Raleigh and Raleigh

[2013] FamCA 1044

FAMILY COURT OF AUSTRALIA

RALEIGH & RALEIGH [2013] FamCA 1044

FAMILY LAW – Variation of Consent Orders

APPLICANT: Ms Raleigh

RESPONDENT: Mr Raleigh

FILE NUMBER: SYC 2533 of 2013

DATE DELIVERED: 6 December 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 6 December 2013

REPRESENTATION

SOLICITOR FOR THE APPLICANT: WMD Law

SOLICITOR FOR THE RESPONDENT: Haydon Fowler Corbett Jessop

Orders

MINUTE OF CONSENT ORDERS

1. That Order 1 of the Minute of Consent Orders made by this Court on 24 June, 2013, being:

   That the Respondent be restrained from selling, mortgaging, encumbering or in any other way dealing with his interest in the property situate at and known as 11 Rostrevor Street, Cronulla, other than to draw against the Bank of Queensland line of credit secured by mortgage over that property to an amount of not more than seven hundred thousand dollars ($700,000.00), without giving twenty eight (28) days prior notice in writing to the wife;

   be varied by increasing the amount of seven hundred thousand dollars ($700,000.00) to eight hundred thousand dollars ($800,000.00).

IT IS NOTED that publication of this judgment by this Court under the pseudonym  Raleigh & Raleigh has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 2533 of 2013

Ms Raleigh

Applicant

And

Mr Raleigh

Respondent

REASONS FOR JUDGMENT

1. Before the Court is an application in relation to two children, B Raleigh (“B”), born in 2003 and C Raleigh (“C”), born in 2005. The parents are the applicant mother, Ms Raleigh (“the mother”), and the respondent father, Mr Raleigh (“the father”). 

2. The parties and the children lived together until the parents separated in 2009. After that period, they continued to live together under the same roof, although the parents were separated, until December 2011. During that time, both of the parents worked outside the home, and the children lived in the care of each of their parents. The parties physically separated when the mother left the home in January 2013.

3. In December 2011, the father stopped working as an employee and took up employment as a consultant. Since that time, according to the evidence, he has worked from home, and his time is flexible. 

4. The mother has continued to work, and at the time when the parties physically separated in January 2013, the mother was working six days a week. 

5. The father asserts that since December 2011 he has been the primary carer of the children. The mother refutes that assertion. On the basis of the evidence before me, which is untested, that is not an issue which I can determine. However, it is conceded by the mother, that since January 2013, the father has been the primary carer of the children. 

6. On 24 June 2013, the parties entered into interim consent orders, providing for the parenting of the children. The parents agreed that they should have equal shared responsibility for the children and that the children should live with their mother during school terms, each alternate weekend from the conclusion at school on Thursday until the commencement of school the following Monday, and for half of all school holiday periods. At all other times the parties agreed that the children would live with the father. 

7. On 3 July 2013, only a matter of approximately two weeks after the consent orders were made, the mother stopped working. On 2 September 2013, the mother filed an application in this Court seeking interim orders that would provide for the children to live on a week-about basis with each of their parents with changeover occurring after school on Monday. That application came before Senior Registrar Campbell on 30 October 2013. The Senior Registrar dismissed the mother’s application, but made a number of procedural orders which gave the matter priority in listing.

8. The matter now comes before me as a result of the mother’s application in a case filed on 6 August 2013, seeking that the orders made by Senior Registrar Campbell be reviewed. 

9. The mother relies upon a change in her circumstances. She does not assert that there has been any change in the children’s circumstances. 

10. The Court should not lightly entertain an application to change an earlier order, whether a consent order, an interim order or a final order. Change is an ever-present factor in children’s lives and to entertain a fresh application whenever there is a change in the circumstances of a parent is to invite endless litigation. In this matter, I note that the application of the mother is filed some 10 weeks after the consent orders were made. 

11. However, in order to consider what orders would be in the best interests of these children, it is necessary to look to the factors which are set out at section 60CC of the Family Law Act.

12. The Court now has the advantage, which was not available to the Senior Registrar, of a memorandum prepared by the Family Consultant, Ms D, under the Child Responsive Program. In the memorandum, Ms D reports that C said that the arrangements for the children’s care should remain as they currently are. It may be said that C’ reasons for expressing that view appear to be inconsequential, but nevertheless, that is the view she expressed. 

13. C further said that she would be happy if the children were to have an extra night with their mother as she is aware that her mother wants equal time. Ms D reports that C said that she loves both of her parents and knows that they both love her. She said that she can speak with each of her parents about any worries she may have and that both parents tell her things about the other parent. C said that both her mother and father argue a lot, even though her father does not really shout like her mother. C expressed the view to Ms D that she wished her mother would be nicer to her father when they see one another and that her mother would be calmer when they do not obey her. 

14. B told Ms D that he would like the arrangement to stay the same and that he likes living with his father. B said that his father helps him and C complete their homework so that they can just play when they are with their mother. He said that his mother could probably help him with spelling and his times table, but he did not think that she could do most of the work because the answers are very hard, and she may not know them. B said that his mother used to shout at him and C, and he believes that she would probably begin shouting at them again after Court is finalised. He said he does not think that his mother has shouted at them since Christmas 2012, and his mother is nicer to them now. 

15. Significantly, in her report Ms D made no recommendation that there be any change in the current arrangements for the children. 

16. It is not disputed that these children’s interests are best served by having a meaningful relationship with both of their parents. However, it is also not suggested that the current arrangements do not facilitate the children’s having a meaningful relationship with both of their parents. 

17. In relation to the wishes which have been expressed by the children, Ms D reports both children as wishing to see the current arrangements remain, albeit that C contemplates the possibility of one extra night with her mother. 

18. The children appear to have a good relationship with each of their parents, subject to the caveats raised by the children in their statements to Ms D, specifically about their mother’s behaviour. 

19. There is no present evidence that any change in the children’s arrangements as proposed by the mother would be more beneficial to them than a continuation of the current arrangements. The orders which were made in June of 2013 were made by consent, and both parents believed that those orders were in the best interests of the children. 

20. The matters raised by the mother will no doubt have great relevance in a final hearing, but they are insufficient to persuade me to alter the arrangements which have been agreed to for these children on an interim basis. 

21. Accordingly, the mother’s application will be dismissed.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 6 December 2013.

Associate:

Date:  6 December 2013