S and C
[2003] FMCAfam 417
•11 September 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| S & C | [2003] FMCAfam 417 |
| FAMILY LAW – Children – contact – change of circumstances – whether test in Rice & Asplund (1978) 6 Fam LR 570; (1979) FLC 90-215 met – family violence allegations – separate representation PRACTICE AND PROCEDURE – Whether proceedings should be transferred back to the Family Court |
| Applicant: | R J S |
| Respondent: | J L C |
| File No: | PAM 3354 of 2003 |
| Delivered on: | 11 September 2003 |
| Delivered at: | Parramatta |
| Hearing date: | 8 September 2003 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Counsel for the Applicant: | Ms Clifford |
| Solicitors for the Applicant: | Barkus Edwards Doolan |
| Solicitors for the Respondent: | Ms Vincent Watts McCray |
ORDERS
Pursuant to section 68L of the Family Law Act the children of the marriage B J C born 9 May 1995 and N R C born 25 March 1997 are to be separately represented AND the Legal Aid Commission of New South Wales is requested to arrange such representation.
The proceedings are transferred to the Family Court of Australia at Parramatta AND it is requested that the proceedings be listed before a Deputy Registrar of the Family Court at 9.45 am on Thursday 2 October 2003 for directions.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMTTA |
PAM 3354 of 2003
| R J S |
Applicant
And
| J L C |
Respondent
REASONS FOR JUDGMENT
Application
The application before the Court is an application by the mother of two little boys, B J C who was born on 9 May 1995 and is therefore aged 8; and N R C, who was born on 25 March 1997 and is therefore aged 6. Her application is to vary the terms of contact orders made by Stevenson J in the Family Court on 2 May this year. The orders were made after a defended hearing and the evidence as I understand it was heard during the month of January. The thrust of this application is that the orders made by her Honour concerning the father's contact with the children or children's residence with the father be varied so as to reduce the amount of time that the children spend with their father on alternate weekends. The orders also provide for a change as far as arrangements for contact handover are concerned.
The father opposes these orders. When the matter came before the Court on Monday, his solicitor, Ms Vincent, made applications first to the effect that the proceedings should be transferred back to the Family Court where the earlier proceedings had been heard. And also, that the application should be dismissed in that what is known as the test in Rice v Asplund (1978) 6 FamLR 570, 1979 FLC 90-215 had not been met.
The principles that are described as the test in Rice v Asplund form a particular class of law which is perhaps a sub-class of the principles that apply to summary dismissal of applications. There are of course principles relating to summary dismissal of applications and Ms Clifford of counsel who appeared for the mother on Monday referred me to the judgment of Kirby J in Linden v Commonwealth (No.2) (1996) 136 ALR 251 where his Honour said at pages 255 - 6:
“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 of Linden sets out a number of matters to which a Court must consider in summary dismissal applications generally. The Full Court of the Family Court has in a series of judgments placed residence, formally 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 lightly entertain an application to reverse an earlier residence order. In the decision of Hayman (1976) FLC 90-140 the Full Court considered with approval the decision of the Court in McManus13 FLR 449 and an unreported decision of Barber J in the Supreme Court of Victoria in the matter of Gilder which was handed down on 17 February 1967.
The principles set out in those cases were continued in the well known decision of the Full Court in Rice v Asplund. In that case it was held that:
The Court should have regard to any earlier material 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 invite endless litigation for change is an ever present factor in human affairs. Therefore the Court would need to be satisfied 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.
This decision was followed in the recent case of King v Finneran (2001) FLC 93-079 which was an appeal from a decision of a Federal Magistrate. 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.
In Nicholson v Martin (2003) FMCAfam 29, a decision delivered earlier this year, I held that the principles derived from the authorities appear to be:
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 relitigated. (See Rice v Asplund, (supra), see also King v Finneran (supra));
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 (1987) 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 full hearing. (See Bennett (1990) 14 FamLR 397, (1991) FLC 92-191; see also D v Y (1995) FLC 92-581);
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 (supra), and D v Y (supra);
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 is the evidence available at the time the circumstances are considered by the Court. (Again, see King v Finneran (supra at page 88,367)).
I would add to those principles that the evidence of changed circumstances required to persuade a Court that contact orders need to be reconsidered would not normally be as weighty as that required to reopen the question of the children's residence. The length of time that has passed since the earlier orders were made will usually be a relevant factor.
Bearing those principles in mind, what matters are relied upon by the mother to reopen parenting orders which were made an recently as 2 May? Parenting orders I would comment, that were made as a result of a defending hearing. There are five matters referred to by the mother and they are neatly summarised in a notice of child abuse or at risk of child abuse which has been filed in these proceedings. The five matters referred to are these:
a)On or around 16 June 2003 the child B complained to his mother that the father had picked him up by the arms and had thrown him and had thrown him to the ground.
b)On 23 June 2003 the child B complained to his mother that on that date his father threw him to the ground and into the wall. The younger child N also said to his mother that the father had thrown him before.
c)On 12 August 2003 B complained to his mother that his father had picked him up and thrown him to the floor near the bathroom.
d)Both children had complained to their mother that the father is verbally abusive to them and further, as far as risk of abuse, had said that on the weekend of 28 and 29 June 2003 the father picked up a crockery fruit bowl and in the presence of the children threw it across the room, whereupon it smashed.
It is those matters that are relied upon by the applicant as constituting the changed circumstances which justify reopening the parenting matters.
Those matters are set out in the mother's affidavit and the father has also filed an affidavit in which he denies those allegations. I have had the opportunity of perusing the judgment of Stevenson J and there was also submitted to me, quite properly, an affidavit by the applicant in these proceedings which was filed in the Family Court proceedings back on 27 November 2002.
It is appropriate that I should look at those matters because, as was said in Rice v Asplund and I have already quoted, the Court should have regard to any earlier order and to the reasons for and the material on which that order was based. It is appropriate in an examination of this nature to consider whether these matters have already been the subject of consideration by the Family Court.
Ms Vincent for the father submits that these issues are not new, that these are a continuation of issues that were deliberated upon in the proceedings in the Family Court. There is certainly evidence that the father had suffered from a depressive illness, there were allegations of his abuse of alcohol and there were allegations of behaviour which would cause concern and it is said did cause concern, both to the mother and the children. There were certainly allegations that the father had been verbally abusive, both to the mother and the children. The complaints of the children to the mother that their father had been verbally abusive can easily be seen as a continuation of matters that had already been dealt with by the Court. The behaviour by the father that is complained of, the breaking of the fruit bowl which is not denied, can also be characterised in this way.
Ms Vincent for the father also referred the Court to the strength of the allegations and indicated that the child B in particular had a history of acting out behaviour, had a history of behaviour of drawing attention to himself, and the allegations coming from B and N being for the large part uncorroborated would not, in her view, represent a strong case, certainly not a case strong enough to warrant the reopening of matters that had so recently been decided.
My attention was also drawn to the passage in the judgment of her Honour where the mother's proposals in the earlier proceedings relating to contact, in the light of her plans at the time to relocate to B, was shown; and indeed, the proposals referred to on that occasion in her Honour's judgment are not dissimilar to the proposals for contact that the mother's application would now have. There is always a suspicion in early applications to vary orders made by another Court, or by this Court for that matter, that the proceedings are a form of de facto appeal and that a variation is sought to bring about orders which are more in line with the ones that the party would have preferred the Court to make in the original application.
It can easily be seen why it is that their Honours as long ago as the decision in Rice v Asplund formed the view that a Court must look very seriously at what was before the earlier Court. There is certainly some force to the argument by Ms Vincent that the evidence sought to be relied on is not particularly weighty. Although, as Ms Clifford of counsel reminded me in the quote from the decision of Kirby J in Linden v Commonwealth, in ordinary summary dismissal matters an opinion of the Court the case appears weak and is unlikely to succeed is not alone sufficient to warrant termination.
Those are the matters that I have taken into account. However, on viewing all of the material I could not find any specific reference either in the mother's extensive affidavit sworn 20 November and filed on
27 November in the Family Court or in her Honour's detailed reasons for judgment, of allegations of actual violence by the father. There are three allegations of the father picking the boy B up and either throwing him to the ground or throwing him into the wall. Those are said to have happened on 16 June, 23 June and 12 August; all of them incidents said to have happened after the judgment was handed down.
These are matters which to my mind do justify an investigation. I have said in earlier proceedings, and there is nothing particularly original I hastened to add, that allegations of child abuse should not be made lightly. If they are made, the Court has an obligation to take things seriously. It is the three allegations of the violent behaviour towards the child B that cause me concern. I would comment that the orders sought in the mother's application do not, with respect, seem to me to be a sufficient answer to the mischief sought to be guarded against. The argument that the father is subject to stress and reacts badly to stress and the longer the children are with him the more stressed his gets is an argument I think that would need to be the subject of some fairly extensive evidence and examination by a Court before it would be readily be accepted.
But it is those allegations of violence that cause me sufficient concern that I do not consider it appropriate to dismiss the application at this stage. Where there are allegations of abuse, one procedure which is impressed on Courts exercising the jurisdiction under the Family Law Act is the appointment of a separate representative and it appears to me appropriate that I should order that the children be legally represented in these proceedings.
I have also indicated as a result of the other application that
Ms Vincent made, which was an application that I transfer these proceedings back to the Family Court, that I would give consideration to that application once I had decided on the application as to whether the test in Rice v Asplund had been met. Of course, if I had upheld the submission that the proceedings should not be reopened, then of course there would have been no point. But as I have not upheld that submission, I do consider that it is appropriate that this matter goes back to the Family Court. It is a matter that has been litigated at some length in the Family Court on a defended basis before a Judge of that Court, as recently as this year. January were the dates of the hearing, and the judgment was handed down in May. I am of the view that the appropriate venue for these proceedings is the Family Court and I see no reason why a child representative should not be able to provide the same service to the Family Court as the child representative can provide to this Court.
The orders that I make therefore are those set out at the commencement of these reasons.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S. Polley
Date: 17 September 2003