Reiby and Meadowbank and Anor (No.2)

[2018] FCCA 454

FEDERAL CIRCUIT COURT OF AUSTRALIA

REIBY & MEADOWBANK & ANOR (No.2) [2018] FCCA 454

Catchwords:
FAMILY LAW – Application to discharge parenting orders made in 2013 – child aged 2 when orders made – now aged 7 – orders made providing for time spent with father when child commences school – no sufficient change in circumstances to warrant reopening proceedings – application dismissed.

Legislation:

Family Law Act 1975, s.60H

Cases cited:
Lancet v Deaves [2012] FamCAFC 36
Marsden v Winch (2013) 50 Fam LR 409
Rice & Asplund [1978] FamCA 84

Applicant: MR REIBY

First Respondent: MS T MEADOWBANK

Second Respondent: MS S MEADOWBANK

File Number: MLC 7054 of 2012

Judgment of: Judge McNab

Hearing date: 9 February 2018

Date of Last Submission: 9 February 2018

Delivered at: Melbourne

Delivered on: 9 February 2018

REPRESENTATION

Counsel for the Applicant: Mr T. Puckey

Solicitors for the Applicant: Slater and Gordon Lawyers

The Respondents in person

ORDERS

1. The application filed 5 December 2017 be dismissed.

AND THE COURT NOTES THAT:

A.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

IT IS NOTED that publication of this judgment under the pseudonym Reiby & Meadowbank & Anor (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 7054 of 2012

MR REIBY

Applicant

And

MS T MEADOWBANK

First Respondent

MS S MEADOWBANK
Second Respondent

REASONS FOR JUDGMENT

1. By an initiating application filed 5 December 2017, the applicant seeks interim orders as follows:

   1. That all time be abridged to enable this matter to be heard urgently.

   2. That paragraphs 4 and 5 of the Orders made on 11 December 2013 be discharged.

   3. That the child X born (omitted) 2011 (“X”) spend time and communicate with the father as follows:

   a) During the 2018 long summer holiday period as follows:

   i. From 10:00am until 7:00pm on Christmas Eve;

   ii. From 10:00am on 27 December until 5:00pm on 30 December 2017;

   iii. From 10:00am on 11 January 2018 until 5:00pm on 14 January 2018; and

   iv. From 10:00am on 19 January 2018 until 5:00pm on 22 January 2018.

   b) Thereafter as follows:

   i. Each alternate weekend from the conclusion of school on Friday until the commencement of school on Monday;

   ii. For one half of all school terms holidays failing agreement the first half in even numbered years and the second half in odd numbered years;

   iii. For two weeks during the long summer holidays failing agreement the last two weeks;

   iv. From 10:00am until 7:00pm on Christmas Eve each year;

   v. From 10:00am to 5:00pm on Father’s Day each year should it fall on a day X is not usually spending time with the Father;

   vi. At such other time as may be agreed;

   c) By telephone/facetime/skype as follows:

   i. On the Sunday that X does not spend time with her father between the hours of 5:30pm and 6:00pm;

   ii. On X’s birthday between the hours of 5:30pm and 6:00pm; and

   iii. On the Fathers’ birthday between the hours of 5:30pm and 6:00pm.

   Changeover

   4. For all changeovers that do not take place at X’s school, changeover shall take place at a venue agreed by the parties from time to time and failing agreement the Applicant and/or his agent shall collect X from the Respondent’s home and the Respondent’s or either of them or their agents shall collect X from the Applicant’s home.

2. The applicant relies on an affidavit sworn 4 December 2017. The applicant was represented by counsel, Mr Puckey at the hearing of the matter.  The respondents appeared in person on their behalf and relied on an affidavit sworn 16 January 2018. They oppose the application and rely on the principles of Rice & Asplund [1978] FamCA 84 to found a submission that the applicant has not established a sufficient change of circumstances to warrant the re-opening of this matter.

3. As is apparent from the terms of the application, this matter was the subject of a fully contested two-day hearing conducted before Judge Small on 26 and 27 September 2013, at which time X was two years old.  She was the subject of two family reports prepared by Dr J.

4. The decision of Judge Small carefully and comprehensively considered the background of the matter at paragraphs [1] – [5]:

   1. This is an application for parenting orders in relation to a two year old child, X born (omitted) 2011 (“X”), who was conceived by artificial insemination.

   2. The Respondents, Ms T Meadowbank (“the first-named respondent”) and Ms S Meadowbank (“the second-named respondent”) are in a de facto relationship, and having been committed to one another for several years, were considering having a child.

   3. The Applicant, Mr Reiby (“the Applicant”), approached the first-named Respondent, who was a friend of his, and assisted the Respondents to achieve that aim by donating his genetic material so that first-named Respondent could conceive.  

   4. The Applicant seeks orders for equal shared parental responsibility in relation to X, and for orders that X spend time with him in a graduated pattern which would ultimately see her living with him and the Respondents on a 5/9 nights per fortnight regime. 

   5. The parties are in dispute about what the Applicant’s role in X’s life should be in terms of the amount of time she spends with him and in relation to his wish to have equal shared parental responsibility for her.

5. In the course of the judgment, her Honour made reference to s.60H of the Family Law Act1975 (‘the Act’) and noted at paragraph [137] of her reasons:

   I have already stated that the first-named Respondent and the second-named Respondent are X’s parents pursuant to S60H of the Act, and that the Applicant is not. However, as X’s biological father, the Applicant is clearly a person concerned with the care, welfare and development of the child, and is therefore at liberty to seek parenting orders in relation to her.

6. Judge Small made an order amongst others that the respondents have sole parental responsibility for X. Counsel for the applicant in this application was at pains to make reference to paragraph [220] of the judgment of her Honour which provides:

   The orders I propose to make will take the parties and X into her initial primary school years and I have crafted them in the hope that they will give the parties and X some certainty.  It may be that X’s circumstances will change once she goes to school and it can only be hoped that if there are disputes between the parties at that time in relation to her care, that they will be able to resolve them through mediation or some non-litigious process.

7. I note that her Honour also made reference to the following matters at paragraph [232]:

   While babies and very young children need to spend frequent and regular time with an adult in order to establish a sound and secure relationship with that adult, as the child grows older and the relationship has been established, it may not be necessary to maintain the same regime or to increase time in order for the relationship to be and remain significant and close.

8. Judge Small made orders in relation to the time that X would spend with the applicant, and in particular, I refer to subparagraphs (e) and (f) of order 4 of the orders of 11 December 2013.  Order 4(f) provided:

   (f) Thereafter, once the child begins school:

   (i) On one weekend per month during school term times by agreement, and failing agreement the first weekend of each month, from 10:00 am Saturday to 5:00 pm Sunday;

   (ii) Each Wednesday from after school until 7:00 pm with the Applicant to provide the evening meal for the child before returning her to the Respondents’ home; 

   (iii) By telephone on each of the Saturdays when the child is not spending time with the Applicant between the hours of 5:30 pm and 6:00 pm, with the Applicant to make the call to a telephone number provided by the Respondents and the Respondents to ensure that the child is available to take the call;

   (iv) For no more than two weeks per year in any school holiday period by agreement between the parties and failing agreement, for one week after school on the last day of second term, and for one week ending at 6:00 pm on the Friday prior to the beginning of the school year.

9. Arrangements were also made for periods of time on birthdays and Christmas to be spent with the applicant. 

10. At paragraph [29] of his affidavit, the applicant gave evidence of the correspondence between himself and the respondents in relation to the orders on 4 April 2016.  The terms of that evidence and the correspondence are noteworthy:

    In April 2016, conscious that the Orders provided for a dramatic reduction in X’s time with me when she started school the following year I made contact with Ms T Meadowbank and Ms S Meadowbank with a view to establishing whether we could agree on an alternate arrangement.  On 4 April 2016 I sent the following email to Ms T Meadowbank and Ms S Meadowbank: 

    “Hi Ms T Meadowbank and Ms S Meadowbank,

    As you may be aware the Court orders are due to change early 2017. It has been weighing on my mind as I think X is happy and thriving in the current arrangement. I think she has obviously benefited from the strong relationship she has built.  This includes with the two of you, our extended families and myself. 

    I appreciate how we have worked together amicably for the benefit of X and have all contributed to the enriching experiences she has had.  I would like to see X’s and my relationship continue to grow in 2017 however I do not believe the Orders provide for this. Through mediation, I would like to achieve an arrangement that supports X to continue to grow into a well-rounded loving girl.  Therefore, from the period when she commences school I would like to continue our arrangement of second weekend sleepovers, seeing X on a Wednesday (week 1 for dinner and I will drop her home) and half of the school holidays….”

11. The letter continues to propose arrangements for Christmas and birthdays. Notwithstanding that X on his own account is happy and thriving, the father is seeking an increase in the time from that set out in the orders of Judge Small. The parties attended a mediation but no change to the orders was agreed.

12. The evidence of the applicant is that on his observation:

    a)X is doing well at school and is happy;[1]

    b)X is happy during the time that she spends with the applicant and has the opportunity to experience a wider circle of the applicant’s family, including grandparents;[2] and

    c)He is concerned that X may not be spending enough time with him and that the “prolonged absences” are not in her best interests.

    [1] Affidavit of Mr Reiby sworn 4 December 2017 [35].

    [2] Ibid [37] – [40].

13. I do not consider that the periods between X seeing the applicant on the regime fixed by Judge Small constitute prolonged absences.  On his evidence, he is seeing X every fortnight. The applicant comments that the respondents have told him that they do not feel that X will cope with any increase in time.[3]

    [3] Ibid [51].

14. The respondents depose that:

    a)X is in good health, save that she has been diagnosed with mild sensory processing differences from her peers and is exhibiting features of anxiety;

    b)She is doing well at school;

    c)Both parents look after X and their younger children – two sons aged two and two months respectively; and

    d)X has a good relationship with the extended family of the respondents.

15. The respondents do not agree that the orders of Judge Small represented a dramatic reduction in the time that X spends with the applicant. The respondents gave evidence of instances in April, May, June and July 2015 that indicated that X was not keen on spending overnight time with the applicant or that she reacted badly after speaking to him on the telephone. Evidence was given of similar instances in 2017 where she expressed unhappiness about spending overnight time with the applicant.

16. The respondents obtained a referral from their GP to a psychologist to assist with what they say is X’s anxiety about spending overnight time with the applicant.[4] Notwithstanding the evidence of the alleged problems that X is experiencing with the current arrangements, the respondents do not seek to change the orders made or to change the arrangements that have been agreed subsequently to the making of the orders. 

    [4] Affidavit of Ms T Meadowbank and Ms S Meadowbank affirmed 16 January 2018, exhibit C.

17. It was noted earlier that this application requires consideration of the rule in Rice & Asplund [1978] FamCA 84. At page 572 of that judgment the Court provided that:

    The Court should not lightly entertain an application to reverse an earlier custody order.  To do so would invite endless litigation for change is an ever-present factor in human affairs.

18. I refer to the decision of the Full Court of the Family Court in Marsden v Winch (2013) 50 Fam LR 409 which summarises the matters that I must have regard to in considering the application:

    a)the past circumstances including the reasons for the decision and the evidence upon which it was based;

    b)whether there is a likelihood of orders being varied in a significant way as a result of a new hearing;  and

    c)the nature of the likely changes must be weighed against the potential detriment to the child or the children caused by the litigation itself. Small changes may not have sufficient benefit to compensate for the disruption caused by significant re-litigation. In that regard I refer to Marsden v Winch (2013) 50 Fam LR 409 and Lancet v Deaves [2012] FamCAFC 36.

19. The father at paragraph [25] of his affidavit states:

    However, Her Honour made some unusual Orders about what was to happen once school started which none of us sought at the time and which we have since departed from.

20. Whilst the orders may have been unusual for one or both of the parties,[5] and there has been a change in relation to time spent midweek on the off week and other slight changes which have been agreed between the parties, I do not regard the orders as unusual or such that by reasons of the orders themselves it is necessary to reopen the litigation. The evidence of the father is that X is happy and healthy under the current arrangements but that he believes she would benefit from greater time with him. The mother stated that the daughter is anxious about the current overnight time but is otherwise happy and healthy.

    [5] On the Court’s reading of the orders, there is nothing unusual about the order made by Judge Small and the reasons for judgment support the orders made.

21. In my view, Judge Small did all that was required of her to recount and assess the evidence before her, and made orders that have worked and continue to work for the benefit of X. She has a strong attachment to her father whilst being primarily brought up in the household of her parents. Those were the circumstances that Judge Small faced in dealing with a young child at the time when the orders were made. Her Honour recognised that all the parties wish the father to have a relationship with X and for her to form an attachment to him.

22. I am particularly mindful of the stress and anxiety associated with litigation, and particularly of this kind. The parents have given evidence of the financial stress which they remain under as a result of the litigation that culminated in the judgment in 2013.  I am concerned that any further financial stress in this family will impact on the interests of the mothers, and accordingly the interests of X and her siblings. Further, the mothers have referred to the stress associated with dealing with this application and the earlier application.

23. The family consultant commented on the apparent effects of the stress that the litigation had on the health of the first named respondent.  She has deposed to having panic attacks and taking anti-depressants as a result of these proceedings. 

24. There have been changes in circumstances – for instance, X is now at school – although that was contemplated by the earlier orders. X is also experiencing some anxiety in relation to overnight time and she has siblings.

25. Those matters of themselves do not warrant reopening proceedings.  Indeed, the fact that she has siblings means that it is now important that she spends time with them and her parents as a family. The notion of spending reasonably lengthy periods of time during school holidays away from her parents and siblings may not be in her best interests, particularly as the siblings are young and she is forming a relationship with them. In my view, nothing has been put before the Court which would persuade me that there is a likelihood that the orders that have been made, and the subsequent arrangements that have been agreed between the parties, are likely to be substantially departed from. 

26. In those circumstances, I am not persuaded by the applicant that there is any change in circumstances that would warrant reopening this proceeding, and accordingly, I dismiss the application. 

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge McNab

Date:  27 February 2018