S and J - [2003] FMCAfam 193

FEDERAL MAGISTRATES COURT OF AUSTRALIA

S & J

[2003] FMCAfam 193

FAMILY LAW – Children – residence – application to vary existing orders – test in Rice and Asplund (1979) FLC 90-725 applied – best interests of child paramount consideration – orders made by consent eight months previously – allegation that father has not had contact since orders made – no contravention proceedings brought.

Family Law Act 1975, ss.60B, 65E, 68F, 117

Australian Building Industries Pty Ltd v Stramit Corporation Ltd [1977] FCA 1318

Lindon v Commonwealth (No.2) (1996) 136 ALR 251
Rice & Asplund (1978) 6 Fam LR 570; (1979) FLC 90-725
Bennett (1990) 14 Fam LR 570; (1979) FLC 92-191
King & Finneran (2001) FLC 93-079
D and Y (1995) FLC 92-851
Hayman (1976) FLC 90-140
Freeman (1987) FLC 91-857

Applicant:

B W S

Respondent:

W M J

File No:

PAM 1817 of 2002

Delivered on:

28 May 2003

Delivered at:

Parramatta

Hearing date:

26 May 2003

Judgment of:

Scarlett FM

REPRESENTATION

Solicitors for the Applicant:

Mr Speirs – Sydney Regional Aboriginal Corp Legal Service

Counsel for the Respondent:

Mr Allen

Solicitors for the Respondent:

Burston, Cole & Co

ORDERS

The Application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

PAM 1817 of 2002

B W S

Applicant

And

W M J

Respondent

REASONS FOR JUDGMENT

Application

This is an application by the father of a child called M J S for an order that the child should reside with him. For such an order to be made, the residence order made by this Court on 30^th September 2002 would need to be discharged.
The mother, in her Response filed on 17^th March 2003, asks that the father’s application should be summarily dismissed.

Background

The father was born on 10^th January 1945 and the mother was born on 12^th March 1965. They commenced their relationship in 1997, and their daughter M was born on 19^th January 2000. The parties separated on 17^th January 2002.
The mother commenced proceedings in the Local Court of New South Wales at P on 21^st January 2002 seeking an order for the residence of the child. The father filed a Response on 14^th March 2002 seeking orders for contact. Those proceedings were transferred to this Court. The parties attended counselling but the matter did not resolve. The matter was listed for final hearing at this Court on 30^th September 2002.
On the day of the final hearing, both parties were legally represented. The matter was settled on the basis that the child should reside with the mother and the father was to have contact each Monday and Friday from 9.00 am to 3.00 pm, on Father’s Day, and at Christmas. There were further orders made to cover the situation when the child started school.
It is common ground between the parties that the father has not had contact with the child since those orders were made. The parties are in dispute as to the reasons.
The mother has since married one J J and is pregnant to him, although they currently do not live together. The mother was living at P at the time the consent orders were made, but she has since left that address, and now resides in W.
The father commenced these current proceedings in the Local Court at P on 6^th January 2003. On 23^rd January the Local Court transferred these proceedings to this Court.
When the matter came before me on 26^th May 2003, it was on the basis that a threshold test would apply to the father’s application. I heard oral submissions from the lawyers for each party and I received a written submission from the mother’s counsel.

Principles to be applied

The Respondent seeks summary dismissal of the application. The Full Court of the Federal Court has held in Australian Building Industries Pty Ltd v Stramit Corporation Ltd [1977] FCA 1318 that:
“A proceeding should not be dismissed summarily merely on the ground that it appears at an early stage of the hearing of the motion brought for that purpose, to advance a highly implausible claim which will very probably fail.”
The matter has been considered in the judgment of Kirby J in

Lindon v Commonwealth (No. 2)
(1996) 136 ALR 251 at 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 a court.”
The Full Court of the Family Court has, in a series of judgments, placed residence (formerly custody) matters in what appears to me to be a special category, governed by the principle that a court should not lightly entertain an application to reverse an earlier residence order. In Hayman (1976) FLC 90-140, the Full court considered with approval the decisions of McManus 13 FLR 449 and an unreported decision of Barber J in the Supreme Court of Victoria in Gilder (17^th February 1967). In their joint judgment, Murray and Lusink JJ stated:
“Whilst it is true that custody is never final, it is not open to an unsuccessful party to return to Court repeatedly in the hope of obtaining a favourable order. It may be that circumstances have altered to such a degree that it is essential in the interests of the child that questions relating to custodial arrangements be

re-litigated. However, it is accepted that there must be real issues to be decided, issues which have arisen which have not been previously traversed.”[1]
[1] At 75, 679 and 75, 680
This principle was continued in the well-known decision of the Full Court in Rice & Asplund (1978) 6 Fam LR 570; (1979) FLC 90-725, where the Full Court held 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, 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.”
This matter was considered by the Full Court in Freeman (1987)

FLC 91-857, where there was an application to discharge a custody order that had been made by consent. The Full Court held that once a court had settled the question of custody, an order made should not be overturned unless sufficiently weighty new facts and circumstances were shown to exist which threw sufficient doubt on the desirability of continuing the custodial arrangements effected by the order. Those new facts and circumstances should be such as to necessitate a fresh investigation to safeguard the best interests of the children. Strauss J referred in his judgment to the fact that the matter sought to be

re-opened was one that had been concluded by consent orders.
“When that order was made the matter was about to be heard in the defended list. It was not a matter which was compromised at a time when the parties had not been able to give it full and proper consideration. Each party had filed a number of affidavits…A full welfare report had been prepared and had been made available to each of the parties. As the husband stated, he settled on counsel’s advice.”[2]
[2] At 76,470
His Honour went on to point out that “the alleged changes in circumstances were, in my view, no more than the kind of changes that often occur in the lives of people of the ages of these parties.”
In Bennett (1990) 14 Fam LR 397; (1991) FLC 92-191, the Full Court considered the question of whether this issue should be heard as a discrete threshold question or, as was suggested in Rice & Asplund, as a matter to be considered on a final basis:
“These are not necessarily matters for a preliminary submission, but they are matters that the judge should consider in his reasons for decision.”[3]
[3] Evatt CJ, at 78,905
The Full Court held in Bennett that it is a matter of discretion as to whether a Judge embarks upon a full hearing of a matter or determines the threshold question as to a change in circumstances. The Full Court referred to an unreported decision of the High Court in Lowe v Lowe
(6 April 1990), where the trial judge had dealt with threshold question as a preliminary matter and the High Court thought that it was within his discretion to do so.
In King and Finneran (2001) FLC 93-079, an appeal from the decision of a Federal Magistrate, Collier J held that 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. His Honour went on to deal with the way in which a court applies the required test:
“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 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.”[4]
[4] at 88,367
Collier J referred to the decision of the Full Court of the Family Court in D and Y (1995) FLC 92-581 where the discretion of the trial judge to deal with a change of circumstances as a preliminary issue or to proceed to a full hearing was affirmed. The Full Court held that, in circumstances where the issue of custody had been litigated on defended basis a little over two years previously, a judge would be extremely loath to reopen the issue of custody except on strong grounds.
“The change or fresh circumstances must be such that upon being advised 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 circumstances would result in a change to the orders. It merely indicates that the change or fresh circumstances must be such that if taken into account there is a real likelihood that a change may follow.”[5]
[5] at 88,368
The principles to be derived from these authorities would appear to be these:
a)The onus is on the applicant who seeks to reverse an earlier residence 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;
b)The principal 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;
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;
d)The change in circumstances must be sufficient to warrant a
re-examination of the issue of residence, 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; and
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.

Conclusions

In this case, the applicant relies on his affidavit, which was affirmed on 14^th April 2003. He deposes that the respondent has “made contact with M very difficult” and he alleges that the mother has taken up residence in L T P, which the mother denies. He refers to her history of abuse of alcohol and expresses a general view that the mother does not care properly for the child or her other children from a prior relationship. He also points out that the mother has been placed on a good behaviour bond for offences of assault and dishonesty, and she has lost her driver’s licence. He makes an assertion that the mother’s partner is a drug user who supplies drugs to other people.
Mr Speirs for the applicant submits that these are arguable issues, which should go to trial. The actual changes since the orders were made in September 2002 appear to be these:
f)the mother has married but separated from Mr J;
g)the mother has changed her home address from P to, apparently, W;
h)she has been placed on a good behaviour bond for driving a motor vehicle whilst her licence was cancelled; and
i)there has not been any contact.
The father has not at any time commenced contravention proceedings despite his allegation that the mother has not complied with the orders. The mother’s counsel, Mr Allen, has argued that “An application for residence may be grounded by a series of serious contraventions but the application in the circumstances of this case is manifestly premature and inadequate. If the mother relocated as alleged, then the appropriate application would be firstly to restrain her from relocating”. With respect, I agree. The orders were only made by consent as recently as the end of September last year, less than eight months ago. There has been no attempt to enforce them.
I am not satisfied that the applicant has shown that there have been changes sufficient to justify re-opening the question of residence which was resolved by consent on 30^th September last year. The application will be dismissed.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: S. Polley

Date: 30 May 2003