Savard and Savard

[2015] FCCA 3524

FEDERAL CIRCUIT COURT OF AUSTRALIA

SAVARD & SAVARD [2015] FCCA 3524

Catchwords:
FAMILY LAW – Parenting orders made 12 months ago – whether or not there has been a sufficient change of circumstances to justify changing the orders.

Legislation:

Family Law Act 1975, s.117(2A)(a)

Rice & Asplund (1979) FLC 90-725
SPS & PLS [2008] FamCAFC 16
Marsden & Winch [2009] FamCAFC 152

Applicant: MR SAVARD

Respondent: MS SAVARD

File Number: MLC 10503 of 2013

Judgment of: Judge Harland

Hearing date: 21 December 2015

Date of Last Submission: 21 December 2015

Delivered at: Melbourne

Delivered on: 21 December 2015

REPRESENTATION

Counsel for the Applicant: Ms Fisken

Solicitors for the Applicant: Pearce Webster Dugdales

Counsel for the Respondent: Ms Mik

Solicitors for the Respondent: Self-represented

ORDERS

1. All extant applications are dismissed.

2. The parties to the extent that it is necessary do all acts and things to re-enrol the child X born on (omitted) 2010 (“X”) at (omitted) Pre-School.

3. The mother is restrained from sending X to (omitted) Pre-School and from further changing either X’s preschool or primary school.

4. The orders made on 21 August 2014 will remain in place.

5. The mother pay the father’s costs fixed in the amount of $5,000 and this is to be paid within 6 months.

IT IS NOTED that publication of this judgment under the pseudonym Savard & Savard is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 10503 of 2013

MR SAVARD

Applicant

And

MS SAVARD

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally.  They have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. In this matter, final parenting orders and property orders were made on 21 August 2014.  Those orders were made by consent, and both parties were represented by counsel and also were represented by solicitors who had had the conduct of the matter.  Those orders were made on the first day of the hearing, when the matter was listed before me. It is of some significance that the parties agreed to property orders at the same time as the parenting orders. 

3. The parenting orders are specific about the issue of the children’s schools.  Order 19 requires the parties to do all acts and things to ensure the enrolment and attendance of the children at (omitted) Primary School.  It is not disputed that the parties’ oldest child, Y, has been attending that school now for two years and will be going into his second year next year.  The youngest child, X, has been attending (omitted) Pre-School and (omitted) Pre-School and I will come back to that issue.  But the orders clearly contemplated both boys attending at that primary school. 

4. Order 18 also requires the children to attend a (omitted) secondary school near the home of the wife or as agreed between the parties, and if they cannot agree, they need to attend mediation.  The parties agreed that they should have equal shared parental responsibility. Both parents complain in their affidavit about their inability to communicate and were each seeking sole parental responsibility with respect to education, but that has not been something that has been the subject of submissions today.  The focus has been on the change of school.

5. The mother has also filed a copious amount of material, much of which in the form of annexures, predates the 2014 consent orders.  Looking at her affidavits, it seems clear that she prepared the affidavits without legal representation, and I make clear that that material is not relevant for these purposes because it is necessary when considering what is referred to as the rule of Rice & Asplund (1979) FLC 90-725, the terms of the final orders and the circumstances that have arisen since. It is very clear that the case of Rice & Asplund and the cases that followed are merely a manifestation of the best interests of the children.

6. The Court should not lightly entertain there being a change to an earlier parenting order, because to do so would be to invite, as Evatt CJ said in Rice & Asplund, endless litigation. Indeed, although the mother abandoned the other orders sought in her amended response, it was clear that the mother was seeking to re-agitate not just the schooling issue but also issues of the father’s time, and was seeking a family report by a different report writer to Dr N, who is an experienced family report writer in this Court, in addition to a psychosexual assessment of the father.

7. The mother also refers to, in her first affidavit, as believing that there were sufficient changes in circumstances as referred to in Rice & Asplund referring to the fact that the orders had been made 12 months ago and it would be an opportunity to see how those orders were working.  Twelve months is not a lengthy period of time for final orders to have been in place.  It is clear that the mother has some regrets about entering into the consent orders.  Nonetheless, those are final orders of the Court, and even when orders are made by consent, judges of this Court do not simply rubber stamp those orders but have to be satisfied for themselves that the orders are in the children’s best interests.

8. The mother could have litigated the final hearing.  She could have had Dr N cross-examined to test the family report.  She could have sought to appeal the final orders: even though they were by consent, there are some circumstances where parties have successfully appealed consent orders.  She could have, if she had a valid complaint about her counsel or solicitors, made those complaints.  She has not done any of those things.

9. What is clear is that the mother’s case really centres on geography.  She says that whilst she had not researched the real estate prior to the orders being made, she thought that she would be able to stay close to the (omitted) area but has found that this is not possible and bought a property at (omitted). It is really this factor that she says means that the orders are no longer in the best interests of the children so far as their schooling is concerned.

10. The father’s case is quite different.  The father is the applicant in these proceedings as he brought an application in a case which was essentially seeking to enforce the parenting orders.  He talks about there being contraventions, and the only one that is relevant for this hearing’s purpose is the unilateral change to X’s preschool.  It is certainly clear on the material that the mother attempted to consult with the father about changing Y’s preschool to a preschool closer to her home. 

11. It is clear that the father wanted to rely on the orders that the parties had agreed to a relatively short period ago, and the father says that he purchased his property at (omitted) relying on the final orders, taking into account the travelling that would be involved.  It seems clear from the mother’s case, too, that if there’s a change to the preschool, there should be a change to primary school for Y, with X going to that school later on.  That would have to be the case because otherwise there would still be the travel back and forth but with the children going in two different locations.

12. I should make clear that this application has been determined on the papers with no cross-examination of the parties.  The mother in her first affidavit at paragraph 11 says that she can travel up to four hours a day ferrying the children to and from their preschool and primary school, but in her second affidavit at paragraph 15 says that it can be close to an hour if it is in peak hour traffic.  The father says that whilst he has not done the travel himself, that it is about 35 minutes in peak hour and less,  if not. He relies on a Google Maps print-out in that regard.

13. It would have been more convincing if the father had done the driving and was using Google Maps to show that distance.  I accept that Google Maps cannot be relied on as being definitive, but it seems to me that the dispute between the parties is that, it could be up to an hour’s travel or it could be closer to half an hour to 40 minutes. 

14. The mother says even when the arrangement changes such that the father will have six nights a fortnight, that she will be doing the majority of the pick-ups and drop-offs at the high school so that that is a factor that weighs in her favour in terms of the distance involved.  She also deposes to the children not liking the long car ride and sometimes finding that difficult.

15. One of the issues that is of importance in this case is there being consistency and stability for the two children. It seems clear from the portions of the family report Ms Fisken referred me to that Dr N was recommending, noting that these children appear to have some difficulties fitting in socially, and certainly the parties do not dispute, there having been a recent assessment for school readiness, that Y needs to spend another year at kinder before he is ready for school.

16. So clearly these children struggle a little bit, which makes there being stability for them even more important, and one of the things that provides stability for children when their parents have separated and when there is a lot of conflict – and it seems pretty clear, even though the parties were able to agree on consent orders, there is still a lot of conflict between the parents and there was a lot of conflict before then, is that school provides a safe haven for children.

17. It is also important that they are in the same environment, particularly when there have been challenges for them. For many young children, their parents separating is a big challenge for them emotionally and in terms of them feeling secure, and it is clear from the material, some of which is annexed to the mother’s affidavit and she quite properly says that there is no concern about the quality of (omitted) Primary School or (omitted) Pre-School;  it is the issue of the distance which she says is not in the children’s best interests and requires there being a change to the orders that were made in August 2014. 

18. I have referred briefly to the principles set out in Rice & Asplund, and of course there have been several single-judge cases and Full Court decisions that have considered that rule since, including SPS & PLS [2008] FamCAFC 16 and Marsden & Winch [2009] FamCAFC 152, and there have been other cases since. I do not propose to go through those cases in these ex tempore reasons because the issue has become a lot narrower now that the only issue being agitated is the change of schools.

19. In my view, the change of circumstance is not such that there should be a change to the orders that were made in August 2014.  I am concerned that X has had to experience going to two preschools at the same time.  That was not in his best interests and would have been confusing.  The only benefit of that having happened is that he still had connections with (omitted) Pre-School only having missed some time in the fourth term of this year.  It is also clear, from a letter dated September 2015 from (omitted) Pre-School, annexed to the mother’s affidavit that the school is well aware of X’s needs, and that X has been, as Ms W expresses, thriving at that preschool this year.

20. The preschool is well-placed to provide for X’s needs so that he will be able to, hopefully in 2017, commence primary school; going to the same primary school as his older brother.  So I am going to require the parties to the extent that it is necessary to do all acts and things, to re-enrol X at (omitted) Pre-School.  I am going to restrain the mother from sending X to (omitted) Pre-School, and from changing X’s preschool further or his primary school.  And otherwise the orders that were made on 21 August 2014 will remain in place.

21. This is an application by the father for costs following a dispute that was in essence, a Rice & Asplund dispute.  The father was entirely successful.  It should be noted and it is of relevance when looking at whether or not to depart from the ordinary rule that each party pay their own costs, that the father brought these proceedings in light of the mother breaching the order for equal shared parental responsibility, and unilaterally changing Y’s preschool. 

22. That is a relevant factor when considering whether to depart from the rules, because it was necessary for the father to bring it to court.  It was not the mother bringing it to court, saying that these orders were unworkable.  It was her responding to the father bringing an application which was, in essence, to enforce the orders that had been made only a little over a year ago. 

23. In my view, it is also relevant that this matter was brought for a Rice & Asplund argument that up until partway through the hearing today encompassed a broad range of issues seeking to revisit not just the schooling issues, but, in effect, seek a new family report by a different report writer, changes to the spend time arrangements, and the appointment of an independent children's lawyer.

24. The mother resists the application for costs on the basis that she was not consistently legally represented because she was unable to afford it, and that her financial position is also not strong.  She is reliant on Centrelink benefits and child support.  As Ms Fisken pointed out, a party being impecunious is not a reason for not making a costs order in and of itself.

25. Looking at the parties’ financial circumstances is one of the relevant matters under section 117(2A)(a) of the Family Law Act 1975 (Cth). It is clear that the father is in a stronger position than the mother. But what is also clear from the copious amount of material that was filed by the mother, much of which was irrelevant because it contained material that predated the orders that were made, is that the father has had to incur significant costs in dealing with those matters. The fact that the mother was not legally represented at that time does not change the fact that the father had to respond to it. And, indeed, that is clear from the detailed written submissions that were prepared for today’s hearing.

26. Considering all of the circumstances, I think a cost order is justified.  The amount that the father seeks is $6,043. He has provided a calculation of those costs.  In the circumstances, I proposed to order that the mother pay the father costs in the sum of $5,000.  That is taking into account that the father is in a stronger position than the mother. I will order that the mother pay that sum within six months.

I certify that the preceding twenty six (26) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date:  18 January 2016