Roberts and Mansfield
[2011] FamCA 544
•14 July 2011
FAMILY COURT OF AUSTRALIA
| ROBERTS & MANSFIELD | [2011] FamCA 544 |
| FAMILY LAW - CHILDREN – application by the father seeking variation of previous final parenting orders – where the mother seeks the dismissal of the father’s application pursuant to the rule in Rice and Asplund (1979) FLC 90-725 – where the issue was determined as a preliminary matter – consideration of whether there had been a change or new factors arising in the circumstances sufficient to require further hearing – where it was in the best interests of the child that proceedings be concluded – father’s application dismissed. |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 65D(2), 69ZN, 69ZQ & 69ZR Family Law Rules 2004 rr 1.04, 1.06, 1.07, 1.10, 1.12, 10.12, 10.13 & 10.14 |
| F & C & Child Representative [2004] FamCA 568 Marsden & Winch [2009] FamCAFC 152 Rice and Asplund (1979) FLC 907-25 |
| APPLICANT: | Mr Roberts |
| RESPONDENT: | Ms Mansfield |
| FILE NUMBER: | ADC | 1639 | of | 2008 |
| DATE DELIVERED: | 14 July 2011 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Dawe J |
| HEARING DATE: | 23 May 2011 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Elekwachi |
| SOLICITOR FOR THE APPLICANT: | FNE Lawyers |
| COUNSEL FOR THE RESPONDENT: | Ms Cocks |
| SOLICITOR FOR THE RESPONDENT: | Ian Charman & Associates |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mrs Lindsay |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Services Commission of SA |
Orders
The father’s Initiating Application filed on 29 November 2010 is dismissed.
Remove all proceedings from the active pending list.
IT IS NOTED that publication of this judgment under the pseudonym Roberts & Mansfield is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT ADELAIDE |
FILE NUMBER: ADC 1639 of 2008
| Mr Roberts |
Applicant
And
| Ms Mansfield |
Respondent
REASONS FOR JUDGMENT
Introduction
The father Mr Roberts brings proceedings against the mother Ms Mansfield in which he seeks that the Court determine the parenting orders to be made in relation to the child of the parties L born in December 2006.
The mother brings an interim application seeking that the proceedings be dismissed relying upon the principles in Rice and Asplund (1979) FLC 907-25 on the basis that there has not been a sufficient change in circumstances to require further litigation.
The hearing
With the consent of all parties, the hearing proceeded on the basis that the preliminary issue would be determined on the papers currently before the Court.
At the interim hearing the following counsel appeared; Mr Elekwachi for the father, Ms Cocks for the mother and Mrs Lindsay for the Independent Children’s Lawyer.
On 23 May 2011 I heard the submissions of counsel. Judgment was reserved.
Background and relevant chronology
The applicant father was born in October 1971 and is therefore aged 39. The mother was born in April 1977 and is therefore aged 34. The history of events in the relationship with the parties has been the subject of some dispute, however, it would appear that having met in 2004, they commenced a relationship in late 2005. Both parties have children by previous relationships.
L, the child of the mother and father, was born in December 2006. The parties separated in January 2008. L would then have been just over a year old.
Since the separation of the parties, L has resided primarily with the mother.
The father commenced proceedings in the Family Court of Australia on 28 April 2008. In that application he sought final orders which essentially provided for the parents to have equal shared parental responsibility for L and for L to live with each parent week about and on other special occasions.
The mother responded to the proceedings seeking final orders that she have sole parental responsibility for L, that L live with her and “that the child spend such time with the father and upon such conditions as this Honourable Court deems fit”.
At the time of filing her responding proceedings, the mother also filed a Notice of Child Abuse or Family Violence and an affidavit setting out her evidence of the relationship, including allegations of family violence.
Various preliminary hearings took place on the affidavit material filed by the parties and interim orders made.
Numerous subpoenas were issued.
An Independent Children’s Lawyer was appointed for L.
In May 2009 a Family Consultant’s report was prepared and released to the parties. The recommendations included the continuation of the current orders, with the exception of a variation of the handover times. The current orders then provided for L to live with the mother and spend regular time with the father from Monday to Wednesday each week.
The Family Consultant’s report also included a reference to the parties needing “to put their differences aside and focus on promoting [L’s] relationship with each other …”. (See report of Ms Crabb dated 8 May 2009).
Various procedural and interim orders were made to prepare the matter for final conclusion hearing to commence on 11 November 2009 with a compliance check on 26 October 2009.
When the matter came on before the Court on 26 October 2009 the father appeared unrepresented. The mother was present with counsel and the Independent Children’s Lawyer’s counsel was also present. The father indicated that he wished to discontinue the proceedings. I therefore dismissed his proceedings.
Final orders were made by me on 27 October 2009 for the reasons then provided.
The final orders made on that date provided as follows:
“UPON NOTING that the father has this day discontinued his application
BY DEFAULT IT IS ORDERED:
(1)That the mother have sole parental responsibility for the infant child [L] born […] December 2006.
(2)That the said child live with the mother.
(3) That the said child spend time with the father as follows:
(a) Until the child commences kindergarten
(i)Each alternate weekend from 2:30 pm on the Friday until 9:30 am the following Monday commencing Friday 30th October 2009;
(ii)From 10 am Monday until 9:30 am Wednesday on each alternate week commencing 9th November 2009;
(iii)That all handovers for (i) and (ii) above shall occur at the [M Childcare Centre] upon the following basis:
(I)The mother shall deliver the said child to the Child Care Centre at 1:30 pm on each alternate Friday and at 9:30 am on each alternate Monday to enable the father to collect the said child from that centre at the time set out herein;
(II)On the Monday following the alternate Fridays referred to in subparagraph (i) hereof and the Wednesday following the alternate Monday referred to in subparagraph (ii) hereof the father shall deliver the said child to the centre at 9.30 am and the mother shall collect the said child from the said centre at a time she determines.
(III)The costs in relation to handover shall be met equally by the parties.
(b)Upon the said child commencing kindergarten for the same times as set out above but in the event that the said child has a session of kindergarten at the time scheduled for her handover then handover shall occur by delivering to or collecting the said child from kindergarten.
(c)Upon the said child commencing school
(i)During school terms each alternate weekend from end of school on the Friday to the commencement of school Monday commencing on the second Friday of each term.
(ii)For the second half of each of the between terms school holidays from 5 pm on the middle Friday of those holidays until 5 pm on the last Saturday of the holidays.
(iii)For each alternate week of the Christmas school holidays commencing at the end of school on the last Friday of term four until 5 pm the following Friday and each alternate week thereafter.
(d)Notwithstanding anything herein before contained the said child shall share the Christmas Day/Boxing Day period between the parties as follows:
(i)With [L] spending from 3 pm Christmas Eve to 3 pm Christmas Day in odd years and 3 pm Christmas Day until 5 pm Boxing Day in even years with the father.
(ii)With [L] spending from 3 pm Christmas Day until 5 pm Boxing Day in odd years and 3 pm Christmas Eve until 3 pm Christmas Day in even years with the mother.
(e)Notwithstanding anything herein before contained in the said child shall spend between 10 am – 6 pm on Mother’s Day with the mother and between 10 am – 6 pm on Father’s Day with the father.
(f)Such other times including special occasions as may be agreed in writing between the parties.
(4)That all handovers that do not occur at either the [M Childcare Centre], Kindy or School shall take place at [Location 1] with the handover to take place between the mother or her agent and [Mr T Tilson], [Mr J Tilson] and/or [Ms M Tilson] or otherwise as may be agreed in writing between the parties.
(5)That both parties shall keep the other informed of any medical condition or emergency sustained by the child whilst in their care.
(6)That the mother shall keep the father informed of the said child’s kindergarten and school.
(7)That the father be at liberty to obtain at his own cost copies of the said child’s Kindy and school reports, newsletters, school photographs and other information parents are usually entitled.
…”
The father then instituted the fresh proceedings by Initiating Application filed on 29 November 2010 in which he sought the following orders by way of final orders:
“1.That the child [L], born […] December 2006, lives with the Father.
2.That the child [L], born […] December 2006, live with the mother at times deemed appropriate by this Honourable Court.
3.That both the Father and the mother (sic) have shared parental responsibility in relation to decisions for the long-term care, welfare and development of the child, subject to the communication and notification of such decisions to the (sic) each other.
4.The parties are restrained from denigrating or criticising each other or any of the other adults or children in the presence of the child.”
He also sought interim and procedural orders.
His supporting affidavit filed on 29 November 2010 sets out the father’s concerns. He asserts that he was justified in retaining L when she was due to be returned to the mother at the completion of the father’s time with her in November 2010.
Paragraph 14 of that affidavit says (inter alia):
“I have retained the child only after months of evidence which have lead (sic) me to strongly believe that the respondent has been coaching the said child working to destroy my relationship with her. I believe that [L] is in serious danger of not only having her relationship with me destroyed, but also those with her siblings and step siblings. She has been (sic) increasingly become more confused and quite conflicted as she travels between the two homes. Already my wife and I have had to urge the older boys in our home to exercise caution when playing with [L]. My wife and I have even bought cameras to install in our home as a way of protecting the children and ourselves.”
The information supplied by the parties also indicates that the father’s new partner, Ms Y, is involved in Court proceedings with her former partner and father of her children. There are also proceedings in the Federal Magistrates Court between the father and his first wife, the mother of his two sons.
L was due to be returned to the mother’s care at 9.30 am on Monday 29 November 2010 at the M Childcare Centre. The father did not take L to the childcare centre.
The mother attempted to arrange L’s return and attended at the father’s home with a police patrol standing by. L was not collected.
In her response to the Initiating Application the mother sought final orders discharging the orders for the father to spend time with L and seeking an order “that the father spend time with the said child on such occasions and upon such conditions as this Honourable Court deems fit.”
Subsequently the mother has informed the Court that she is not seeking the suspension of the orders, but seeks to maintain the original orders, being the final orders made on 27 October 2009.
In her affidavit filed on 7 December 2010 the mother denies observing any sexualised behaviour by L in her care. She also denies alleging that the father had been sexually abusing L (as alleged by the father and one of his witnesses).
The mother refers to the ongoing difficulties between the parties as a result of litigation between other partners.
The mother denied acting in a way which was designed or would in fact interfere with the relationship between L and the father. She referred to the District Court proceedings between herself and the father in relation to the Domestic Partner’s Property Act 1996 (SA).
On 9 December 2010, for reasons which I gave on that date, the father was ordered to deliver up L to the care of the mother.
On the 9 December 2010 other orders were made including that the parties make arrangements for psychiatric assessment be carried in relation to each party’s parenting capacity. The orders for L to spend time with the father were suspended pending receipt of Dr B’s reports. The order was made renewing the appointment of an Independent Children’s Lawyer for L.
At the hearing before me on 9 December 2010, the father indicated that he considered that L should live one week with the mother and one week with him. Part of paragraph 8 and paragraph 9 of my reasons of 9 December 2010 state:
“8.…When asked what he was proposing by way of interim orders, the father indicated to the Court, this morning, that he wanted the child, [L], to live with both himself and the mother equally. He indicated he would consent to an order that [L] live one week with him and one week with the mother.
9.That concession in open Court appears quite inconsistent with the basis upon which he says he retained [L], namely, that [L] was behaving in a sexually inappropriate way towards him and that he therefore believed the mother was taking steps to make a false allegation that he had sexually abused [L].”
The Court has now received reports from Dr B, Psychiatrist, about both the mother and the father.
Dr B’s report of 4 January 2011 in relation to the father concluded that:
“There were no psychiatric factors, illness or personality disorder, which would inform the Court in its decision.”
Dr B’s report of 8 January 2011 in relation to the mother concluded:
“That whilst there has been a past history of depression and Posttraumatic Stress Disorder, and there are some continuing symptoms of Posttraumatic Stress Disorder, she has shown resilience over the past few years, despite significant stresses in her life, which suggests that she has been able to be make good use of the therapy that she has received, and as such, the likelihood of a severe depression of the type that could affect her parenting capacity is low. I therefore saw no reason from a psychiatric perspective why she would not be a fit and proper parent at the present time.”
Annexed to the affidavit of the father filed on 4 April 2011 are copies of documents from the Department for Families and Communities Families SA. The first annexure relates to the allegations made to the department on 19 July 2010 when L complained to the father about her vagina hurting. The notifier was stated to have observed:
“The emotional presentation of [L] was normal and she appeared fine. Notifier believes [L] could have been coaxed to say she had blood coming from her vagina.”
The next document relates to intake details of Child Protection Notification made on 19 February 2010 relating to other children in the mother’s household and the father’s household, including concerns about the father’s behaviour towards L.
Annexure 2 to the affidavit is an intake in relation to L made on 30 November 2010, after the father refused to return L to the care of the mother, where it appears a notifier was alleging that L was being sexually abused when in the father’s care.
On 11 May 2011 the mother filed an affidavit in which she specifically indicated that she was not now seeking any additional orders to be made or any change to the orders of 27 October 2009.
The Court is not aware of any investigation being carried out by any Child Protection Service or Families SA concerning the allegations raised by the father about the sexualised behaviour by L.
The Court file indicates that allegations have been made in relation to sexual abuse of other children forming part of the extended family of the parents and their current or former partners.
The Law
The Family Law Act 1975 (Cth) (“the Act”) gives the Family Court of Australia wide jurisdiction to deal with children’s issues. The Act does not provide any specific limit to litigation about children.
Section 69ZN states:
Principles for conducting child-related proceedings
Application of the principles
(1) The court must give effect to the principles in this section:
(a)in performing duties and exercising powers (whether under this Division or otherwise) in relation to child-related proceedings; and
(b)in making other decisions about the conduct of child-related proceedings.
Failure to do so does not invalidate the proceedings or any order made in them.
(2) Regard is to be had to the principles in interpreting this Division.
Principle 1(3)The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.
Principle 2
(4)The second principle is that the court is to actively direct, control and manage the conduct of the proceedings.
Principle 3
(5)The third principle is that the proceedings are to be conducted in a way that will safeguard:
(a)the child concerned against family violence, child abuse and child neglect; and
(b) the parties to the proceedings against family violence.
Principle 4(6)The fourth principle is that the proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child-focused parenting by the parties.
Principle 5
(7)The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible. (Emphasis added)
Section 69ZQ provides:
General duties
(1) In giving effect to the principles in section 69ZN, the court must:
(a)decide which of the issues in the proceedings require full investigation and hearing and which may be disposed of summarily; and
(b) decide the order in which the issues are to be decided; and
(c)give directions or make orders about the timing of steps that are to be taken in the proceedings; and
(d)in deciding whether a particular step is to be taken--consider whether the likely benefits of taking the step justify the costs of taking it; and
(e) make appropriate use of technology; and
(f)if the court considers it appropriate--encourage the parties to use family dispute resolution or family counselling; and
(g)deal with as many aspects of the matter as it can on a single occasion; and
(h)deal with the matter, where appropriate, without requiring the parties' physical attendance at court.
(2) Subsection (1) does not limit subsection 69ZN(1).
(3) A failure to comply with subsection (1) does not invalidate an order.
Section 69ZR states:
Power to make determinations, findings and orders at any stage of proceedings
(1)If, at any time after the commencement of child-related proceedings and before making final orders, the court considers that it may assist in the determination of the dispute between the parties, the court may do any or all of the following:
(a) make a finding of fact in relation to the proceedings;
(b) determine a matter arising out of the proceedings;(c)make an order in relation to an issue arising out of the proceedings.
Note: For example, the court may choose to use this power if the court considers that making a finding of fact at a particular point in the proceedings will help to focus the proceedings.
(2)Subsection (1) does not prevent the court doing something mentioned in paragraph (1)(a), (b) or (c) at the same time as making final orders.
(3)To avoid doubt, a judge, Judicial Registrar, Registrar, Federal Magistrate or magistrate who exercises a power under subsection (1) in relation to proceedings is not, merely because of having exercised the power, required to disqualify himself or herself from a further hearing of the proceedings.
Parts of section 43 of the Act state:
(1)The Family Court shall, in the exercise of its jurisdiction under this Act, and any other court exercising jurisdiction under this Act shall, in the exercise of that jurisdiction, have regard to:
(c)the need to protect the rights of children and to promote their welfare;
(ca) the need to ensure safety from family violence;
In relation to children’s proceedings, generally the provisions of Part VII set out many detailed matters.
The significant sections are:
Section 60B
Object of Part and principles underlying it
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3)For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a)to maintain a connection with that culture; and
(b)to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views: and
(ii) to develop a positive appreciation of that culture.
Section 60CA
Child’s best interest paramount consideration in making a parenting order
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 60CC
How a court determines what is in a child’s best interests
Determining child’s best interests
(1)Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(3) Additional considerations are:
(a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b)the nature of the relationship of the child with:
(i)each of the child's parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f)the capacity of:
(i)each of the child's parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j)any family violence involving the child or a member of the child's family;
(k)any family violence order that applies to the child or a member of the child's family, if:
(i)the order is a final order; or
(ii)the making of the order was contested by a person;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m)any other fact or circumstance that the court thinks is relevant.
Other specific sections in Part VII of the Act deal with the Court’s obligation in relation to matters which raise issues of family violence and child abuse.
Counsel for the father sought to rely upon s 63H(1A)(1)(c) (sic). This was misplaced. Section 63H(1A) reads:
“(1A) This section applies to a registered parenting plan.”
Section 63H(1)(c) provides:
“(1)The court in which the plan was registered may set aside the plan, and its registration, if the court is satisfied;
…
(c) that is in the best interests of a child to set aside the plan.”
There is no parenting plan entered into between the parties. There is no registered parenting plan. Section 63H does not apply to these proceedings.
Section 65D(2) states:
Court's power to make parenting order
…
(2)Without limiting the generality of subsection (1) and subject to section 61DA (presumption of equal shared parental responsibility when making parenting orders) and 65DAB (parenting plans) and this Division, a court may make a parenting order that discharges, varies, suspends or revives some or all of an earlier parenting order.
…
Relevant rules of the Family Court include the following:
Rule 1.04
Main purpose of Rules
The main purpose of these Rules is to ensure that each case is resolved in a just and timely manner at a cost to the parties and the court that is reasonable in the circumstances of the case.
NoteSection 43 of the Act sets out the principles that the court must apply when exercising its jurisdiction under the Act.
Rule 1.06
Promoting the main purpose
The court must apply these Rules to promote the main purpose, and actively manage each case by:
(a)encouraging and helping parties to consider and use a dispute resolution method rather than having the case resolved by trial;
(b)having regard to unresolved risks or other concerns about the welfare of a child involved;
(c)identifying the issues in dispute early in the case and separating and disposing of any issues that do not need full investigation and trial;
(d)at an early stage, identifying and matching types of cases to the most appropriate case management procedure;
(e)setting realistic timetables, and monitoring and controlling the progress of each case;
(f)ensuring that parties and their lawyers comply with these Rules, any practice directions and procedural orders;
(g)considering whether the likely benefits of taking a step justify the cost of that step;
(h)dealing with as many aspects of the case as possible on the same occasion;
(i)minimising the need for parties and their lawyers to attend court by, if appropriate, relying on documents; and
(j)having regard to any barriers to a party's understanding of anything relevant to the case.
Rule 1.07
Achieving the main purpose
To achieve the main purpose, the court applies these Rules in a way that:
(a)deals with each case fairly, justly and in a timely manner;
(b)encourages parties to negotiate a settlement, if appropriate;
(c)is proportionate to the issues in a case and their complexity, and the likely costs of the case;
(d)promotes the saving of costs;
(e)gives an appropriate share of the court's resources to a case, taking into account the needs of other cases; and
(f)promotes family relationships after resolution of the dispute, where possible
Rule 1.10
Court may make orders
(1)Unless a legislative provision states otherwise, the court may make an order, on application or on its own initiative, in relation to any matter mentioned in these Rules.
(2)When making an order, the court may:
(a)impose terms and conditions;
(b)make a consequential order;
(c)specify the consequence of failure to comply with the order; and
(d)take into account whether a party has complied with a pre‑action procedure.
Rule 1.12
Court may dispense with Rules
(1)These Rules apply unless the court, on application or its own initiative, orders otherwise.
(2)The court may dispense with compliance with any of these Rules at any time, before or after the occasion for compliance arises.
(3)In considering whether to make an order under this rule, the court may consider:
(a)the main purpose of these Rules (see rule 1.04) ;
(b)the administration of justice;
(c)whether the application has been promptly made;
(d)whether non‑compliance was intentional; and
(e)the effect that granting relief would have on each party and parties to other cases in the court.
Rule 10.12
Application for summary orders
A party may apply for summary orders after a response has been filed if the party claims, in relation to the application or response, that:
(a)the court has no jurisdiction;
(b)the other party has no legal capacity to apply for the orders sought;
(c)it is frivolous, vexatious or an abuse of process; or
(d)there is no reasonable likelihood of success.
Rule 10.13
Application for separate decision
A party may apply for a decision on any issue, if the decision may:
(a)dispose of all or part of the case;
(b)make a trial unnecessary;
(c)make a trial substantially shorter; or
(d)save substantial costs.
Rule 10.14
What the court may order under this Part
On an application under this Part, the court may:
(a)dismiss any part of the case;
(b)decide an issue;
(c)make a final order on any issue;
(d)order a hearing about an issue or fact; or
(e)with the consent of the parties, order arbitration about the case or part of the case.
Note This list does not limit the powers of the court. The court may make orders on an application, or on its own initiative (see rule 1.10).
The Full Court of the Family Court of Australia set out certain principles to be applied in these matters in Rice and Asplund (Supra). The Court emphasised that it was “a question of finding that there are circumstances which require the court to consider afresh how the welfare of a child should be best served. The principles apply whether the original order is made by consent or after a contested hearing.” The Full Court considered that when being asked to entertain further proceedings the Court should consider the reasons for, and the material on which, the earlier order was based.
In the more recent decision of the Full Court in F & C & Child Representative [2004] FamCA 568 under the heading “Relevant principles to be applied when summarily dealing with an application to relitigate residence issues” it states:
“36.The Family Law Act 1975 provides in s 65D that in proceedings for a parenting order, the court may make such parenting order as it thinks proper and that a court may make a parenting order that discharges, varies, suspends or revives some or all of an earlier parenting order.
37.There are no guidelines or requirements contained in the Act as to when a court may refuse to entertain an application for the variation of an existing order, nor the matters that a court should consider in determining whether or not to exercise its jurisdiction (c/f s 83(2) – requirements to be satisfied before varying a maintenance order).
38.The principles that have been developed by the Full Court in such applications are well settled. In Rice v Asplund Evatt CJ, with whom Pawley SJ and Fogarty J agreed said at 78,905:
"The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order and to the reasons for 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 be to invite endless litigation for change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that…there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material…"
39.In Griffiths and Griffiths (1981) FLC 91-064 at 76,500; (1981) 7 Fam LR 322 at 323-324; Lindenmayer J said:
"In order for the husband to achieve a change of custody, even after a full hearing on the merits, he must establish a significant change of circumstances since the last order was made; a change of circumstances sufficient to justify a review by the Court of the custodial situation…"
40.Nygh J, with who Evatt CJ and Burton J agreed, said in F and N (1987) FLC 91-813; (1987) 11 Fam LR 664 that the Court should be reluctant in assuming jurisdiction too soon after there has been a full and adequate hearing of the custodial dispute between the parties.
41.In Bennett v Bennett (1991) FLC 92-191; (1990) 14 Fam LR 397 Nicholson CJ, Simpson and Finn JJ accepted as correct the general principle expressed by the Full Court in Rice v Asplund that fresh applications for custody should not be entertained unless there existed a substantial change in circumstances.
42.In Saad v Saad (1993) FLC 92-332 at 79,519; (1992) 16 Fam LR 55 at 71 Baker, Lindenmayer and Moss JJ said:
"(3)Although it may be inappropriate, and is often unhelpful, in proceedings in relation to the guardianship and custody of or access to a child, to treat either party as bearing an onus of proof in relation to the welfare of the child, where a party applies for the variation or discharge of an existing order of that kind that party bears at least a forensic onus of placing before the court sufficient evidence of changed circumstances since the making of the existing order upon which the Court could be satisfied that it is in the interests of the welfare of the child to vary or discharge that order. (Rice and Asplund (1979) FLC 90-725; Freeman and Freeman (1987) FLC 91-857.)
(4)It was therefore not for the wife to adduce evidence sufficient to satisfy her Honour that Burton, J's [sic] orders should continue in force, but rather for the husband to at least place before her evidence sufficient to justify a reconsideration of those orders, and only if that were done was her Honour called upon to decide, in the exercise of her discretion, whether the welfare of the child required the discharge or variation of those orders, or their continuance."
…
44.Most recently, Collier J, when determining an appeal from a Federal Magistrate in King and Finneran (2001) FLC 93-079 dealt first with an argument that following the extensive amendments to the Family Law Act in 1995, it was now mandatory to conduct a full inquiry of the matters set out in s 68F whenever a parenting order is sought. We agree with his Honour’s view that the legislation has not changed sufficiently to cause that which could be done before the 1995 amendments, that is the application of a threshold test, to be unavailable since the coming into effect of the 1995 amendments. His Honour correctly observed at 88,367-88,369:
"41.The rule in Rice and Asplund is a rule evolved to protect children from involvement in further unnecessary litigation. To require a court to make a detailed determination of the matters set out in section 68F would defeat the purpose of that protection. It would mean that before the matter could be dealt with, a complete hearing, or …at least a hearing dealing with the section 68F factors, would have to be undertaken and completed.
42.A judge or magistrate exercising jurisdiction under the Family Law Act is not required to undertake the exercise of identification and evaluation that the husband urges. To do so would be to abolish for all effective purposes the opportunity of a court to make a threshold determination in cases where such an early end to the litigation was the best result for the children.
43.…It is clear that a trial judge has a discretion as to whether or not to deal with the matter at a threshold level or to embark upon a full hearing (see Bennett and Bennett (1991) FLC 92-191).
44.To apply the test in Rice and 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 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. This is not always a clear distinction.
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49.Clearly, both words [‘significant’ and ‘substantial’] indicate something out of the ordinary course of events. To be either significant or substantial is to indicate that a matter is of importance, of consequence, of real worth, of ample or considerable amount, quantity, size etc. When related to a change in circumstances, this clearly requires that the change or changes relied upon must be of consequence and must be more than that which would occur by the passage of time or in the usual course of human activity.
50.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 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.
…
62.What is required is that a trial judge be satisfied that there has been demonstrated such a change that it must be a matter of concern and requires the court to examine the situation of the children afresh. There is no assistance to be gained from the authorities as to whether or not this can be done cumulatively. The law at present requires that there be a change such as to require re-litigation. That change can be made up of component parts or could rely on one single but major change. However, a cumulative basis for change in circumstances cannot be made simply by weight of numbers of the changes alleged to have occurred.
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64.the purpose of the rule is to protect the children from exposure to further unnecessary litigation."
The application of the principles of Rice & Asplund (Supra) needs to be seen in context of the past litigation between the parties and the type of issues raised in the previous dispute. The Court needs to consider whether the changes or the new facts or circumstances are likely to bring about a change to the Court orders. The new facts should be so serious, substantial or significant as to require a further hearing.
As also indicated in the authorities whilst “changes are ever present factor in human affairs” (Rice & Asplund (Supra)), the best interests of the child remain the paramount consideration. The impact upon the child of ongoing litigation is one of the factors to be considered.
In Marsden & Winch [2009] FamCAFC 152 the Full Court (Bryant, CJ, Finn and Cronin JJ) said:
“48.In summary, the best interests issue arises because there are so many changes in the lives of families that the changed circumstances that will permissibly allow re-litigation of a decision must be circumscribed, otherwise there would exist in some cases the spectre of endless litigation finalising only when the child attains 18 years of age and the courts no longer have jurisdiction.
49.However, even that simple formulation must be subservient to the nature of the application itself. This is the genesis of the “rule” in Rice & Asplund and as Warnick J says it is founded on the notion that continuous litigation over the child or children is not generally in their interests. It is usually hoped that the determination of a controversy concerning children by a court will result in at least a reasonable period of stability of those arrangements and freedom from the stressful and conflictual effects of litigation on both parents and children. In addition, recent research demonstrates that conflict between parties is itself harmful to children
50.Nevertheless, there are significant changes that occur and which do require a court to reconsider decisions previously made. Whether in a particular case a court should be willing to embark upon another hearing concerning the child and parent, or whether to do so would itself be demonstrably contrary to the best interests of the child, is a decision to be made in each particular case. How is that decision to be made? The court must look at:
(1)The past circumstances, including the reasons for the decision and the evidence upon which it was based.
(2)Whether there is a likelihood of orders being varied in a significant way, as a result of a new hearing.
(3)If there is such a likelihood, the nature of the likely changes must be weighed against the potential detriment to the child or children caused by the litigation itself. Thus, for example, small changes may not have sufficient benefit to compensate for the disruption caused by significant re-litigation.”
Discussion and findings
The affidavit of the father filed on 29 November 2010 (which is the first affidavit in support of his application to change the orders in relation to L) refers to the fact that he has made notifications to Families SA and attended upon SA Police to make ancillary reports:
“… and I have had to take [L] to the hospital after her either making inappropriate comments or acting inappropriately. Attached hereto and marked with the letter “A” is a copy of a discharge letter I received from [Hospital 1] on 20 July 2010.”
(See paragraph 5 of the father’s affidavit filed on 29 November 2010).
Annexure “A” is from the Paediatric Emergency Department of Hospital 1. It is a letter dated 20 July 2010 and relates to L who was then aged 3 years. The diagnosis included:
“On examination, [L] is alert and settled; there are no external signs of any pathology on reviewing the genital and peri-anal regions.”
It also contained:
“After discussion with the Child Protection Service (CPS), [L] has been discharged home into the care of her dad. CPS will liaise with Families SA and will contact [the father] if required.”
This was four months before the father retained L in November 2010.
The other allegation in that first affidavit is:
“7.On Saturday 27 November 2010, my wife woke me up and informed me that while I was asleep, [L] laid on top of me and proceeded to perform a humping motion. This was also witnessed by my stepson. My wife and I attended the [B Police Station] and reported the incident (11/X65994).”
The father’s affidavit continues to refer to current proceedings at that time in the South Australian District Court in relation to Mr E (who is the father of the mother’s older daughters) in which Mr E was accused of sexually, inappropriate behaviour towards one of the daughters.
The father also refers to a recent attendance by the mother in November 2010 during the Federal Magistrates Court proceedings involving the father’s present wife, Ms Y, and her ex defacto, Mr S.
The affidavit also refers to the mother being delayed when returning from a Queensland holiday and allegations that L had made some statements to him in late November 2010 that one of her older brothers, who is now aged 10, “used to beat up her sister [U]”. (See paragraph 13 of the father’s affidavit).
He also complains in that affidavit about the mother allegedly making inappropriate statements on her “Face Book” page.
One of the annexures to the affidavit of the father filed on 4 April 2011 is a Familial Intake Report which includes allegations made by someone to the department on 19 July 2010. This coincides with the allegations made by the father about L’s behaviour in his care in July 2010.
Another annexure refers to Child Protection Notifications in February 2010 in relation to emotional abuse concerns about the children in which L is also mentioned.
The other annexure refers to an intake on 22 November 2010 which was recorded as “A notifier only concern”. It continues:
“Concerns raised included concerns re [L’s] sexualised behaviour towards older sibling [M] (12) allegations re the mother putting things into [L’s] head and allegations of a previous CAS investigation where [J’s] father allegedly hit [J] x25 times after the child witnesses sexualised play between siblings.”
The mother specifically denies that she is alleging that L has been abused by the father or in his household.
In her affidavit filed on 11 May 2011, the mother says that she swears that she is not seeking to make any change to the existing orders. She says in paragraph 7:
“7.I am not seeking to ventilate any issue before the Court which relates to the father’s capacity to provide appropriate care for my daughter [L] the subject child of these proceedings, when she is spending time with her father pursuant to the existing orders of this Honourable Court.”
Conclusion
Prior to the final orders being made on 27 October 2009, the mother and father were unable to communicate or carry out their duties as parents in a cooperative fashion. The mother and father had each formed relationships with other persons. There were (and are) ongoing disputes concerning the previous partners of the current partners of the mother and father and their care of other children.
Taking into account L’s age, the ongoing litigation and disruption in the households of L and the other children, L’s behaviour as described by the father in his affidavits filed since November 2010, would not fall into the category of a significant change or concern.
L’s father denies any sexually inappropriate behaviour towards her in his household. The mother does not make an allegation that L has been the subject of sexual abuse in the father’s household. There is no evidence to suggest that L has been sexually abused in the mother’s household.
Since bringing fresh proceedings in November 2010 the father has sought various parenting orders.
At the last hearing on 23 May 2011 counsel for the father indicated that the father was seeking orders that L spend equal time with each parent. He did not seek any supervision of the time L spends with the mother.
The father’s concerns about L’s welfare should be seen in this context.
The evidence before the Court indicates that the ongoing conflict between the mother and father has had an impact upon the children. This is a long-standing conflict which it would be in the best interests of the child to bring to an end. The ongoing litigation between the parties only exacerbates the conflict and does not reduce it.
Taking into account the evidence put forward by the father and the context of the allegations in the history of these proceedings, the Court is not satisfied that the father has established that it is in the best interests of L for there to be further litigation. To the contrary the evidence presented by the father, seen in the right context, supports a finding that it is in L’s best interest for the proceedings to be brought to an end leaving the orders of 27 October 2009 in place. Those orders provide for L to continue to have a meaningful relationship with both of her parents and to be protected from harm.
The evidence before the Court establishes that it is in L’s best interests, physically, emotionally and psychologically, for the proceedings between her parents to come to an end.
I therefore dismiss the Initiating Application and interim application of the father filed on 29 November 2010. Save and except on the question of costs, all of the proceedings are removed from the pending list.
I certify that the preceding eighty-six (86) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 14 July 2011.
Associate:
Date: 14 July 2011
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