Sackett and Lawlor
[2010] FMCAfam 1329
•29 September 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SACKETT & LAWLOR | [2010] FMCAfam 1329 |
| FAMILY LAW – Parenting – application to re-open parenting proceedings – Rice v Asplund argument – leave granted. |
| Family Law Act 1975, ss.60CC(2), (3) & (4) |
| Rice v Asplund (1979) FLC 90-725 King & Finneran (2001) FLC 93-079 CDJ v VAJ (1998) FLC 92-828 The Marriage of D v Y (1995) FLC 92-581 MRR & GR [2010] HCA 4 |
| Applicant: | MS SACKETT |
| Respondent: | MR LAWLOR |
| File Number: | MLC 7284 of 2008 |
| Judgment of: | Henderson FM |
| Hearing date: | 28 September 2010 |
| Date of Last Submission: | 28 September 2010 |
| Delivered at: | Albury |
| Delivered on: | 29 September 2010 |
REPRESENTATION
| Counsel for the Applicant: | Ms Boyle |
| Solicitors for the Applicant: | Skinner & Associates |
| Counsel for the Respondent: | Ms Wheeler |
| Solicitors for the Respondent: | Septimus Jones & Lee |
ORDERS
Leave is granted to the mother to re-open the parenting proceedings.
The matter be adjourned to 1 October 2010 at 9:30am for mention to determine the future progress of the matter.
IT IS NOTED that publication of this judgment under the pseudonym Sackett & Lawlor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ALBURY |
MLC 7284 of 2008
| MS SACKETT |
Applicant
And
| MR LAWLOR |
Respondent
REASONS FOR JUDGMENT
In the matter of Sackett & Lawlor, the mother’s application was to reopen the parenting matter which had been determined by orders made 3 October 2008 after a contested hearing before Bender FM. The hearing took place in September 2008. The mother’s application in 2008 was to remove herself, but most importantly the parties’ children, [W] born [in] 2004 and [X] born [in] 2006, from Melbourne to [D] where she intended to live with her now husband.
The mother was successful in that application, in that she was permitted to remove the children to [D] within 12 months of the judgment having been delivered and, indeed, that is what the mother did.
Thus this matter today is effectively a Rice & Asplund (1979) FLC 90-725 threshold argument.
Ms Boyle of Counsel appeared for the applicant mother and
Ms Wheeler of Counsel appeared for the respondent father.
The short relevant facts are as follows:
There are two children, [W], born [in] 2004, and [X], born [in] 2006.
Both the mother and the father have re-partnered since those orders were made on 3 October 2008.
The mother relocated to [D] in 2009 to live with her now husband. The mother has a new son with her husband, [Z], born [in] 2009.
The father’s has re-partnered. His partner has a daughter, aged six. When the father re- partnered he went to live in his partner’s home. The consequences of that move will be further referred to.
The father moved from the rental accommodation he was in at the time of the 2008 hearing in [T] Melbourne, to [M] another suburb in the Melbourne metropolitan area. [M] is both further south and east of [T], and further south from the end of the [omitted] Highway where it connects with the Melbourne metropolitan area.
Since [Z]’s birth, the father, very much to his credit, had agreed to meet the mother’s husband at [H] for changeover. [H] is at the end of the [omitted] Highway. That trip takes between 3 to 3.5 hours one way from [D]. The children spend alternate weekends with their father by order from 5pm Friday until 5pm Sunday, extending to Monday on a long weekend.
These parents, as well as their respective partners, have ensured that the children spend time with their father in accordance with the orders, and are otherwise committed parents. There are no issues of poor behaviour, violence, drugs, alcohol, or any other matter of concern for parental capacity. These children are fortunate, indeed.
The orders do not specify where in Melbourne the parties are to meet to effect changeover. Order 8 of the orders states:
The Wife shall be responsible for all travel associated with the children spending time with the Husband in Melbourne, and the Husband shall be responsible for all travel associated with spending time with the children in [D].
The orders also provide that the father may spend time with the children in [D], in addition to his alternate weekend, holiday time, and the like by giving notice.
Order 4(a) gives a definition of Melbourne:
4. Whilst the children reside in [D], they shall live with the Husband as follows:
(a) each alternate weekend from 5.00 pm Friday until 5.00 pm Sunday, or 5.00 pm Monday if it is a long weekend or school curriculum day, being the first and third weekends in a four week cycle, in the Melbourne Metropolitan area or such other location as agreed between the parties;
[H] has been an agreed changeover location since, perhaps, even before [Z]’s birth.
Ms Wheeler submitted on behalf of the father that from a reading of the judgment, the transcript and the orders, it is clear that Bender FM made a decision that upon relocation to [D], the mother would be responsible for all travel associated with the children spending time with their father in the Melbourne metropolitan area.
It was submitted that the fact that the father has now moved to [M], a distance which lengthens the children’s trip, depending on whether it is peak hour or non-peak hour, that is 5pm or after 7pm, by anywhere between two and three hours a round trip or 45 minutes to 1.5 hours one way is still the father acting within his obligations under the order as he is living in the Melbourne metropolitan area. Thus he opposes the case being reopened.
Ms Boyle submitted on behalf of the mother that there were sufficient changes in the circumstances of the parties and the children for the matter to be re-opened.
The evidence that I read at the hearing was:
For the mother:
a)The mother’s application and her affidavit filed 1 July 2010;
b)Mother’s Exhibit 1: The mother’s amended minute of orders, which was to vary both the time and place of pick and delivery of the children to their father. The mother sought for the children’s time with the father to commence at 7pm on a Friday and changeover to occur at the McDonald’s, [H] on both occasions unless otherwise agreed. There were some other minor amendments that she sought, but they are the substantiative amendments.
c)Mother’s Exhibit 2: A whereis.com print-off from the Internet showing the relative positions of [H], [T] where the father used to live, and [M] where he now lives.
d)Mother’s Exhibit 3: Another whereis.com document from the Internet showing the route that is taken from when the children and mother leave the [omitted] Highway and thread their way through Melbourne to reach the father’s home at [M].
For the father:
a)The father’s response and affidavit filed 13 August 2010.
I have read the judgment and orders of Bender FM together with parts of the transcript that I was taken to.
As I have said, this is a threshold question. In this jurisdiction a Court is loath to reopen a hearing concerning children. It is a tenet of family law that multiple litigation involving children is not in their best interest. Thus the law surrounding a threshold test has grown over time and is well settled.
The father says that there is no need to reopen the case and revisit the orders made. He says the orders are clear. The children are spending time with him. The mother is not really requiring a significant change or seeking to diminishing time they spend with him or increasing that time. There has been no significant change in any of the parties’ circumstances nor is there any factor in existence that would result in a significant change in the children’s circumstances which would have such an impact upon their welfare that a Court would reopen a parenting case adjudicated only two years ago.
He says the operation of the orders are that the mother collect and deliver the children to him at 5.00pm at his home in [M].
It is clear to me, and it is the law, that the mother has the burden of proof in satisfying me that that I ought to exercise my discretion to reopen the case.
The well-settled case law starts off with Rice v Asplund (1979) FLC 90-725, and I will refer to the Rice & Asplund principle.
It has been more recently and comprehensively dealt with by Collier J in a matter called King & Finneran (2001) FLC 93-079. That decision was an appeal from, as she was then, Ryan FM’s decision not to permit a father to reopen the parenting case which had been determined to finality by Moore J within 12 months. The father sought, in that case, some additional time with his children during the week, and three or four extra days a year, and the delivery of photographs.
Collier J said at paragraph 36 of his Judgment:
The husband argued that in the hearing of the matter before the learned Magistrate the welfare of the children was the paramount consideration. This is clearly so. The husband made reference to CDJ v VAJ (1998) FLC 92-828. In that case their Honours of the High Court looked at the paramountcy principle. Their Honours Justices McHugh, Gummow and Callinan found in paragraph 87 that the Full court had found that an order admitting or rejecting further evidence was not a parenting order within the terms of section 64 (as it then was). Their Honour in the Full Court were satisfied that such an order did not directly invoke the application of the paramountcy principle. Their Honours in the High Court found that in an appeal in which the upholding, varying or setting aside of a parenting order is the ultimate matter in issue, the principles which govern the resolution of that issue are the same for the Full Court as they are for the judge at first instance. Consequently, the Full Court is bound to have regard to the best interests of the child as the paramount consideration when determining the appeal.
That is the principle. The paramount consideration is the best interests of the child.
Reading from paragraph 44, his Honour Collier J says:
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 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.
This is a most important principle and germane in this matter. I must assess what I call the consequences of the continued carrying out of the existing orders. It is clear to me from paragraph 44 of his Honour’s judgment that this principal is an implicit part of any decision and most important in the exercise of my discretion.
His Honour continued in paragraph 44:
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.
At paragraph 49 his Honour goes on to say, in terms of the definition of substantial and significant that:
Clearly, both words 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.
Those words, significant and substantial, have been further refined and different words used. At paragraph 50 in the decision in The Marriage of D v Y (1995) FLC 92-581 the Court used the phrase “strong grounds”.
Thus it is not a strict dictionary definition that I must consider. It is as Ms Boyle submitted the reality of the situation for the children and parents ultimately that is extremely important.
Although it is not perhaps strictly relevant, the High Court’s decision in MRR & GR [2010] HCA 4 that practicality, the practical operation of orders, the practical issues of how the orders will operate, and the consequences for the children in a practical sense of the orders are all matters to be taken into account when considering the factors under section 60CC (2), (3), and (4).
The strong grounds, the significant and substantial changes or factors, and the practical operation of the orders are all matters relevant in exercising my discretion.
As Collier J says, at paragraph 50:
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.
At paragraph 64, his Honour talks of how the Court applies the test if the changes being sought are minor changes. That is certainly the position the father took at this hearing. The changes the mother was putting forward to the orders were of a minor nature.
His Honour says, at paragraph 64:
Simply because the changes sought by the appellant are of a minor nature the threshold test is not reduced. Indeed, the less important or far reaching the change or alteration to orders that is sought to be achieved is, perhaps the more important it is to demonstrate a change of circumstances or fresh circumstances requiring a further hearing to achieve this result.
His Honour found that Ryan FM, as she then was had applied the correct law and principles and it was thus open to her to have exercised her discretion to refuse the husband’s leave to reopen the matter.
So what are the changes the mother seeks?
The mother is seeking to define drop off and pick up with certainty rather than, as the orders provide, the Melbourne metropolitan area. She is asking for a further refinement and clarity of her responsibility for all travel associated with the children spending time with their father within the Melbourne metropolitan area be made.
The mother is also seeking to vary the time of drop off to obviate [W] leaving school early each alternate Friday. [W] leaves school early each alternate Friday to make the 5pm changeover at [H] a 3 to 3.5 hour trip .This will affect [X] when he attends formal education.
If the mother is to travel to [M], [W] will be leaving school well before lunch time and perhaps as early 11.30 or 12.00pm to be ready to leave [D] at 12 or 12.30 pm to make the 4 at best or 5 at worst hour trip from [D] to [M] and arrive at 5.00pm.
When this decision was made in 2008, neither of the children was in formal education. [W] is now in her first year of school and [X] will shortly follow.
Looking at the changes the mother seeks. At first blush they appear as minor changes. However, to ascertain whether the changes are minor I must have regard to the consequences of the existing orders continuing. That is, what does it mean in reality for the children of the current orders continuing.
The father says the mother’s application operates as a de facto appeal as travel was canvassed at the final hearing. The Federal Magistrate made an order that the mother was to be totally responsible for all travel associated with the children spending time with their father in Melbourne. The father further says the mother agreed at the final hearing that travel of three to three and a half hour trip one way was more than do-able for their children, they were good travellers used to travelling, and she could facilitate this.
As the father is still living in the Melbourne metropolitan area the mother is obliged to deliver the children to him at his home even if this results in longer travel for the mother and children.
Further whether the parents meet halfway or not the children still have to do the extra travel.
Thus the father says very little has changed today from what was operating on her Honour’s mind in 2008 in relation to travel time.
Secondly, the father says the mother offered, and agreed at the hearing, that [W] would leave school early on a Friday in order to facilitate the 5pm changeover in the Melbourne metropolitan area. Therefore, as this issue was dealt with at the final hearing, there is no change in circumstances and, perhaps more importantly from the father’s point of view, no significant change or fresh evidence which would cause this court to exercise its discretion to reopen the parenting case.
This matter is finely balanced as these are two good parents and the children are spending time with their father, as they should. As Collier J says in King & Finneran, the matter is one for the exercise of my discretion.
The argument raised by the father, through Ms Wheeler, that he was entitled to the fruits of his judgment do not sway me when my clear obligation is to consider matters from the children’s best interests, and that their best interests is my paramount consideration. Fruits of judgement have little bearing on my obligation.
The change of time for collection and pick up and the change of place of collection and pick up may seem minor. However the consequences for the children of not reopening the parenting matter are as follows.
[W] will continue to miss Friday afternoon school each alternate week until she leaves school. She has just started school and there is
11 years to continue. For [X] there is 13 years.
The children will be leaving school far earlier each alternate Friday afternoon than at present.
The present journey to [H] is 3 to 3.5 hours. The father agrees the additional time for the mother to deliver the children to his home will add at peak hour ie 5.00pm at least 1 hour and likely 1.5 hours from where the children are currently exchanged. He agrees in non peak hour ie after 7.00pm maybe 45 minutes to the current trip.
Thus it is likely that the additional travel time will be 1.5 hours on Friday as the time for delivery is 5.00pm right on peak hour.
For the mother to comply with the orders the children will have to leave [D] at 12 to 12.30 and school as early as 11.30 just after recess.
Further the operation of the orders permit the father to move within the Melbourne metropolitan area and he is able to move even further south than at present and still the mother has the obligation to have the children to him by 5.00pm. That is but one consequence of the operation of the orders.
As I see it the operation of the orders made by my sister, Bender FM, are not orders in the children’s best interests. The children best interests are not the paramount consideration when the orders are put to the practical real test. I find this to be the case if for no other reason than that they are not practical in the long term as they require [W] now, and [X] shortly, to miss almost two full days not just afternoons of school twice a month to enable the mother to comply with her obligation to have the children to the father by 5.00pm.
The father has moved further south than he was at the time of the hearing. The consequence of that move being the additional time travelled by the children and the consequent significant and regular time missed by the children from school each alternate Friday was not contemplated nor referred to in the hearing before Bender FM.
Even if the change in travel in peak hour is only one additional hour the consequence of that hour results in a significant change in the child’s attendance at school and her most important education
Neither parent ever contemplated that the consequence of the order of 2008 would result in such a significant absence regularly from school. Such an increase in absence for a child from with the possibility of even longer absences if the father as he can moves further south is a significant and substantial change in the circumstances of a child’s living situation and which may have a negative impact upon that child.
I find the mother has satisfied me that the changed circumstances, being the father’s move of residence further south in the Melbourne metropolitan area from where the children live, will result in [W] missing more time from school than was ever contemplated at the hearing in 2008. The mother’s evidence at the hearing was clear the one way trip to the Melbourne metropolitan area to deliver the children to the father is now between three and three and half hours. If the orders are to be enforced it will be between four and possibly up to 5 hours. The trip on Friday is carried out in peak hour. In all probability the current time will be lengthened by 1.5 hours from the longest trip contemplated in the judgement of 3.5 hours.
There is a significant difference in a trip of 3.5 hours at worst and
5 hours at worst. That is a significant and substantial change as contemplated in the King v Finneran.
As the child’s best interests is my paramount consideration, I must reopen litigation in the absence of the parents’ capacity to vary the orders as to time and place of collection.
I have made this decision after much deliberation. The basis of my decision is that the orders made were not based primarily upon what was best for the children in terms of collection and delivery both as to place and time and who had the obligation to do what, but rather more to making the mother pay a higher cost to achieve her desire to remove the children from Melbourne and, effectively, their father. If I am correct in my assessment then in so doing as the children’s best interests were not the paramount consideration given that the children live primarily with their mother, it was inevitable that the operation of the orders, in reality, would not be in the children’s best interests. If their mother is paying a higher price for her decision to remove herself, as night follows day, so will the children.
Therefore, I make the Orders as set out at the commencement of this decision.
I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of Henderson FM
Date: 1 December 2010
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