RF and RNC
[2004] FMCAfam 124
•11 March 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| RF & RNC | [2004] FMCAfam 124 |
| FAMILY LAW – Children – applicant seeking to discharge residence orders entered into by consent less than a year ago – change in circumstances – whether test in Rice v Asplund has been met. COSTS – Respondent seeks costs – indemnity costs – application for costs made in favour of respondent. Family Law Act 1975 (Cth), ss.65E, 117 Rice v Asplund (1978) 6 Fam LR 570; FLC 90-725 |
| Applicant: | F R |
| Respondent: | N C R |
| File No: | PAM 3414 of 2002 |
| Delivered on: | 11 March 2004 |
| Delivered at: | Parramatta |
| Hearing date: | 11 March 2004 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Hammond |
| Solicitors for the Applicant: | Advance Lawyers |
| Solicitor for the Respondent: | Mr Russell |
| Solicitors for the Respondent: | R J Russell |
ORDER
The Application is dismissed.
The Applicant is to pay the Respondent’s costs of this Application in the sum of $3230.00.
The Applicant is given three (3) months in which to comply with the costs order.
The Application is removed from the Pending Cases List.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAM 3414 of 2002
| F R |
Applicant
And
| N C R |
Respondent
REASONS FOR JUDGMENT
Application
The primary application before the Court is an application by the father of two little girls named G and K to vary orders which were made by consent in the Family Court of Australia at Parramatta on the 27th March last year.
K is the elder of the two children; she was born on the 23rd January 1997. She is now seven years of age. G is younger, she was born on the 6th February 1998 and she is now six years of age.
The orders that were made in the Family Court by consent on the 27th March last year were that the children of the marriage should reside with the wife and that the husband should have contact as specified in some detail in the orders. The father now seeks to vary those orders. What he seeks to do is discharge all of the orders that were made and have fresh orders made which would provide that the children should reside in a shared care arrangement. He proposes that this shared care arrangement would be on a week about basis.
The mother opposes these orders and her solicitor, Mr Russell has made an application to the Court as a threshold issue that the application should be dismissed in that what is known as the test in Rice v Asplund (1978) 6 Fam LR 570; FLC 90-725 has not been met.
I will discuss the application of those principles to this case shortly.
The father 's application is supported by his affidavit which was sworn on the 16th January 2004. In that affidavit he refers to the dates of marriage and separation of the parties, he refers to the names and ages of the children, he refers to the fact that the children have resided with the mother since separation on the 9th July 2002 and that he has exercised contact at least since the 27th March last year in accordance with those orders. He recites that the children have strong relationships with both parents and that he is seeking these orders to provide stable circumstances for the children. He quotes in paragraph 8 his capacity to provide for the children's needs. He negatives any suggestion that the children would be subjected or exposed to abuse or threats and violence or anything else which may cause them physical or psychological harm. He asserts that he has demonstrated an appropriate attitude to the children and the responsibility of parenthood and does not have a history of violence.
All of these matters, it would seem, are matters which would be unchanged since the orders were made on the 27th March. The nub of the father's application is contained in paragraph 7 of his affidavit and I will quote that in full:
I have serious concerns about the circumstances of the children, especially in relation to stability as I recently became aware that the children's attendance at school suffered greatly during the period since our separation and especially after the orders dated 27th March 2003 (annexed hereto and marked there is a true copy of a letter dated 10 December 2003 from K Public School concerning the children's attendance).
Annexure B is a letter from the Principal of K Public School under the hand of one J H who is the Principal. That letter addressed to whom it may concern states:
The attendance records for 2003 at K Public School indicate the following: G R, Term 1, 10 days absent (7 leave) 1 partial. Term 2, 2 days absent, 1 partial. Term 3, 8 days absent (6 sick). Term 4, 8 days absent (5 leave) 2 partial as at 10 December 2003. K R: Tterm 1, 9 days absent (leave) 1 partial. Term 2, days absent (leave) 2 partial. Term 3, 10 absent (1 day sick) 2 partial. Term 4, 9 days absent (leave) 2 partial as at 10 December 2003.
There is no comment by the Principal about any of the days absent sustained by the children other than those comments in brackets or those following in reference to each Term on the list. The letter from the Principal which has not been objected to is a letter which is annexed to the father's affidavit. There is no affidavit as such from the Principal and on a final hearing it would not be acceptable for a letter to be annexed to the affidavit of the father or indeed to anyone else.
I would make it clear that whilst such matters may be allowed in interim hearings or preliminary applications as is this, that for a final hearing a letter from a person is usually not regarded as persuasive evidence unless the other party consents. Annexing a letter to an affidavit sworn or affirmed by another person gives that letter no greater evidentiary weight than if the letter is tendered without annexure to someone else's affidavit. In the ordinary course of events if that person's evidence is to be relied on that person's evidence should be on affidavit. Nevertheless for the purpose of these proceedings no objection has been taken to the letter.
The argument put by Mr Hammond of counsel for the father is that the evidence as he says shows that the children have been absent from school for many days. He points out the case law refers to the need for significant change rather than substantial change.
I have been referred to the decision of the Full Court of the Family Court in the matter of Houston v Sedorkian (1979) FLC 900-699. In that decision which was handed down in Adelaide on the 13th July 1979 and is in fact a decision of a single Judge of the Family Court, His Honour Marshall J set out a number of principles:
1)a custody order, to use the old terminology, is subject to discharge or variation in the light of material changes and circumstances since the date of the existing order;
2)an inquiry directed to changed circumstances necessarily involved a consideration of the set of circumstances that existed at the time when the current order was made and it is necessary to have regard to the reasons for judgment of the Judge of the previous hearing;
3)whilst in an inquiry of this nature the starting point is usually the order or the reasons for judgment of the original Judge there may be cases where a Court hearing a subsequent application may admit evidence of events prior to or at the time of the previous occurring (for instance such matters as cross-examination on previous evidence and matters of substance not placed before the trial Judge of the original hearing and not referred to in his judgment);
4)the inquiry is a positive one directed to the best interests of the children and the parties seeking the discharge of a current order for custody be placed before the Court evidence which demonstrates a material change in circumstances such as to warrant the discharge or variation of a current order. This is of particular relevance in a case where a relatively short period of time has elapsed since the date of making of the current order;
5)it is the duty of a Judge to consider all of the relevant facts and circumstances and to exercise his discretion having regard in particular to section 64(1A) which is the old equivalent to section 65E:
The Court should regard the welfare of the child as the paramount consideration.
In that case His Honour found that there had been a substantial change to the relevant circumstances. His Honour in fact referred to the decision of the Full Court in Hayman v Hayman (1976) FLC 90-140.
Looking at the principles that apply I would comment that the principles that are described as the test in Rice v Asplund (1979) FLC 90-725 form a particular class of law which is perhaps a subclass of the principles that apply to summary dismissal of applications. There are of course principles relating to summary dismissal of applications and I am mindful of the decision of Kirby J, of the High Court of Australia in Linden v Commonwealth (No 2) (1996) 136 ALR 251 where his Honour said at pages 255 and 256:
An opinion of the Court that the case appears weak and that it is unlikely to succeed is not alone sufficient to warrant termination. Even a weak case is entitled to the time of the Court.
The decision in Linden sets out a number of matters which a Court must consider in summary dismissal of applications generally. The Full Court of the Family Court has in a series of judgments placed residence, formerly custody matters and parenting matters generally, in what appears to me to be a special category however governed by the principle that a Court should not likely entertain an application to reverse an earlier residence order.
In the decision of Hayman (supra) the Full Court considered with approval the decision of the Court in McManus (1969) 13 FLR 449 and also an unreported decision of Barber J, in the Supreme Court of Victoria in the matter of Gilder (1967) Vic Sup Ct which was handed down on the 17th February 1967.
The principles set out in those cases were continued in the well known decision of the Full Court in Rice v Asplund and in that case it was held that:
The Court should have regard to any earlier material and to the reasons for it and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order, to do so would invite endless litigation for changes an ever present factor in human affairs. Therefore the Court would need to be satisfied that there is some changed circumstance which would justify such a serious step, some new factor arising or at any rate some factor which was not disclosed at a previous hearing which would have been material.
Now I would comment that the decision in Houston v Sedorkian (supra) which of course is a decision of a Judge of the Family Court sitting at first instance, and incidentally is not binding upon this Court, unlike a decision of the Full Court, Houston appears to have been decided by reference to the Full Court's decision in Hayman but not by reference to the decision of the Full Court in Rice v Asplund itself.
I note that Houston was handed down on the 13th July 1979 whilst Rice v Asplund was handed down on the 22nd November 1978. According to the editors of the Family Law Cases, a copy of the judgment was not received from the Court until the 22nd January 1980. Certainly in Houston v Sedorkian his Honour makes no reference at all to Rice v Asplund and I can only infer that the decision was not cited to His Honour.
The decision in Rice v Asplund was followed in the more recent case of King v Finneran (2001) FLC 93-079 which was an appeal from a decision of Federal Magistrate Ryan in this Registry. In that case Collier J, sitting as the Full Court dealt with the way in which the Court applies the required test:
To apply the test in Rice v Asplund is to make an assessment on the material then available to the Court as to whether or not the matters raised in that material make it necessary or proper in the best interests of the children, the subject of the litigation, to allow further proceedings. In arriving at such a decision the Court will give consideration to the importance or seriousness of the issues raised both individually and where necessary collectively and the impact that they may have on the children. It may be necessary to assess whether or not the matters are indeed matters of change or whether they are completely fresh issues that require revisiting the earlier decision.
On reviewing the authorities generally I am of the view that the principles derived from those authorities appear to be these:
a)the onus is on the applicant who seeks to reverse an earlier parenting order to satisfy the Court that there has been a change in circumstances since the original order was made sufficient to require the matter to be re-litigated (see Rice v Asplund and also King v Finneran to which I have previously referred);
b)the principle is the same whether the earlier order is one made after a defended hearing or one which was made by consent provided that the relevant issues were considered (see Freeman (1978) FLC 91-857);
c)there is a discretion in the trial Judge or Federal Magistrate to decide the question of a change in circumstances as a preliminary issue or to proceed to a Court hearing (see Bennett (1991) FLC 92-191);
d)the change in circumstances must be sufficient to warrant a re-examination of the issue but need not satisfy the Court that those changed circumstances would result in a change to the orders only that there is a real likelihood of such a change (see King v Finneran);
e)the evidence of changed circumstances to be considered by the Court is not restricted to the evidence available at the time the application was commenced but as the evidence available at the time the circumstances are considered by the Court (see King v Finneran particularly at page 88-367).
I would add to those principles that the length of time that has passed since the earlier orders were made will quite often be a relevant factor. Now I note that the counsel for the father sought to call oral evidence to expand on and in fact add to the matters set out in the father's affidavit. I did not accede to that application. In my view the evidence of the parties should be set out in the affidavit and if there is different material or fresh material to be considered it should be on affidavit and should be made available to the other party’s legal advisers at the earliest possible opportunity. This is certainly not of course, a Court where evidence-in-chief is normally given cold and orally without any reference to the other party.
Mr Hammond of counsel also sought to cross-examine the respondent on her affidavit although Mr Russell for the respondent did not seek to read his client's affidavit at this stage and I am not of the view that calling the respondent for cross-examination will necessarily assist the applicant in satisfying the Court that there is sufficient evidence of change of circumstances.
The evidence upon which the father relies relates to the absence from school of the two children. Mr Russell, for the mother, has referred me to the fact that in 2003 a significant amount of Term 1 of the school year took place prior to the consent orders being made by the Family Court. The orders were made on the 27th March 2003 whereas Term 1 started on the 29th January and finished on the 13th April. So in effect during that Term there were only 15 days that had transpired after the making of the orders by consent in the Family Court. I am not persuaded that I should go behind consent orders that were made.
Another matter that is relevant relates to the description in the letter from the school Principal that is annexed to the father's affidavit. Leaving aside the days away from school, or the days absent from school sustained by the children in Term 1, as there is no evidence that any of them took place after the orders were made, I look at the orders set out in Term 2.
As far as G is concerned, in Term 2 she was absent for two days and there was one partial absence. In Term 3 she was absent for eight days but for six of those days she was sick. There were two days that were unaccounted for. In Term 4 she was absent from school for eight days but was given leave by the school for five of them and there are two partial days. In other words there are three days in term 4 where she was absent from school and that absence was unexplained.
With respect to K, Term 2 she was absent for two days with leave on each occasion and had two days where she was away for part of the day without explanation. I presume it is Term 2, it just says days absent leave, two partial. In Term 3 there are 10 days absent and two partial days. She was sick for one day so there are nine days unexplained. In Term 4 she was absent for nine days, on leave, and there were two partial days.
In other words for G in those three terms she had unexplained absences from school for seven days and absences where she was away for a part of the day on three occasions.
For K she had nine days unexplained absence in term 3 and had six days when she was away for part of the day.
No evidence was produced to the Court to explain the reason why either children were granted leave by the school for those absent explained days, and the evidence provided by the father does not indicate any criticism of that situation. There is no comment made other than that the children were granted leave or were accepted as being sick. There was no affidavit by the Principal and I can take judicial notice of the fact that where a child's absence is a matter of concern to the school then the home school liaison officer is usually involved. There is no evidence before me that would show any involvement by a home school liaison officer at all.
What then is the evidence before the Court as at today's date which would justify the reopening of residence proceedings which were decided less than 12 months ago. The fact is that Mr Russell for the mother summarised it by saying the records show that each girl was absent from school for a few days without explanation, nine days in one case ten days for another. The other days absence from school have been explained, at least to the school's satisfaction.
There is no evidence of any other circumstances. I am told by Mr Hammond from the bar table that the father has now formed a new relationship. This has just been totally ignored in the father's affidavit and if indeed the father had formed a new relationship one would have thought that the new partner would have been the deponent to an affidavit. There is just no material at all.
The reality is that the material filed by the father does not indicate any significant or substantial or material matters which would justify reopening the question of the residence of the children. The Court should not likely entertain an application to reverse an earlier custody or residence order and I am mindful of the fact that this order was made by consent at a time when both parties were legally represented less than a year ago.
I am not satisfied that there are some changed circumstances which would justify the serious step of reopening residence proceedings, I am not satisfied that some new factor has been shown or at any rate some factor which was not disclosed at the previous hearing which would have been material.
I am not satisfied that the matters raised in the father's affidavit make it necessary or proper in the best interests of the children, the subject of the litigation, to allow further proceedings. As far as the father's application to vary the residence orders made on the 27th March 2003 is concerned that application will be dismissed.
Costs
The respondent having been successful in these proceedings seeks an order for costs. I am mindful of the fact that under section 117(1) of the Family Law Act that each parties proceedings under the Act should be at his or her own costs subject to sub-section 117(2) and for that matter 117(2A) and under subsection 2 if the Court is of the opinion that there are circumstances that justify it from doing so the Court may make such order as to costs and security for costs as the Court considers just.
Sub-section 117(2A) sets out a number of matters relevant to a costs order and the Court must consider those including the financial circumstances of the parties, whether any party to the proceedings is in receipt of assistance by way of legal aid, the conduct of the parties to proceedings, whether the parties to the proceedings were necessitated by the failure of a party to comply with the previous orders, whether any party to the proceedings has been wholly unsuccessful, whether any party has made an offer in writing to settle the proceedings and such other matters as the Court consider relevant.
In my view the matter that stands out here is that set out under section 117(2A)(e):
Whether any party to the proceedings has been wholly unsuccessful in the proceedings.
On the face of the applicant’s material a Court would have had to have been extremely generous to be persuaded that there were any grounds for reopening residence proceedings which had been dealt with by consent orders less than a year before. There was material referred to relating to the applicant being in a fresh relationship and none of this was on affidavit and indeed there is no affidavit by the person with whom the father is now in a relationship who it would seem would be a relevant figure for consideration in any application for residence, be it shared residence or sole residence.
This is an appropriate matter for costs. Is it a matter for indemnity costs? In my view the authorities appear to be, and I am mindful of the decision by Shepherd J in the Federal Court in Colgate-Palmolive Company v CussonsPty Limited (1993) 46 FCR 225, where His Honour held that there had to be some special circumstances matters that were out of the ordinary to justify an order for indemnity costs and that appears to be the principle that I should apply in this Court. I am not persuaded that there is anything so out of the ordinary that would justify an order for indemnity costs.
What I propose to do is make an order for costs as set out in Schedule 1 of the Federal Magistrates Court Rules 2001 noting that the respondent opposed the application up to the completion of the first day and that there has been a summary hearing as a discrete event.
I note the time allowed that would allow one hour of the daily hearing fee which is set out for one hour for the first Court date and I would allow two hours for today of the daily hearing fee but I propose to include the advocacy loading as set out in Rule 21.14. By my calculations, taking all those matters into account and noting that the Court must specify an amount of costs or refer a matter to taxation, then the Court must allow time to pay.
It is for these reasons that I make the Orders as set out at the commencement of this decision.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: C. Soliman
Date: 18 March 2004
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