Romano and Webb
[2008] FMCAfam 588
•30 May 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ROMANO & WEBB | [2008] FMCAfam 588 |
| FAMILY LAW – Parenting orders – cross application to amend or replace orders made by consent – Rice & Asplund test not satisfied – insufficient change in circumstances to justify amending orders. |
| Rice & Asplund (1978) 6 Fam LR 570 In the marriage of F & N (1987) 11 Fam LR 664 Saad & Saad (1993) FLC 92-332 |
| Applicant: | MR ROMANO |
| Respondent: | MS WEBB |
| File number: | BRM 9801 of 2006 |
| Judgment of: | Cameron FM |
| Hearing dates: | 29-30 May 2008 |
| Date of last submission: | 30 May 2008 |
| Delivered at: | Brisbane |
| Delivered on: | 30 May 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr G. Andrew |
| Solicitors for the Applicant: | Quinn & Scattini Lawyers |
| Counsel for the Respondent: | Mr J. O’Neill |
| Counsel for the Independent Children’s Lawyer: | Mr D.P Gardiner |
| Independent Children’s Lawyer: | Dooley Solicitors |
ORDERS
The application be dismissed.
The orders sought in the amended response be refused.
The independent children’s lawyer be discharged in this matter.
Each party bear their own costs including reserved costs.
IT IS NOTED that publication of this judgment under the pseudonym Romano & Webb is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRM 9801 of 2006
| MR ROMANO |
Applicant
And
| MS WEBB |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Introduction
The parties to these proceedings are Mr Romano (“father”) and
Ms Webb (“mother”). They commenced cohabitation in 1999 and separated in 2002. Their son, [A], was born in 2000. General outlines of the chronology of the parties’ relationship are set out in the case outlines of each party. I accept and adopt into these reasons the chronology provided by the independent children’s lawyer as follows:
Date
Event
1979
Father born.
1985
Mother born.
1999
Parties commence cohabitation. Both parents take illicit drugs intravenously from time to time whilst cohabiting.
2000
[A] born.
2002
Parties separate. [A] lives with mother. Father spends time with [A] on a fortnightly basis. Mother placed on tenants blacklist following separation.
June 02
Father holds [A] over because of concerns as to [A]’s living circumstances with mother. Files Family Court proceedings for residency and mother cross applies for recovery order.
09.08.02
Interim order of Judicial Registrar Smith that [A] live week about with each parent.
10.10.02
Interim order of Judicial Registrar Smith that [A] live with mother and father and paternal grandparents have contact together with [A] every alternate weekend with the paternal grandparents supervising the father’s contact.
14.04.03
Order of Justice O’Reilly (in absence of father) that [A] live with mother and continuing, father’s contact with [A] at the paternal grandparents’ residence every alternate weekend.
26.02.06
Altercation between mother and paternal grandfather at changeover.
25.08.06
Mother causes damage to maternal grandmother’s residence and altercation occurs with maternal grandfather in [A]’s presence.
08.10.06
Mother texts father and requests clean syringe. Mother evicted from rental accommodation. Department of Child Safety intervenes and mother signs consent order pursuant to which [A] placed with maternal grandmother for seven weeks.
18.12.06
Father makes Application for Lives With Order.
13.06.07
Independent Children’s Lawyer appointed.
The orders made on 14 April 2003 were varied by consent on 31 January 2006.
The parties’ proposals
In general terms, the father seeks orders that [A] live with him and spend time with the mother on alternate weekends, half the Christmas holidays and all the other school holidays. The father also seeks orders permitting him to take [A] outside Australia. The father is a
New Zealander and wishes to take [A] to spend time with his extended family in New Zealand.
The mother seeks orders that [A] continue to live with her and spend time with the father three weekends out of four or, alternatively, alternate Thursday nights or Friday mornings and alternate Thursday nights to Monday mornings and half of each of the school holidays. As an alternative, the mother proposes that [A] live with the father and spend with the mother three weekends out of four and half of each of the school holidays.
Issues in dispute
The father alleges that the mother has an ongoing involvement with drugs. He also asserts that the relationships she has had with other men evidence violence and physical abuse which [A] has, on occasion, witnessed. He also says that the mother has changed address with some frequency and has failed to settle down in one location. The father also says that he is unable to exercise telephone contact because the mother is abusive when he calls. There is also the incident on 26 February 2006 when a physical altercation occurred between the mother and the father’s parents. Competing versions of what happened that day are advanced by the parties.
The father also asserts that, in reality, [A] is being cared for not by the mother but by her parents. Even so, the father recounted an event on
25 August 2006 when he says the mother had had a violent altercation with her stepfather apparently arising out of an event involving [A].
The father says that the home he can provide, being at his parent’s home, will be preferable to [A]’s current environment and that he, the father, would enjoy considerable support from his parents in the care of [A]. [A] would enrol in the nearby primary school and he would also be involved in a local Maori education centre to teach him Maori culture and language.
The mother says that she has always been primarily responsible for caring for [A] and when unable to do so can rely on the assistance of her own mother. She says that [A] is happily settled in a nearby primary school, although he has shown aggression as a means of expressing his anxiety about where he is to live. The mother says that between the making of final orders in 2003 until 2006 the father spent little of the time permitted to him with [A], who would spend that time with his paternal grandparents. The mother says that the father did not use his telephone communication time with [A] on Saturdays. The mother says that both she and the father were intravenous users of “speed” but that she ceased this use some time ago.
The mother’s position is that there has not been a sufficient change of circumstances to warrant the Court re-opening this matter, final orders having been made in 2003 and amended by consent in January 2006. The mother says that her residential situation has stabilised and she has now been living at the same address since November 2006. She further says that a move would be unnecessarily disruptive for [A] and that, were [A] to live with his father, the father would be heavily reliant on the paternal grandparents’ assistance to care for the child.
The mother also deposes to significant hostility and antagonism towards her on the part of the father’s parents. She gave evidence of being viciously attacked by the parental grandfather on 26 February 2006, and although the grandfather was present at Court during the hearing, he gave no evidence. I infer that any evidence he could have given would not have been helpful to the applicant’s case.
The mother is concerned that her relationship with [A] would be strained if he went to live in the paternal grandfather’s household on a full time basis. Part of this arises out of her concern that the paternal grandparents, who have more money than she, are in a position to be more generous to [A] with material possessions.
Rice & Asplund
In this case final orders were made in 2003 which were amended by consent in 2006. It should be noted that no full hearing took place at which all the evidence and issues might have been heard, ventilated and considered.
It might be thought that the absence of a final hearing should diminish the effect of the rule in Rice & Asplund (1978) 6 Fam LR 570: that the Court should not lightly entertain an application to reverse an earlier custody order and would need to be satisfied that there was some changed circumstances justifying such a serious step, some new factor arising or at least some factor which was not disclosed at a previous hearing and which would have been material. In In the marriage of F & N (1987) 11 Fam LR 664 at 666 Nygh J, with whom Evatt CJ and Burton J agreed, said:
Rice and Asplund in fact makes the point that this 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.
Generally speaking, a court should as a matter of practice not assume such jurisdiction unless there is a change of circumstances has occurred since the last determination.
However, his Honour’s paraphrasing of the rule in Rice & Asplund was not entirely correct. What the Full Court of the Family Court relevantly said in Rice & Asplund at 572 was:
Therefore, the court would need to be satisfied by the applicant that, to quote Barber J, 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 ... These are not necessarily matters for a preliminary submission, but they are matters that the judge should consider in his reasons for decision. It is a question of finding that there are circumstances which require the court to consider afresh how the welfare of the child should best be served. These principles apply whether the original order is made by consent or after a contested hearing.
In this case the orders were made essentially by consent. Clearly it is the orders which are the important factor to consider. As Evatt CJ said in Rice & Asplund at 572:
[The Court] should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for, as Mr Broun submitted, change is an ever present factor in human affairs.
When considering whether or not it is appropriate to reconsider orders previously made, regard should be had to what the Full Court of the Family Court said in Saad & Saad (1993) FLC 92-332 at page 79,519:
(2) Whilst s.64(7) of the Family Law Act 1975 (“the Act”) gives this Court, in its original jurisdiction, the power to discharge or vary an order made under s.64 (i.e. an order made in proceedings in relation to the custody, guardianship or welfare of, or access to, a child – see s.64(1)), that power is not at large in the sense of empowering one Judge exercising the original jurisdiction of the Court to vary or discharge an order made by another Judge in the exercise of that jurisdiction merely because he or she disagrees with it or finds its effects unpalatable. On the contrary, a Judge asked to vary or discharge an earlier order of the Court under that sub-section may do so only if he or she is satisfied that it should now be varied or discharged having regard to any changed circumstances or new circumstances which have arisen since the making of the earlier order and to the welfare of the child which, by s.64(1)(a) of the Act, the Court is required to regard as the paramount consideration in any such proceedings.
There must be an end to litigation, no less in parenting disputes as in other proceedings, hence there must be a change in circumstances subsequent to the making of parenting orders of sufficient significance before the Court will reopen such issues.
In this case the matters which the applicant father relies upon as amounting to such circumstances are:
a)[A] being the subject of a voluntary assessment order suggesting that the mother was not capable of caring for him;
b)a charge of possession of cannabis and smoking utensils;
c)the father also makes reference to the following events:
i)26 February 2006, an incident concerning the maternal grandparents;
ii)27 February 2006, the mother punching another person in the head;
iii)13 August 2006, the mother threatens to hit a car with a hammer;
iv)25 August 2006, damage caused at the maternal grandmother’s residence;
v)13 September 2006, a physical altercation;
vi)8 November 2006, an SMS regarding clean syringes; and
d)[A]’s absences from school.
The father submits that the mother is not protecting [A] from the psychological harm of being exposed to abuse, neglect and family violence. I do not agree.
The mother’s life at the time of the original orders and at the time the orders were varied by the Court seems to have been chaotic and unsavoury. She made some very bad decisions and choices. However, far from following on a path of deteriorating behaviour I conclude that she has gone some way to getting some order in her life. The police records produced on subpoena bear this out, in particular, her criminal history shows a clean slate in recent times in terms of convictions, although I do not ignore recent charges concerning cannabis possession and possession of utensils.
Clearly, life is still a struggle for the mother and I accept that she has recently used and been charged with possession of cannabis.
She has admitted to use, and on the night in question (being the night before the proposed first day of hearing in these proceedings earlier this month) her mother, whom I found to be an impressive witness if not certain on dates, found her to be showing no signs of being affected by her admitted cannabis use.
The writer of the Family Report, Ms Rees, sat in Court to hear the mother’s evidence and subsequently gave evidence herself. She was able to hear the close and detailed cross-examination of the mother by the counsel for the father and to consider the mother’s responses. Notwithstanding the painful ventilation of the mother’s history of errors and poor judgment in her earlier years, Ms Rees noted that, if anything, the mother’s situation and thus the environment in which [A] has been living of late has been improving, particularly by getting some stability in terms of residence and the absence of violence which had previously been caused by the mother’s poor choice of partners.
Ms Rees did not place great emphasis on the mother’s recent cannabis use if it had no effect on her parenting ability. In this regard the report of the Police Child Protection Unit following the search on 10 April 2008 is revealing (Exhibit ICL1). One of the documents forming part of that report said:
Police also spoke briefly with the Victim Child, when he returned home with his grandmother from buying dinner. The Victim Child engaged well with police. The Victim Child did not appear to be under the influence of drugs.
There is no evidence to substantiate the anonymous allegations [that the child had been administered drugs by the mother] regarding the child.
…
Police hold no fears for the Victim Child.
As already recorded, the mother admitted to having smoked marijuana the night before the previously scheduled hearing in this matter earlier this month. Moreover, as I have already noted, the maternal grandmother attended her home that night and did not discern her to be under the influence of any drug.
Ms Rees did express concern at the re-emergence of cannabis in the mother’s life but she said that in isolation, possession and use of cannabis was not a reason to interfere with [A]’s relationship with his maternal family. This was in circumstances where Ms Rees found that [A]’s primary attachment is to his maternal family. In terms of whether there had been a change of circumstances, Ms Rees’ evidence was that things were improving and were improving for [A] also.
In this regard, much turns on whether I accept the mother’s evidence, particularly in relation to those aspects of it which touched on the current and recent events and conditions. I should say at this point that I do. The mother was confused in relation to some details of her history and, given the life she had, I am not surprised. Moreover, not all her answers demonstrated the sort of precision which would have put her case in its best light. I also conclude that she sought to minimise the more egregious aspects of her conduct and experiences and I think she was not truthful in relation to the SMS. However, the latter was an isolated matter and the other issues I have referred to did not, in my view, undermine the impression I gained of her as an otherwise truthful witness.
In particular I accept that she now has a much more mature attitude to life and appreciation of her responsibilities to [A]. In this connection it should be noted that, as counsel for the independent children’s lawyer put it, she was only a child when [A] was born. She was an adolescent during his early years and is now an adult. I accept her evidence concerning her contemporary life and her care of [A].
Returning to the question of changed circumstances; the only thing which has changed substantially since January 2006 it would seem, is the father’s ostensible desire to be involved in his child’s life and to provide more to him, particularly in terms of his Maori heritage, than he was interested in doing previously. Such desires come late. They should have been expressed and pursued when the parenting orders were originally made. Had the father objected to the orders made in his absence he could and should have applied at the time to the Court to have them set aside. He did not do this.
Conclusion
In my view, sufficient circumstances have not been shown that the Court should reconsider the parenting orders made by consent in 2006. Consequently, except to the extent that amendments may be made to the January 2006 orders by consent of the parties, the application will be dismissed and the orders sought in the amended response will be refused.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 19 June 2008
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