monday morning. He sought also that at the commencement of the contact periods he collect the children from school rather than from the mother’s home at 5.00pm.
The trial judge acceded to the mother’s submission that the husband’s application should be summarily dismissed in accordance with principles espoused in Rice v Asplund (1999) FLC 90-725, namely that the husband’s material did not disclose any change in circumstance that justified the Court’s reconsideration of the matter.
The judgment
After setting out the background to the matter the trial judge incorporated into his reasons for judgment a chronology provided by the wife, about which his Honour said:
15.There may be many facts in the Case Outline which are the subject of dispute but the actual history of the litigation is, as I understand it, accurate and demonstrates the unrelenting nature of the litigation to date.
His Honour then sought to identify the matters that the husband was relying upon as demonstrating a change which would justify the bringing of the application some nine months after the orders were last made. His Honour identified those matters as follows:
·The Husband, … now works from home so that he is available more.
·The Wife’s relationship with Mr G has ended.
·L has started school.
·The Husband returns the Children to school rather than to the Wife’s home at 7.45am on Thursdays and has been doing so since February 2005. This the Husband says is the subject of an agreement between them and the Wife in her Affidavit at paragraph 62(d) confirms that this is so.
·Because the Children are both at school and the Husband is not working in the city it is convenient for him to pick the Children up after school on Wednesdays and Fridays.
·The relationship between the Husband and Wife has deteriorated since 29 June 2004.
After noting the mother’s opposition to the changes his Honour said:
21.The changes sought by the Husband are marginally incremental at best. It seems to me that the Court should be less inclined to entertain a full hearing precipitated by less significant changes when the changes in Orders sought are themselves of only minor potential effect. The stress and expense occasioned to the Wife by having to meet claims of that effect can ultimately rebound upon the Children.
…
23.It is my view that the matters spelt out by the Husband in his Affidavit are relatively minor indeed and are not evidence of substantial changes such as to justify the bringing of this separate Application with all the attendant difficulties and expense. It is in the Children’s best interests that the litigation be brought to an end. Accordingly I propose in accordance with the principle established in Rice v Asplund to dismiss the Husband’s Application.
The appeal
Four grounds of appeal were relied upon by Mr Broun QC appearing on behalf of the husband. They were:
1.The trial judge erred in the interpretation and application of the supposed rule in Rice v Asplund.
2.The trial judge erred in reaching conclusions of fact against the husband without hearing oral evidence and cross-examination of the parties.
3.His Honour reached an unfair conclusion against the husband as to the frequency and number of applications without any examination of what the applications were about, the merits of them, and whether or not the husband [had] either justification, or even necessity, to bring the applications.
4.The trial judge erred in holding that there had not been a sufficient change in circumstances or development of the circumstances as to justify a re-examination of the contact orders.
In his written submissions Mr Broun sought to argue Grounds 1 and 4 together.
The principle in Rice v Asplund was described by Kay J in F v B (2003) FamCA 596 as providing that one:
…cannot relitigate issues that have already been litigated in child welfare matters unless the circumstances are so changed as to make it appropriate for the matters to be relitigated.
Mr Broun accepted that an appropriate test of the exercise of the power to determine whether or not there ought be another hearing was that set out by Marshall SJ in Houston v Sedorkin (1979) FLC 90-699 at 78,728 where his Honour said:
The inquiry before me is a positive one directed to the best interests of the children, and the parties seeking the discharge of a current order for custody should place before the Court evidence which demonstrates a material change in circumstances such as to warrant the discharge or variation of the current order. This is of particular relevance in a case where a relatively short period of time has elapsed since the date of the making of the current order.
Mr Broun suggested more than once a similarity between some of the facts in the case on appeal with the facts in other cases such as Houston v Sedorkin (1979) FLC 90-699 at 78,727 and F v N (1987) 91-813 at 76,136. He pointed out that in each of those cases full hearings had been granted and prior orders altered.
We see no point in the comparison. While there were facts in each of the cases referred to similar to facts in the instant case, there were also important differences in circumstance. Moreover, as Mr Broun agreed, whether a particular change of circumstance is material or not depends not just on the change of fact, but the degree of connection between it and the variation sought.
Mr Broun urged upon us that the husband’s affidavit had clearly met the requirement in that it had disclosed that by reason of the change in his professional life the husband was now far more available to care for the children and that by reason of the ongoing conflict between the parents it would be more advantageous to the children to avoid the parents having to be involved with each other at the commencement and conclusion of contact periods.
He also sought to urge upon us that somehow the June 2004 orders had been tainted by non-disclosure on behalf of the wife and therefore, because of that circumstance alone, the orders might be more readily changed. It was submitted that the evidence disclosed that shortly after the June 2004 orders the wife commenced to cohabit with one Mr G and his 14 year old daughter, such cohabitation continuing for several months. It was, however, common ground that by the time the matter was before Steele J the cohabitation had ceased. While non-disclosure by the wife at the time that the June 2004 orders were made may well have made or make a difference to a court's readiness to change such particulars in those orders to which the non-disclosure relates, we find it difficult to understand how it could now be said that the unexpected presence and subsequent absence of Mr G was a change in circumstance that justified the increase in contact sought by the husband.
In the application that was before the Court when the matter was compromised in June 2004, the husband sought contact each second week from afternoon on Wednesday until the commencement of school or pre-school on the following Monday and in every other week from after school or pre-school on Wednesday until the commencement of school or pre-school the following morning. The orders sought by the husband envisaged that he would collect A from school and then L from the wife’s home.
In his affidavit in support for the application to further vary the orders the husband said that about a week before the orders were made on 29 June 2004 he had a conversation with the wife in which she rejected his overtures for increased contact.
The orders that were made in June 2004 were made after negotiations were conducted between counsel on behalf of the parties.
Whilst it might be that there was a degree of commonsense in the orders that were being sought by the husband in his March 2005 application, the parties had reached a compromise about their respective claims in June 2004. Given that the proposed changes could be seen to be at best incremental, it appears to us that it was open to the trial judge to arrive at the conclusion that there was no material change in circumstance demonstrated by the husband’s evidence that would require Steele J to permit the relitigation of an issue that had been settled by a compromise that had been reached only several months prior to the variation application being filed. We perceive that the path chosen by the trial judge was an exercise of discretion that was open to him on the material presented to him.
Ground 2 asserts that the trial judge reached conclusions of fact against the husband without hearing oral evidence and cross-examination of the parties. In particular, in his written submissions our attention is drawn to his Honour’s statement in his reasons for judgment that:
The Wife contends that the deterioration in the relationship since the June 2004 Orders is a consequence of the Husband’s own conduct. Whilst I cannot determine that issue without the benefit of the matter being fully ventilated it does seem from the chronology of events to be the likely course which has occurred.
It is not entirely clear as to what the “the chronology of events” refers to. It might be a reference to the chronology set out in the judgment that comes from the wife’s Case Summary Document although it might be a reference to the sequence of events as described by the parties in their affidavits.
The chronology contained in the judgment insofar as it relates to who might be responsible for any deterioration the parties’ relationship since June 2004 is as follows:
5 December 2004 The Husband refused to return the Children to the Wife at the conclusion of contact on a Sunday evening. The Police were called. Eventually the Husband agreed to allow the Children to go back to the Wife.
When the Wife called to collect the Children on Sunday evening the Husband pulled [L] from the Wife’s arms and chased her to the corner of the patio and pushed into her with his chest alternatively with his left and right side. The Husband also pulled the Wife by the hair.
16 February 2005 The Husband turned up at the [P] Primary School to collect the Children after school after consulting the Wife and notwithstanding that the Orders provide that contact is to commence at 5 pm from the Wife’s residence.
2 March 2005 The Husband rang the Wife and told her he was collecting the Children from school. He said to the Wife “…there’s nothing you can do about it”.
At 4 pm the Wife was advised that the Children had not been collected.
At 4.30 pm the Husband telephoned the Wife and advised “I got held up in the city”.
…
30 March 2005 The Husband turned up, unannounced, at the Wife’s home at 3.30 pm to try and collect the Children notwithstanding that the Orders of 29 June 2004 specify that contact is to commence at 5 pm.
In his affidavit the husband accepts that his overholding of the children on 5 December 2004 might have occurred as a result of misunderstanding that was his mistake. He denies, however, that he assaulted the wife during the course of the events that day.
He admits in his affidavit that in February 2005 he attended at the school outside of contact hours “in the hope of being able to collect the children directly from school”. He said that he met the wife’s mother at the school and she told him that the wife did not want him to see the children outside of the agreed contact hours. That passage is perhaps inconsistent with a passage later in the same affidavit where he said that his attendance at the school as far as he was aware “presented no problem to the children or to [B]”.
His version of the events of 2 March 2005 was that he was told very early that morning not to go to the school to collect the children so he did not.
Whether in light of the conflict of evidence it was appropriate for the trial judge to make any observation as to whether the deterioration in the relationship between the parties was a consequence of the husband’s own conduct or otherwise, what was significant for the purposes of determining whether or not the contact matters should be reopened was whether any such deterioration was a material change that made it appropriate that the matters be relitigated.
We agree with Mr Broun’s submission that the relevance of the described incidents is not whether blame should be attached to either party but rather the fact that the parties were in a bad relationship from whatever cause. However, the incidents need to be viewed in context to determine whether or not it was appropriate to allow the litigation to proceed.
In effect there were two incidents relied upon in a period of nine months neither of which demonstrated that the change in the existing arrangements was appropriate. Both the December and March incidents appear to have arisen out of a misunderstanding of matters either communicated or a failure of communication. Otherwise it appeared that the existing contact arrangements were operating satisfactorily so far as changeovers were concerned.
The final ground sought to be argued was that the trial judge had reached an unfair conclusion against the husband as to the frequency and number of applications without an examination of what the applications were about, the merits of them and whether or not the husband had either justification or even necessity to bring the application.
We think in fairness to the trial judge that no such conclusion was reached. All that the trial judge concluded was that the case outline demonstrated “the unrelenting nature of the litigation to date”. Essentially, in the four years since the parties had separated there had been
consent orders for residence and contact in 2001,
an application seeking variation of the contact orders in October 2002,
a further application for variation of contact orders in July 2003,
final orders being made in June 2004,
a further variation application filed in March 2005, including an application that sought an appointment of a court expert and a further family report.
The observation by the trial judge that the litigation had been “unrelenting” was reasonably open to him.
Conclusion
We accept as an appropriate exposition of the law the observations of the Full Court in Bolitho v Cohen (2005) FLC 93-224. When discussing the application of the principles in Rice v Asplund the Court said:
44.In King v Finneran, a case decided after the Family Law Reform Act 1995 (Cth), Collier J, when discussing the nature of the change required to warrant further consideration of a fresh application at 88,368, said:
“The words in any event are not words of necessarily strict dictionary definition. In D and Y (1995) FLC ¶92-581 their Honours of the Full Court made a finding that a trial judge has a discretion whether to deal with a change of circumstances as a preliminary issue or to proceed to a full hearing. Their Honours indicated that in the circumstances that prevailed in that case, that is, a nine day hearing a little more than two years previously, that a judge would be extremely loath to reopen the issue of custody, except on strong grounds. The word strong (sic) in that case is a departure from substantial or significant as used in earlier cases. It indicates clearly what is required. The change or fresh circumstance must be such that upon becoming advised of it and being satisfied of its existence, a court would be left in no doubt that it was necessary to relitigate the parenting issue in dispute between the parties. That is not to say that a court must be satisfied that the fresh or changed circumstance would result in a change to the orders. It merely indicates that the change or fresh circumstance must be such that if taken into account there is a real likelihood that a change may follow.”
45.We agree with and adopt the principles espoused by Collier J in King v Finneran set out above.
As we have already indicated in this case, the trial judge was of the view that the circumstances disclosed in the husband’s material did not merit the matter proceeding to a full hearing. We see no appealable error in the approach by the trial judge and accordingly the appeal will be dismissed.
Costs
Counsel for the appellant conceded that in the event that the appeal was dismissed it would be appropriate that there be a costs order made in favour of the respondent.
Orders
The orders of the Court will be:
1. That the appeal be dismissed.
2. That the appellant pay the costs of the respondent as agreed and in default of agreement as assessed.
I certify that the 35 preceding
paragraphs
are a true copy of the reasons
for judgment delivered by this
Honourable Full Court.
Associate
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