Sheldon and Sheldon
[2012] FMCAfam 492
•28 May 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SHELDON & SHELDON | [2012] FMCAfam 492 |
| FAMILY LAW – Children – parenting – orders – application to vary consent orders – whether sufficient change in circumstances to justify re-opening parenting proceedings – application for summary dismissal – principles to be applied – best interests of the child – father seeking to spend time after release from prison – no sufficient change in circumstances – not in child’s best interests to re-open parenting proceedings – application dismissed. |
| Family Law Act 1975 (Cth), ss.60CA, 69ZN Federal Magistrates Act 1999 (Cth), s.17A Federal Magistrates Court Rules 2001, rr.13.09, 13.10 |
| Australian Building Industries Pty Ltd v Stramit Corporation Ltd [1997] FCA 1318 Bennett and Bennett (1990) 14 Fam LR 397; (1991) FLC 92-191 Freeman and Freeman (1987) 11 Fam LR 293; FLC 91-857 Hayman and Hayman (1976) FLC 90-140 King and Finneran [2001] FamCA 344; (2001) FLC 93-079 Lindon v Commonwealth (No.2) [1996] HCA 14; (1996) 136 ALR 251; 70 ALJR 541 Marsden & Winch [2009] FamCAFC 152 Mann & Prewett [2009] FamCA 929 Miller & Harrington [2008] FamCAFC 150; (2008) 39 Fam LR 654; FLC 93-383; 220 FLR 300 Rice v Asplund (1979) FLC 90-725 SPS and PLS [2008] FamCAFC 16; (2008) FLC 93-363 |
| Applicant: | MR SHELDON |
| Respondent: | MS SHELDON |
| File Number: | SYC 1624 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 14 May 2012 |
| Date of Last Submission: | 14 May 2012 |
| Delivered at: | Sydney |
| Delivered on: | 28 May 2012 |
REPRESENTATION
| The Applicant: | In person |
| The Respondent: | In person |
| Independent Children’s Lawyer: | Reid Family Lawyers |
ORDERS
The Application filed on 20 September 2011 is dismissed.
IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of Federal Magistrate Scarlett delivered this day will for all publication and reporting purposes be referred to as Sheldon & Sheldon.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 1624 of 2007
| MR SHELDON |
Applicant
And
| MS SHELDON |
Respondent
REASONS FOR JUDGMENT
Application
This is an application by the Independent Children’s Lawyer for summary dismissal of an application by the father to vary parenting Orders that were made by consent in the Family Court of Australia at Sydney 30 August 2010. Those Orders provided that the father should not spend any time with the child [X], who is now 11 years old.
The application for summary dismissal is supported by the mother but opposed by the father.
The basis for the application for summary dismissal is that it is submitted that the Applicant has provided no evidence of any significant change in circumstances which would warrant the re-opening of the parenting proceedings. The Independent Children’s Lawyer relies on the test set out in Rice v Asplund[1].
[1] (1979) FLC 90-725
The Current Orders
The Orders currently in force are those made by consent in the Family Court on 30 August 2010. Those Orders provide:
1. That the Mother have sole parental responsibility for decisions concerning the long term care, welfare and development of the child, [X] born[in] 2000 (“the Child”).
2. That the Mother be permitted to apply for and renew the Child’s passport without the consent of the Father.
3. That there be no time spent between the Child and the Father.
4. that the Father is hereby restrained from:
4.1 coming within 100 metres of the child, the Mother and the Child’s School;
4.2 sending letters or gifts to the Child.
5. That the Father keep the Family Court Registry advised of his current contact details and that the Registry be requested to provide those details to the Mother or the Child upon their written request.
The Father’s Application
The Applicant father filed an Application on 20 September 2011, seeking the following Orders:
1. That the child live with the mother.
2. Contact with [X] via a court stipulated contact centre under supervision, monthly, for a duration of six months.
3. Following completion of 2) above, immediately following, of six months duration of sole contact of one day per fortnight, ie. 1700 Saturday to 1700 Sunday.
4. Following completion of 3) above, contact with [X] shall be one weekend per fortnight, ie. 1700 Friday to Sunday 1700.
5. Should additional contact be desired by [X] at any stage during the above schedule, then agreement between both parents shall be forthcoming. The Family Court of Australia shall be notified immediately of any variation to above schedule and record.
The Mother’s Response
The Respondent Mother filed a Response on 30 December 2011 seeking only the one Order:
That the father’s application filed on 20th September 2011 be dismissed.
Appointment of an Independent Children’s Lawyer
By Orders made on 20 March 2012 the parties attended a Child Dispute Conference with a Family Consultant on Thursday 12 April 2012.
An Order was also made that the child [X] should be independently represented by a lawyer under the provisions of s.68L of the Family Law Act.
Legal Aid NSW nominates suitably qualified solicitors to act in the role of Independent Children’s Lawyer (“ICL”) and in this case the same solicitor was appointed who had acted in the previous proceedings before the Family Court.
On 23 April 2012 the ICL filed in Court a Case Outline seeking an order that the Father’s Application be dismissed on the basis that he has provided no evidence of any significant change in circumstances which would warrant the re-opening of the parenting proceedings, relying on the test set out in Rice v Asplund[2].
[2] supra
Background
The parties were married [in] 2000.
There is one child of the marriage, [X] who was born [in] 2000.
The parties separated on 15 November 2003 after the father assaulted the mother, who was admitted to hospital in [omitted] the following day. On 17 November the mother underwent surgery to her face to treat a fracture sustained in assault.
On 19 November the mother made a statement to the Police about the incidents of 15 November.
The father was subsequently charged and on 6 August 2004 pleaded guilty to a charge of assault occasioning grievous bodily harm. He was sentenced to a period of imprisonment for 18 months, suspended for two years.
On 8 March 2005 the father was sentenced for contravening Apprehended Violence Orders, being placed under supervision of the Probation and Parole Service.
Parenting Orders were made by consent in the Local Court at [G] on 23 June 2005.
On 19 December 2006 the [G] Local Court made an Interim Apprehended Violence Order against the mother. A further Interim order was made by the Court on 17 January 2007.
The father was arrested on 19 January 2007 and refused bail.
The parties were divorced on 30 January 2007.
The father was refused bail by the Supreme Court of New South Wales on 22 February.
On 27 February the father received a two year suspended sentence for assault and breach of the earlier Apprehended Violence Order. The Order was extended for a further period of three years.
The mother commenced proceedings in the Federal Magistrates Court on 7 March 2007.
On 2 April 2007 Housego FM made orders restraining the father from attending the child’s school or the child’s home or from coming within 100 metres of the child at any time.
On 24 May 2007 Housego FM transferred the proceedings to the Family Court.
The father commenced a relationship with a lady named Ms M in November 2008. He was subsequently charged with offences against Ms M on 2 March 2009.
On 26 March 2010 the father pleaded guilty to the charges relating to Ms M and was sentenced to imprisonment for a period of 3 years and 9 months, with a non-parole period of two years.
On 30 August 2010 the proceedings were listed for further hearing before Cohen J in the Family Court. The father was incarcerated but attended by telephone. He was represented by a solicitor from Legal Aid NSW and Mr Moss of counsel.
On that day the parties entered into Consent Orders providing that:
a)the mother was to have sole parental responsibility for the child;
b)there be no time spent between the child and the father; and
c)the father was restrained from coming within 100 metres of the child, the mother and the child’s school and from sending letters or gifts to the child.
The father commenced this Application on 20 September 2011.
The Relevant Law
An application to dismiss an Application for parenting orders under the rule in Rice v Asplund is an application for summary dismissal. Disposal of an application by summary dismissal is covered by the provisions of Rule 13.10 of the Federal Magistrates Court Rules 2001. Strictly speaking, an application for an order that a proceeding be dismissed should be made by filing an application in a case, as provided by r.13.09, but in my view the Independent Children’s Lawyer is in a different situation from either an Applicant or a Respondent and the Case Outline filed by the ICL makes it perfectly clear the order that is sought.
Rule 13.10 provides:
The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:
(a) the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or
(b) the proceeding or claim for relief is frivolous or vexatious; or
(c) the proceeding or claim for relief is an abuse of the process of the Court.
Section 17A of the Federal Magistrates Act provides that:
(1) The Federal Magistrates Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) the first party is prosecuting the proceeding or that part of a proceeding; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.
(2) The Federal Magistrates Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) the first party is defending the proceeding or that part of the proceeding; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
(3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a) hopeless; or
(b) bound to fail;
for it to have no reasonable prospects of success.
(4) This section does not limit any powers that the Federal Magistrates Court has apart from this section.
There is a wealth of authority on the principles relating to summary dismissal. The Full Court of the Federal Court held in Australian Building Industries Pty Ltd v Stramit Corporation Ltd:[3]
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.[4]
[3] [1997] FCA 1318
[4] Per Northrop, Lindgren & Lehane JJ
In Lindon v Commonwealth (No 2)[5], Kirby J said at [14]:
1. It is a serious matter to deprive a person of access to the courts of law for it is there that the rule of law is upheld…
2. To secure such relief, the party seeking it must show that it is clear, on the face of the opponent’s documents, that the opponent lacks a reasonable cause of action…
3. An opinion of the court that a case appears weak and such that it is unlikely to succeed is not, alone, sufficient to warrant summary termination. Even a weak case is entitled to the time of a court…[6]
[5] [1996] HCA 14; (1996) 136 ALR 251; 70 ALJR 541
[6] [1996] HCA 14 at [14]
The test in Rice v Asplund, as it is called, pre-dates that decision by two years, and was enunciated in Hayman and Hayman[7]:
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 a tribunal can be convinced 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 very real issues to be decided, issues which have arisen since the last hearing which have not been previously traversed.[8]
[7] (1976) FLC 90-140
[8] (1976) FLC 90-140 per Murray & Lusink JJ at 75,679-75,680
In the well-known decision of Rice v Asplund, it was held by the Full Court of the Family Court that:
The principles which, in my view, should apply in such cases are 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…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…[9]
[9] (1979) FLC 90-725 per Evatt CJ (Pawley SJ & Fogarty J agreeing) at 78,905
In Freeman and Freeman[10], there was an application to discharge a custody order that was made by consent. The Court held that once a court had settled the question of custody, an order should not be overturned. Strauss J (with whom Bell J agreed) referred with approval to the decisions in Rice v Asplund and Hayman[11] and said:
The welfare of the children is, in this case, as in any others concerning custodial arrangements, the paramount consideration. But once the court, either after a full hearing or by a consent order, has settled the question of custody, it is usually in the interests of the children that the order made by the court is treated as determining the dispute and be given the necessary support. Stability in the lives of children and also in the lives of adults is an essential prerequisite to their well-being. Another important reason for approaching with some care an application to overturn such a recent order is that the proper and orderly administration of the law in the community of which these children are part requires that orders made in this jurisdiction should not be overturned unless sufficiently weighty new facts and circumstances are shown to exist which throw sufficient doubt on the desirability of continuing the custodial arrangements brought about by the order. Each case must depend on its own facts, but, as a general proposition, it might be said that those new facts and changed circumstances should be such as to necessitate a fresh investigation to safeguard the best interests of the children.[12]
[10] (1987) 11 Fam LR 293; FLC 91-857
[11] supra
[12] (1987) 11 Fam LR 293 at 297-8
These decisions have been followed in a number of later decisions in both this Court and the Family Court. The authorities show that it is a matter for the discretion of the trial judge to deal with a change of circumstances as a preliminary issue, by way of an application for summary dismissal, or to proceed to a full hearing (see Bennett and Bennett[13] ; King and Finneran[14]; D and Y[15]; SPS and PLS[16] and Marsden & Winch[17]).
[13] (1990) 14 Fam LR 397; (1991) FLC 92-191
[14] [2001] FamCA 344; (2001) FLC 93-079
[15] (1995) 18 Fam LR 662; FLC 92-581
[16] [2008] FamCAFC 16; (2008) FLC 93-363
[17] [2009] FamCAFC 152
In this case, the question is being dealt with as a preliminary issue by way of an application for summary dismissal.
The way in which a court should approach the question has been set out by the Full Court of the Family Court in Marsden & Winch[18] at [50]:
Whether in a particular case a court should be willing to embark upon another hearing concerning the child and parent, or whether to do so would itself be demonstrably contrary to the best interests of the child , is a decision to be made in each particular case. How is that decision to be made? The court must look at:
(1) The past circumstances, including the reasons for the decision and the evidence upon which it was based.
(2) Whether there is a likelihood of orders being varied in a significant way, as a result of a new hearing.
(3) If there is such a likelihood, the nature of the likely changes must be weighed against the potential detriment to the child or children caused by the litigation itself. Thus, for example, small changes may not have sufficient benefit to compensate for the disruption caused by significant re-litigation.[19]
[18] supra
[19] [2009] FamCAFC 152 at [50]
Evidence and Submissions
The father relies on his affidavits of 20 September 2011 and 31 January 2012.
In his affidavit of 20 September 2011 the father deposes that he has never harmed the child and that any fear she may have of him has been instilled into her by the mother. He sets out his current circumstances:
a)He is now in full-time employment;
b)He no longer suffers from the depression which he had for approximately twelve years;
c)He completed the Seasons for Growth, Kairos Christian Fellowship and Positive Parenting programs; and
d)He misses his child and wants to be a father to her again.
The father provides more detail in his later affidavit of 31 January 2012. He provides the following additional information:
a)He attends appointments with a psychologist every three weeks;
b)The psychologist, Ms W, is trained in domestic violence prevention;
c)He is soon to start a Domestic Violence Program with Probation and Parole.
The father asserts that he has changed since his imprisonment. He deposes:
12. Depression has been a considerable impact in life and has affected the way I have acted in relationships I have been in.
13. With Exercise, Probation and Parole assistance, Psychologist Ms W appointments, a balanced diet free of stimulants, and Meditation, I live a life without violence.
14. I express how I have changed through the time in prison and with the help of medication whilst in custody. Currently, I have psychological help, undertake exercise three to four times a week and maintain a healthy eating lifestyle.
15. Prison sentences aim to rehabilitate offenders and I feel that I have felt the positive aspects of the time in prison. Change in an offender is the desired outcome from a prison term. I feel certain that I have changed significantly, that prison has been a positive factor in life and I no longer accept violence in life.
16. The death of my mother, Ms S during the time in prison, taught me about control, release and acceptance.[20]
[20] Affidavit of Mr Sheldon 31.1.2012 at paragraphs [12]-[16]
The father referred to the Orders made on 30 August 2010, stating:
21. The final orders of 30 August 2010 made in the Family Court of Australia by Justice Cohen have never been contravened. No contravention of these orders has been filed before the Family Court of Australia by Ms Sheldon…
23. I [Mr Sheldon] did not want to sign the final orders made August 30 2010, before Justice Cohen.[21]
[21] Ibid at [21] & [23]
The father read a written submission onto the record and subsequently forwarded the submission to the Court. The thrust of the father’s submission was that his life has changed dramatically now that he no longer lives with depression and that he has changed significantly for the better since then. He spoke highly of Ms M, his former partner, who had previously helped him. Ms M was the victim of the offences which led to his imprisonment.
The father told the Court that he had been incarcerated from 29 April 2009 to 28 April 2011.
The mother submitted that the fact that the father had reoffended with another party gave rise to her continuing concerns for her daughter’s safety.
The Independent Children’s Lawyer, Ms Reid, submitted that there is no change of circumstances on the evidence of the father which would be given such weight to make a change of circumstances sufficient to meet the rule in Rice v Asplund. Further, she submitted that the re-opening of the parenting proceedings would have an adverse impact on the child, whose express wishes are not to spend time with the father in circumstances where she is frightened of him.
Ms Reid referred the Court to the decision of the Full Court of the Family Court in Miller & Harrington[22], where Warnick, Boland and Murphy JJ held:
[22] [2008] FamCAFC 150; (2008) 39 Fam LR 654; FLC 93-383; 220 FLR 300
[72] It may be, however, that neither the expressions “summary dismissal” or “striking out” is the best term to describe the procedure when, in a parenting case, the rule in Rice and Asplund is considered at a preliminary stage. This is because, as we seek to emphasise, at whatever stage the rule in Rice and Asplund is applied, the court is bound to take into account best interests considerations and also because specific requirements, including legislative requirements, apply.
…
[76] The terms of s 69ZN of the Act, which set out the “principles for conducting child-related proceedings” also apply to a hearing in which the rule in Rice and Asplund is applied at a preliminary stage. In particular, s 69ZN(3) and (5) provide:
(3) The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.
…
(5) The third principle is that the proceedings are to be conducted in a way that will safeguard:
(a) the child concerned against family violence, child abuse and child neglect; and
(b) the parties to the proceeding against family violence.[23]
[23] (2008) 39 Fam LR 654 at [72] & [76]
Ms Reid also referred the Court to the decision of Fowler J in Mann & Prewett[24] which was an application to vary parenting orders made by consent 18 months earlier. His Honour applied the principle in Rice v Asplund and dismissed the application. His Honour held at [34]:
The mother is bound by an order she freely, and with the benefit of legal advice, procured the Court to make and that order reflected her consent to a return. The Court must be taken as finding that the Order was in the best interests of the child.
[24] [2009] FamCA 929
Fowler J went to hold at [35]:
Whilst it is true that the orders were entered into by consent they were entered into after proper discussion in which the parties had advice and where the relative positions of the parties were clearly before the Court. It must be assumed that the parties in making the agreement and asking the court to make orders, accepted the fact that those orders best served the interests of the child and resolved their dispute accordingly, and that the Court must also have accepted that.
Ms Reid further submitted that the current Orders ensure the child’s ongoing protection from the volatile and unpredictable violence that has been a major factor in the father’s life. The father had the benefit of legal advice and comprehensive expert evidence. The evidence upon which he relies to seek to re-open the proceedings does not meet the test for a significant change in circumstances which would warrant the matter to be re-litigated. In particular, she submitted that recommencing these proceedings would no doubt give rise to the need for further expert evidence, exposing the child to further assessment and interview at a time when she believes that the arrangements for her future are stable and ongoing.
Conclusions
This is a case where there has been an extensive history of litigation, originally in this Court and then in the Family Court, for nearly three and a half years, between March 2007 and August 2010. At issue was the father’s violent behaviour, which led to his convictions and imprisonment. The proceedings were finalised by consent orders made in the Family Court on 30 August 2010. There was expert evidence available in the form of three reports by Associate Professor Quadrio, a child and family psychiatrist.
In Freeman, Strauss J referred to a situation on all fours with this matter:
His Honour took the view that nothing of sufficient substance had occurred since the making of the consent order on 18 December 1984 which justified the reopening of a matter which had been concluded by consent orders made on that day. 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, and there were, in addition, affidavits from five witnesses for the husband and five witnesses for the wife. 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.[25]
[25] (1987) 11 Fam LR 293 at 297
The father was represented by a solicitor and counsel at the hearing. He now states that he “did not want” to sign the consent Orders, but he gave instructions to his counsel at the hearing to do just that. As in Mann & Prewett, the Court must proceed on the basis that the Family Court found those orders to be in the best interests of the child and that the parties, in entering into those consent orders, accepted the fact that those orders best served the child’s interests and resolved the dispute accordingly.
The father’s affidavit evidence is to the effect that he took part in a number of courses whilst in prison and has now been released into the community. He has obtained employment and he claims that he no longer suffers from depression, to which he attributes his earlier violent behaviour that led to his various convictions and sentences.
I am not satisfied that the father’s evidence contains sufficiently weighty circumstances to justify a re-opening of the parenting litigation which was finalised by consent less than two years ago.
I am also not convinced that the father’s claims warrant a further investigation and the bringing of expert evidence, which would of necessity require the child to be interviewed and assessed by an expert witness, whether a psychiatrist or a psychologist. It is not in the best interests of this child to undergo further disruption in her life at this stage.
The likelihood that the current orders would be significantly changed if the parenting proceedings were re-opened is, to my mind, small. The potential detriment to the child in recommencing the parenting litigation is significant. Further litigation at this stage is not in this child’s best interests.
The application will be dismissed.
I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 28 May 2012
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