Sklovsky and Gastin
[2007] FamCA 540
•6 June 2007
FAMILY COURT OF AUSTRALIA
| SKLOVSKY & GASTIN | [2007] FamCA 540 |
| FAMILY LAW - CHILDREN - Best interests of a child - No change in circumstances - Summary dismissal of application for parenting orders |
| Family Law Act 1975 (Cth) |
Hayman and Hayman (1976) FLC 90-140
Rice v Asplund (1979) FLC 90-725
F and C and Child Representative [2004] FamCA 568
CJD v VDJ (1998) 197 CLR 172
G and G [2000] FamCA 12 per Holden and Jerrard JJ at par 25-30
Edwards and Edwards (2006) FLC 93-306 at pp 81,160-81,161
Freeman and Freeman (1987) FLC 91-857
King and Finnernan (2001) FLC 93-079
Newling and Mole (1987) 11 Fam LR 974 at 977
Saad v Saad (1993) FLC 92-332 at 79,519
Bennett and Bennet (1991) FLC 92-191 at 78,262
| APPLICANT: | Mr Sklovsky |
| RESPONDENT: | Ms Gastin |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Rowley |
| FILE NUMBER: | SYF | 4231 | of | 2005 |
| DATE DELIVERED: | 6 June 2007 |
| PLACE DELIVERED: | Sydney |
| JUDGMENT OF: | O'Ryan J |
| HEARING DATE: | 18 April 2007 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Ms Genovese |
| COUNSEL FOR THE RESPONDENT: | Ms Black |
| SOLICITOR FOR THE RESPONDENT: | Ms Donnelly |
| INDEPENDENT CHILDREN’S LAWYER SOLICITOR: | Ms Rowley |
Orders
All applications by the father for parenting orders in relation to the child, a son, born on … April 2005 be dismissed.
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYF 4231 of 2005
| Mr Sklovsky |
Applicant
And
| Ms Gastin |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
Before me for hearing is an application for summary dismissal of an application to vary settled consent parenting orders. I am asked to consider as a threshold issue whether since final parenting orders were made there has been a change in circumstances such that there should be a reassessment of the current parenting arrangements.
The mother seeks that applications by the father for parenting orders be struck out. I will refer to Ms G as the Mother and to Mr S as the Father.
Final parenting orders were made on 4 April 2006 in relation to a child who was born on … April 2005. On one view, the current parenting proceedings were commenced on 20 June 2006 when an application was filed by the Father.
The Mother submits that the applications by the Father should be dismissed because the Father has not established that since 4 April 2006 a change in circumstances has occurred such that a Court would hear the Father’s applications.
The hearing proceeded in a truncated way in that there was no cross-examination. However, I had a great deal of evidence and it included a Family Report dated 21 March 2006.
Background facts
The background to what has happened is confusing. However I will set out some of what is disclosed in the material I have read.
The Father was born on … June 1963 and the Mother was born on … April 1969. The Father was born in the former Yugoslavia.
The parties first met in June 2003 when the Mother was looking for a house to buy and she attended an “open house” at which the Father told her he was a real estate agent. The Mother said the Father subsequently went to her home unit to do an appraisal of the unit which she was attempting to sell. At the time the Mother was living with Mr D, the father of her second child. The Mother has three children.
The Mother contended that over the next three months the Father kept in contact with her while she was looking for a house to buy and he went to her home on a number of occasions.
The Mother contended that the Father started to contact her on many occasions and said to her words to the effect “I want to marry you and have children with you”. The Mother said that told the Father “I’m not interested in having a relationship with you or anyone else because I still love [Mr D]. We can be friends”.
The Mother said that during the period when the Father was showing her homes to acquire he commenced to ask her for money and that he always said that he would repay her. He did repay her some money but he borrowed more than he repaid.
The Mother completed the purchase of a home at M on 20 November 2003.
The Mother contended that at around the time she completed the purchase of the M home she became suspicious of the Father’s motives towards her. The Father introduced her to his solicitor Mr L to do the conveyancing with respect to the purchase of the M property. The Mother said that when she first met Mr L she was introduced by the Father who said “You’ll have to come to our wedding”. The Mother said she later told Mr L that there was no way she was going to marry the Father and she was shocked by what he had said because the parties were not at that time in a romantic relationship. The Mother contended that following this incident the Father introduced her to several people as his wife.
The Mother said that at this time she ascertained that the Father was not a real estate agent. The Mother also realised that the Father had stolen tools from her home.
The Mother contended that the Father was aware that she having difficulties in her relationship with Mr D and was in the process of ending the relationship. The Mother said she had been in a relationship with Mr D on and off for ten years but it was “a destructive relationship”. Mr D said that he and the Mother lived together on and off for approximately ten years and that he is the father of the child X. The Mother said that Mr D is a heroin addict and when she is with him she uses heroin and for this reason she wanted to end the relationship.
The Mother said that she was working in an operating theatre at the time. The Mother contended that she was having a lot of difficulties with Mr D and the Father offered to help her with child care. The Mother said she did not want the Father around but she was desperate for help. Both her parents were in paid employment and her sister had gone overseas. She said her other sister was also in full time paid employment and her family were unable to give her any help.
The Father offered to collect the child X from after school care at 6:00 pm because the Mother did not finish work until 6:00 pm. The Mother commenced work at 7:00 am and so the Father also picked the child up from her home and drove him to school. The Mother had been working four six hour shifts per week and when the Father offered to assist her she changed to two ten hour shifts per week.
The Mother contended that the Father collected the child X on three occasions. On the second occasion the Mother ascertained that the Father had taken the child to his mother’s home rather than bringing the child to the Mother’s home. The Mother went to the home of the Father’s mother to collect the child. The Mother also ascertained that the Father had collected the child from school rather than after school care. The following week when the Mother came home she discovered the Father had not taken the child X to school that day and had remained in her home all day until she returned home from work. The Mother said she was very upset that the Father had not taken the child to school. The Mother contended that the child X later told her that the Father had locked him out of the house and the following day the Mother tried to get child care for the child X but could not locate any and she resigned her employment without giving notice.
Pausing there, I am not sure if the period of time when the Mother was given assistance by the Father with the care of the child X was in early 2004 or July/August 2004 or if there were two periods when it happened.
In January 2004 the Mother took the Father to meet her family and on this occasion the Father asked the Mother’s father for the Mother’s hand in marriage.
In January 2004 the Mother told the Father that she did not want to see him anymore however, she contended that he continued to call her and interfered in the renovations which were being undertaken to her home.
The Father contended that in late March 2004 the Mother commenced to reside at M. The Mother was previously living at H.
The Mother asserts that in April 2004 she held a housewarming party and the Father arrived at her home uninvited. The Mother contended that the Father told some of her neighbours that he was married to her and that he had acquired the house for her.
The Mother said that the Father continued to stalk her and she contacted Mr D and told him what was happening. The Mother contended that she then resumed her relationship with Mr D and started to use heroin again.
Mr D said that in June 2004 he met the Mother by accident and she told him that she was being stalked.
Mr D corroborated that in June 2004 he and the Mother resumed living together. Mr D said that he lived with the Mother from early June 2004 until the end of July 2004 and that at no time did the Father live with the Mother.
The Mother said that Mr D invited the Father into her home. She said that on several occasions she asked the Father to leave but the Father and Mr D ignored her. The Mother contended that at this time the Father befriended Mr D and gave him money to buy heroin.
The Mother contended that prior to her relapse in June 2004 she had not used heroin since early 2000. The Mother asserts that she tried to get off heroin and that the Father persisted in coming to her house to see her.
Mr D said that at the time he was not using drugs. However, about a week after he resumed living with the Mother the Father approached him and said words to the effect that it was really good to see that Mr D and the Mother had reconciled and that he just wanted to be friends with the Mother and help them out. Mr D said that the Father started coming to the home and as well he would often see the Father walking up and down in front of the home. Mr D said he did not form a friendship with the Father however, the Father offered him drugs and that is why he let him into the home. Mr D contended that the Father said words to the effect “I’ll support your drug habit if you leave [the mother]”. Mr D said that the Mother used heroin about once a week. He said the Mother never used any drugs at home while the children were there and that she was very angry with him for using drugs again. The Mother contended she has never used heroin while caring for her children.
In an affidavit the Father swore on 8 February 2006 he admitted that in June 2004 the Mother started “to see” Mr D and that they started using heroin at this time. He contended that he was concerned about the Mother’s wellbeing and also the wellbeing of her two children and he tried to influence her not to use drugs and tried to help her on many occasions “with no outcome”.
Mr D also gave evidence about an incident that occurred in late June or early July 2004. Mr D contended that the Father came to the home and the Mother was lying on a lounge and did not want to talk to the Father. Mr D found what he called a Bicardi Breezer and drank half of it. He said that the Father said that he had bought it for the Mother and that he (the Father) then put it back into the refrigerator. Mr D contended that a short while later he saw the Mother drink a bottle of Bicardi Breezer. Mr D said he fell asleep on the lounge and did not remember anything until the following day. However, when he woke the following morning he saw the Father coming out of the Mother’s bedroom. The Father then left the home and Mr D said he was very angry and he asked the Mother what the Father was doing in her room and the Mother replied “Don’t be stupid” and appeared very disorientated. Mr D contended that he and the Mother had sexual intercourse that night. I note that in an affidavit of 8 February 2006 the Father contended that he had seen the Mother inject heroin and cocaine intravenously and that after taking drugs “she was disorientated” (emphasis mine).
On 17 May 2006 an affidavit was sworn by the Father to which he attached a copy of a report dated 31 March 2006 from a Dr B. Dr B said that on 9 August 2004 the child X attended the clinic accompanied by the Father and that also on 10 August 2004 the child attended the clinic again accompanied by the Father. It is because of this evidence that I may be in error as to the period(s) when the Father gave some assistance to the Mother.
The Mother contended that at the time she told the Father that she did not want anything more to do with him, however, he continued to attempt to call her and stalk her.
In the Father’s affidavit sworn on 16 May 2005 he said that during the period from July 2003 to August 2004 he “enjoyed a sexual relationship” with the Mother which terminated in August 2004. He contended he was not aware that any other party enjoyed a sexual relationship with the Mother in this period of time. However, as seen, in an affidavit of 8 February 2006 the Father admitted that in June 2004 the Mother started to see Mr D.
The Mother contended that the Father was becoming very aggressive and violent towards her and that on 13 August 2004 he hit her and yelled at her and said “Why won’t you have a relationship with me?”.
On 13 August 2004 a police officer obtained an Apprehended Violence Telephone Interim Order against the Father.
On 16 August 2004 an Apprehended Violence Order was made against the Father for a period of 12 months.
On 23 August 2004 the Apprehended Violence Order made on 16 August 2004 was varied to provide that the Father must not enter premises in which the Mother may from time to time reside or work including M. The orders made on 16 August 2004, which were continued by the orders made on 23 August 2004, included an order that the Father must not stalk the Mother.
In September/October 2004 the Mother discovered that she was pregnant. She believed that the father was Mr D because the Mother and Mr D had been in a sexual relationship since June 2004. The Mother contended that she never had a sexual relationship with the Father and she does not believe that he is the father of the child.
In the Family Report the Mediator recorded that the Father maintained that the child was conceived “in a loving relationship” and that the only reason he initially doubted paternity was because the Mother confessed to him that she had slept with her former partner.
In the Family Report, the Mediator recorded that the Mother maintains that she had never knowingly had sexual contact with the Father and that when she became pregnant she assumed that the Father was Mr D.
In various documents the Father contended that the parties’ relationship ended in October 2004. As well, in one affidavit he said that from October 2004 to August 2005 the parties had not spoken very much although he contended that the Mother did invite him to the hospital on 1 April 2004 when the child was born.
In an affidavit sworn on 9 February 2006 the Mother contended that when she found she was pregnant she believed that Mr D was the father because he was the only man she had a sexual relationship with in that time.
The Mother asserts that she entered a methadone program so she could completely stop her heroin use. She said the Father approached her and asked her if she needed help to dry out and she agreed. The Father took the Mother and the children to a hotel in F and paid for seven days’ accommodation. The Mother contended she was desperate to get well and knew that she had to get away from Mr D to do so and she accepted help from the Father because she felt he owed her a lot of money. Although I do not have evidence of what happened it is apparent that the Mother has at some point obtained an Apprehended Violence Order against Mr D.
The Mother said that the Father has contravened the Apprehended Violence Order on many occasions and that he was charged with contravention of the order on 4 December 2004.
The Mother contended that she has not used heroin since early February 2005. In an affidavit sworn on 29 August 2006 the Mother gave evidence about her use of heroin. I will not repeat all of what she said however she contended that she attended a counsellor at a Sydney public hospital on 28 January 2005 and was advised to enter into a methadone program which she did. The Mother wrote a letter to the Nursing Registration Board advising them of her relapse at this time.
The child, a son, was born in April 2005.
It can be seen from the background outlined above that the Father asserts in one affidavit that from October 2004 to August 2005 the parties had not spoken very much although he contended that the Mother invited him to the hospital in April 2004 when the child was born. In another affidavit the Father contended that the parties kept in contact until 1 April 2005 and in an affidavit of August 2005 he contended that he had not spoken to her after that date. The Mother contended that she did not telephone the Father or invite him to the hospital to see the child when he was born. Her version is that the Father turned up at the hospital and she told him to go away and asked the nursing staff not to allow him to come into her room.
In April 2005 the Father filed in the Local Court, Sydney an application for final orders. The affidavit verifying the application was sworn on 16 April 2005. In the application he sought that the Mother undergo a DNA test to determine the parentage of the child. I note that in the application the Father also contended that the parties commenced to live together in July 2003 and finally separated in August 2004. Elsewhere he contended that the relationship commenced in June 2003 and they finally separated in October 2004. I was unable to locate any evidence explaining why the Father made this application for a DNA test. For example, he gave no evidence of any conversation with the Mother in which she said that he was not the Father.
On 20 May 2005 an amended application for final orders was filed on behalf of the Father. In this amended application the Father sought that the parties have “joint residence” of the child and that he be granted “reasonable contact”. I also note that in the amended application he contended that the parties began living together in July 2003 and finally separated in August 2004.
A DNA test was carried out in July 2005 in which samples were taken from the Father, the Mother and the child. The test showed that the Father is the putative father. The Mother contends that she was shocked by the results because she had never had a sexual relationship with the Father and she does not understand how this could have happened. She still believes that the Father is not the father of the child.
The Mother said that she ordered a further DNA test to be carried out on herself, the child and Mr D. Mr D agreed to undergo a DNA test because he believed that the child is his son. The Mother however contended that she had difficulty contacting Mr D to organise the sample collection.
In the Family Report the Mediator recorded that despite the DNA test the Mother cannot emotionally accept that the Father is the natural father of the child and that she wants nothing to do with him.
On 1 August 2005 orders were made in the Local Court that by 15 August 2005 the Father file an amended application for final orders and a supporting affidavit and that by 12 September 2005 the Mother file a cross application and supporting affidavit. The proceedings were before the Local Court on a number of occasions and ultimately in either September or October 2005 they were transferred to the Family Court.
On 17 August 2005 the Apprehended Violence Order obtained in August 2004 was extended until August 2007.
The Father swore an affidavit in August 2005. In this affidavit he contended that the parties “dated” for about three weeks in 2003 and commenced a sexual relationship in August 2004. He contended that the parties lived together continuously at the Mother’s home at M from “July to October 2004”.
On 10 November 2005 a response to an application for final orders was filed on behalf of the Mother and she sought that the Father’s amended application for final orders be struck out or in the alternative that he be denied contact and/or joint residence with the child.
On 16 November 2005 an order was made for the preparation of a Family Report. An order was also made that the parties attend a Pre Trial Conference on 30 May 2006.
The Father swore an affidavit on 17 November 2005. In this affidavit he contended that the parties commenced a relationship in approximately June 2003 and a sexual relationship in July 2003. He also contended that they lived together from July 2003 until October 2004.
On 18 November 2005 the Father filed an application in a case in the Family Court in which he sought that he have contact with the child.
On 14 December 2005 an affidavit was sworn by the Mother.
On 15 December 2005 a response to an application in a case was filed on behalf of the Mother and she sought that the Father’s interim application be dismissed.
On 19 December 2005 an order was made by a Judicial Registrar for the appointment of a Child Representative. The Judicial Registrar also made orders that the proceedings be adjourned to the Judicial Registrar’s duty list on 22 February 2006 and that any further documents on which either party sought to rely be filed and served no later than 10 February 2006.
The Mother contended that on 5 February 2006 the child X told her that the Father “stopped his car in front of the house, and stuck his finger up at me, and made a fist, and then drove away and beeped the horn three times”.
On 8 February 2006 an affidavit was sworn by the Father. In this affidavit he contended that the parties lived together in the Mother’s home at M. He made a number of allegations. He contended that he could establish that he paid for the removalists when the Mother moved into the M home. He contended he could establish that he paid $7,500 for the cost of renovations to the laundry at the Mother’s M home. He contended that he purchased various electrical and white goods for the Mother for a total cost of $5,500. He contended that he gave the Mother $4,000 to apply towards her mortgage. He contended that he also purchased jewellery for the Mother.
On 9 February 2006 an affidavit was sworn by the Mother in which she gave evidence in reply to the affidavit of the Father of 8 February 2006. She contended that the parties did not live together. She also contended that the Father did not pay for the costs of a removalist when she moved to her present home.
On 9 February 2006 an affidavit was sworn by the mother’s mother who is the maternal grandmother of the child.
When the Family Court Mediator, who was a registered psychologist, interviewed the Father he informed her that he proposed that the child reside with him and have supervised contact with the Mother. He told the Mediator that he intended to place the child in a daycare facility for three days each week and that his mother would care for the child on the other two days.
The Mediator said that although the Father denied stalking the Mother he nevertheless admitted that he had followed her and contended that he did this because he was concerned for her welfare and the safety of the children.
On 21 March 2006 the Family Report was completed and a copy provided to the parties. The Mediator made the following recommendations:
34.It is recommended that the mother has sole residence. Contact with the father is not recommended at this time. It is suggested that any future contact is dependent on the child’s wishes when he is older and capable of deciding for himself.
35.It is recommended that [the mother] undertake a drug relapse prevention program at [RD] Health Service as soon as practicable.
In the Family Report the Mediator reported that the Mother’s demeanour appeared normal and that her comments were clear and logical. Further, there seemed to be no overt signs of drug addiction. The Mediator reported that the Mother discussed each child’s personality, needs and education in a caring and knowledgeable manner.
The Mediator also reported that a warm relationship was observed between the Mother and the children and that the children were well presented and appeared healthy, happy and sociable. The Mother brought in appropriate supplies including a bottle and nappies for the child P and was heard to give clear instructions to a childcare supervisor about his needs.
The Mediator reported that the child P was assessed to have a secure primary attachment to his mother and that there was a strong maternal bond and that the Mother was warm and responsive to the needs of the child. The Mediator reported a close sibling relationship was observed.
The Mediator reported that in discussing the Father the child X said that he is “bad and rude; he screams rude words”. The child recalled the Father had come to the home “about a month ago” and “put the fist in” and that he and the child D were at home at the time and did not let the Father in. The Mediator reported that the child X expressed the wish that the Father “stopped frightening us”. I note that in the Family Report the Mediator reported that the Father denied the Mother’s accusation that he had recently threatened the child X, “claiming that he “loved that kid””.
In the report the Mediator said:
28. The mother appeared to be capable and responsible. She has demonstrated the capacity to provide for the needs of the child, and her other children, including emotional and intellectual needs. She has consistently facilitated the relationship between her older children and their respective fathers.
29. Unless there is evidence to the contrary, for example from the Department of Community Services, there was no indication that [the mother] is unfit. She has sought counselling for her drug problem and confirmed her intention to attend a drug relapse prevention program in the near future.
30. From his comments, it appears that the father persists in taking an interest in the mother’s movements. [The father’s] proposal to remove the child from the mother, the siblings and the maternal extended family and place him in a child care facility demonstrates a lack of regard and/or understanding of the child’s age and the importance of primary attachment objects.
31. This suggests a poor capacity on the part of the father to provide for the emotional needs of the child. If [the father’s] version of events leading up to the pregnancy is accepted, this, and the reasons for the Apprehended Violence Orders made against him should be taken into account.
32. It is generally agreed that children have a right to know both of their parents, their extended families and their background. If [the mother’s] version of events is accepted, however, a moral issue arises of whether the victim of stalking and rape should be forced to co-operate with the perpetrator to facilitate contact.
33. While the child may eventually wish to know his father, an early introduction in such circumstances is likely to have an adverse impact on the bond between the mother and child, and a possible deleterious effect on the child’s future self esteem and social adjustment.
On 3 April 2006 an affidavit was sworn by Mr G on behalf of the Father. On 3 April 2006 an affidavit was sworn by Mr C on behalf of the Father. On 3 April 2006 an affidavit was sworn by Ms Z on behalf of the Father.
On 4 April 2007 Judicial Registrar Johnston, by consent, made the following orders:
1.That the child [a son] (date of birth […]/4/2005) reside with the respondent mother.
2.That the said child have no contact to the applicant father.
3.That the mother pay, within 28 days one half the costs of the child representative.
4.That the matter be removed from the Active Pending Cases list.
The Judicial Registrar also made an order pursuant to s 65DA(2). As well, he noted that the orders were made in accordance with a handwritten minute of orders filed in court and signed by the parties and the Child Representative.
At the time the consent orders were made the Mother was represented by counsel. The Independent Children’s Lawyer appeared. As well, the Father appeared although he did not have legal representation. The transcript of the proceedings on 4 April 2006 reveals that counsel for the Mother informed the Judicial Registrar that there was a Family Report.
Colleen Donnelly, who is the Mother’s solicitor, gave evidence that on 4 April 2006 the Mother agreed to provide a photograph of the child to the Father.
On 7 and 11 April 2006 the Father telephoned Ms Donnelly and requested the photograph of the child.
On 20 April 2006 Ms Donnelly received a letter from the Father in which he noted the undertaking on 4 April 2006 with respect to a photograph of the child and said that if he did not receive the photograph “I will proceed to the Family Court of Australia Sydney for residence or contact”.
On 20 April 2006 Ms Donnelly wrote to the Father and advised that she had attempted to contact the Mother with regard to the photograph but had been unable to do so.
On 24 April 2006 Ms Donnelly received a telephone call from the Father during which the Father said that he would wait until the end of the school holidays and further that the Family Court had informed him that the “matter is still in the list”. Ms Donnelly told the Father that this could not be so because “the matter is settled”.
On 2 May 2006 Ms Donnelly received a photograph of the child from the Mother and on the same day Ms Donnelly sent the photograph to the Father.
On 4 May 2006 Ms Donnelly had a telephone conversation with the Father during which he thanked her for the photograph and also said “I’ll tell the court the matter is finished”. Ms Donnelly again told the Father that the matter should not be in the list.
On 4 May 2006 the Mother telephoned the Family Court Registry and was advised that the matter was still in the list. She was advised to send a facsimile transmission to what is called the case coordinator. On 4 May 2006 Ms Donnelly sent a facsimile transmission to the case coordinator and advised that orders were made on 4 April 2006 including an order that the matter be removed from the active pending cases list.
On 5 May 2006 Ms Donnelly telephoned the Father and told him that she had sent a facsimile transmission to the case coordinator and the Father said “Thank [the mother] again for me”.
On 9 May 2006 Ms Donnelly received a facsimile transmission from the case coordinator referring to the facsimile transmission of 4 May 2006. The case coordinator contended that on 4 April 2006 when an interim application was before a Judicial Registrar consent orders were made but “according to the physical and electronic court file” these were only interim orders and hence, an appointment for a Pre Trial Conference “still stands”. The case coordinator said that if the parties were happy for the orders to be final then she suggested that “terms of settlement” be sent to the Court for engrossment. What the case coordinator said was wrong and it should have been checked by the Court.
On 16 May 2006 Ms Donnelly telephoned the Independent Children’s Lawyer who said she thought the matter was settled and that she would sign terms of settlement. I am not critical of Ms Donnelly but in my view she should have ignored what the case coordinator said and simply sought an urgent listing before the Judicial Registrar. There was no need for further terms of settlement to be engrossed.
On 16 May 2006 Ms Donnelly telephoned the Father and advised him that she had drafted terms of settlement for him to sign and that she would then file them in the Court. She asked the Father to come to her office to sign the terms and the Father said “I’ve changed my mind, I want to go ahead with the matter”. In summary, on 16 May 2006 the Father told the Mother’s solicitor that he would not sign terms of settlement in relation to final orders and wished to continue to contest the matter.
The Mother contended that shortly after the orders were made in April 2006 she commenced to sell her home. However, on 16 May 2006 she was advised by her solicitor that the Father wanted to go back to Court and she then decided not to sell her home. The Mother said that she now lives in a three bedroom house “out of Sydney” and she is not prepared to disclose her address to the Father.
On 17 May 2006 an affidavit was sworn by the Father to which he attached a copy of the report dated 31 March 2006 from a Dr B.
On 9 June 2006 an application in a case was filed on behalf of the Father and he sought that the Mother take regular urine samples in regard to her drug use and that an Apprehended Violence Order be made against Mr D and further that this person “not to be anywhere near my son while using any drugs”.
The Father swore an affidavit on 9 June 2006 and in this affidavit he contended that he has seen the Mother and Mr D together “on many occasions”.
On 16 June 2006 Ms Donnelly sent a facsimile transmission to the case coordinator in which she referred to the facsimile transmission of 9 May 2006 and advised that the Father had said he had changed his mind and did not wish to sign the terms of settlement. Ms Donnelly requested that the matter be relisted as a matter of urgency before the Judicial Registrar.
Ms Donnelly had a telephone conversation with the Father on 19 June 2006 during which the Father said “If I don’t get to see [the child], I am going to subpoena DOCS. Then [the mother] will loose [child X] too”.
On 16 June 2006 a Registrar conducting, what is called for case management purposes, a defaulters’ list noted that final parenting orders were made by consent on 4 April 2006 and he directed that an application filed on 19 October 2005 be marked as finalised. He also noted there was currently no pending final application before the Court.
On 19 June 2006 the Father telephoned the Mother’s solicitor and threatened to have the Mother’s second child X removed from her care.
On 20 June 2006 an application for final orders was filed on behalf of the Father. An examination of this application reveals that the Father did not set out what orders he was seeking. I could not locate an affidavit verifying the application. However, I also note that in the application the Father contended that the parties commenced to live together in July 2003 and finally separated in October 2004.
The Mother contended that on 27 June 2006 the Father was stalking her by hanging around streets near her home.
On 27 June 2006 a Judicial Registrar reserved the Mother’s costs and adjourned the matter to 18 July 2006 before a Registrar.
On 18 July 2006 an order was made for the appointment an Independent Children’s Lawyer. The Father had still not filed an amended application and an order was made that he do so by 1 August 2006. The proceedings were adjourned to 21 August 2006 before a Judicial Registrar.
On 8 August 2006 an amended application for final orders was filed on behalf of the Father. In this application the Father sought that he spend time with the child as follows:
1.For the first month for one hour per week in the presence of the mother or some other person agreed to by the mother or ordered by the Court.
2.For the second month the time increase to two hours per week.
3.After six months the time increase to five hours per week.
4.After eight months he have unsupervised time with the child for five hours per week.
5.After 18 months the Father have seven hours per week with the child.
6.After two years the time increase to overnight from 9.00 am on Saturday to 1.00 pm on Sunday each alternate weekend.
The Father also sought that when the child commences school he spend time with the child each alternate weekend from 9.00 am on Saturday until 5.00 pm on Sunday and also for one half of each school holiday period.
The affidavit verifying this amended application was sworn by the Father on 8 August 2006. The Father contended that the parties commenced to live together in July 2003 and finally separated in October 2004.
On 8 August 2006 an amended application in a case was filed on behalf of the Father and he sought by way of interim orders the same orders he sought in the amended application for final orders, filed on the same day, which I have identified above.
On 21 August 2006 by consent the interim parenting issues were adjourned to a Judicial Registrar’s duty list on 18 September 2006. The Judicial Registrar also made an order that any further documents be filed by no later than 12 September 2006. On this occasion the Father was represented by counsel.
On 24 August 2006 an affidavit was sworn by Mr D.
On 29 August 2006 an affidavit was sworn by the Mother. The Mother replied to the affidavits of Ms Z of 3 April 2006, Mr C of 3 April 2006 and Mr G of 3 April 2006. The Mother also gave evidence in reply to what the Father said in his affidavit of 18 July 2005.
On 30 August 2006 a response to an application for final orders was filed on behalf of the Mother and she sought that the Father’s amended application for final orders be struck out or in the alternative the Father be denied contact and/or joint residence with the child. On 30 August 2006 a response to an application in a case was filed on behalf of the Mother.
On 13 September 2006 an amended response to an application for final orders was filed on behalf of the Mother. The Mother sought that the Father’s amended application for final orders be struck out or in the alternative an order be made that the Father not spend time with the child. The Mother contended that the parties were never in a relationship together and never resided together. On 13 September 2006 an amended response to an application in a case was filed on behalf of the Mother.
On 13 September 2006 an affidavit was sworn by Ms Donnelly.
On 18 September 2006 a Judicial Registrar made an order that the parties have leave to request the issue of a trial notice and the appointment of a Pre Trial Conference. The Judicial Registrar also made an order that the application in a case filed by the Father on 8 August 2006 be dismissed.
The Mother swore an affidavit on 14 December 2006.
On 20 December 2006 an application in a case was filed on behalf of the Mother and she sought:
1. That the amended application for final orders of [the father] be struck out on the basis that final orders were made by consent on 4 April 2006, and the matter has already been adjudicated.
2. That [the father], the respondent in this application in a case, and the applicant in the application for final orders, pay the costs of the [the mother] with respect to this application and to the application for final orders.
On 9 March 2007 Steele J made some orders including an order that the Father file an affidavit setting out details of the change in circumstances said to justify his amended application for final orders filed on 8 August 2006
The Father swore an affidavit on 22 March 2007. In this affidavit he contended that on 4 April 2006 he did not have the benefit of legal advice or representation. However, he admitted that since proceedings commenced in February 2005 intermittently he was legally represented including by counsel. The Father also contended that at the time of providing his consent it was his understanding that the orders “were only temporarily binding” and that he could apply at any time to have the orders varied. He contended that had he been aware that the orders of 4 April 2006 were final then he would have not consented to the making of the orders.
The Father went on to give evidence of what he described as a change in circumstances. The Father contended that at the time of the orders of 4 April 2006 the child was residing with the Mother in a residence located only approximately 100 metres from his residence and for this reason whilst he appreciated that consenting to the orders would deny him any contact with the child he knew that he would still see the child from time to time as he often saw the child with the Mother at the local shops or in or around the local area.
The Father contended that since April 2006 the Mother has moved residence and taken the child with her and he is unaware of where the Mother and the child now reside and thus, he no longer sees either of them in the local area. The Mother has given evidence explaining why she moved.
The Father contended that in May 2006 he saw the Mother with Mr D and that both the Mother and Mr D confessed to using heroin. The Father contended that since seeing the Mother on that occasion in May 2006 he has had serious concerns with the well being of his son because of the Mother’s previous use of heroin when she was in the company of Mr D.
The Father contended that during 2003 his father was diagnosed with stomach and liver cancer and that he died on … December 2005. The Father said he was very close to his father and he had great difficulty coming to terms with his passing. He contended that in April 2006 when the orders were made he was still undergoing “the grieving process”. He also contended that he was not mentally fit to look after his son and that it would be appropriate for him to take time out to complete the grieving process.
The Father contended that when the orders were made in April 2006 he was unemployed and in a poor financial situation and this was a further reason why he thought it would be appropriate for him to temporarily agree for the Mother to have “uncompromised contact”. The Father contended that he is now working as a contractor performing interior decorating and painting duties for HB Pty Ltd and he has a weekly income of approximately $1,300.
On 5 April 2007 an affidavit was sworn by the Mother in which she purported to reply to the affidavit of the Father of 22 March 2007. The Mother said that she has moved out of Sydney and she did so because the Father has continually harassed her and the children. She contended that prior to moving from her home at M she stopped going out because the Father followed her everywhere. The Mother’s child D is in Year 10 at W College and he lived with the Mother’s sister during the school term. The child obtained a scholarship to W College and is a high achiever. The Mother said that this caused her a lot of distress and she misses the child as do his brothers, however, she felt no choice because of the Father’s continued harassment.
The Father swore an affidavit on 18 April 2007. In this affidavit he denied that he has stalked or harassed the Mother or her children. He said that he is residing with his mother and his brother.
relevant principles
Introduction
In these proceedings, as in all proceedings concerning the parenting of children, I must apply the provisions of Pt VII of the Family Law Act 1975 (Cth). Section 65D(1) provides that in proceedings for a parenting order, subject to the presumption of equal shared parental responsibility in s 61DA and parenting plans in s 65DAB, the court may make such parenting order as it thinks proper. Section 65D(2) provides that a court may make a parenting order that discharges, varies, suspends or revives some or all of an earlier parenting order. However, a consideration of Pt VII reveals that there are no statutory provisions that deal discretely with when a court may refuse an application for discharge, variation, suspension or revival of existing orders nor the principles to be applied in determining whether or not to exercise the jurisdiction.
Notwithstanding the absence of particular statutory considerations there is a significant body of case law that establishes the concept of ‘a change in circumstances’. The concept was first established in Hayman and Hayman (1976) FLC 90-140 and affirmed in Rice and Asplund (1979) FLC 90-725: see F and C and Child Representative [2004] FamCA 568 for a summary of the development of case law on this ‘rule’. For discussion of the rule see Middleton S, ‘Time for a Change? Shared parenting, Variation of Orders and the Rule in Rice and Asplund’ Federal Law Review vol 34 2006 at 399-420 and Middleton S ‘Variation of parenting orders and the best interests of children: Are some categories of change more likely than others to satisfy the rule in Rice and Asplund’ Australian Journal of Family Law vol 21 2007 at 1-19.
A useful starting point is the often cited passage from Rice and Asplund (supra) per Evatt CJ (with whom Pawley SJ and Fogarty J agreed) at 78,905:
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, 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 (passage quoted in Hayman and Hayman (supra), at p. 75,680). These are not necessarily matters for a preliminary submission, but they are matters that the judge should consider in his reasons for decision. It is a question of finding that there are circumstances which require the court to consider afresh how the welfare of the child should best be served. These principles apply whether the original order is made by consent or after a contested hearing. The way they apply and the factors which will justify the court in reviewing a custody order will vary from case to case.
Once the court is satisfied that there is a new factor or a change in circumstances, then the issue of custody is to be determined in the ordinary way…
The decision in Rice and Asplund (supra) may be viewed as part of the principle of finality of litigation and as providing recognition of the need to protect children from harm caused by frequent, prolonged and unnecessary litigation. This justification for the rule is supported by comments of the High Court in CJD v VDJ (1998) 197 CLR 172 as well as a weight of Full Court authority: see G and G [2000] FamCA 12 per Holden and Jerrard JJ at par 25-30; and Edwards and Edwards (2006) FLC 93-306 at pp 81,160-81,161. In relation to the need to protect children from frequent and unnecessary litigation, the majority of the High Court in CJD v VDJ (supra) said at par 118 (CLR at 204):
[118] The need for caution is particularly great when an order for a change in the residence of children has been made and the appellant seeks to tender further evidence pointing to changes in circumstances, outlook or apparent welfare. In all but the most ideal of circumstances, some time will be taken by children to adapt to their different situations. So too the public and private interest in the finality of litigation must be given some weight even in cases of this kind. The important private interests of children are unlikely, save in special circumstances, to be served by frequent displacements of them and the uncertainty of prolonged and repetitive proceedings.
The best interest principle, although at times sitting awkwardly with this rule, remains the overriding consideration. Strauss J considered the relationship with the best interests principle with the rule in Rice and Asplund (supra) in the Full Court decision of Freeman and Freeman (1987) FLC 91-857 (Fogarty, Bell and Strauss JJ). He said at pp 76,470-76,471:
The welfare of the child is, in this case, as in any other 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 interest 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 pre-requisite 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 law in the community of which these children are part requires the 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 bought about by the order. Each case must depend upon 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 interest of the children.
Consent Orders
It is clear from the passage in Rice and Asplund, (supra), and subsequent Full Court decisions that the rule applies to orders made by consent as well as those made after a contested hearing: G and G (supra) at par 21. The consent orders made on 4 April 2006 are clearly within the ambit of the rule.
Type of change
As Middleton pointed out in her article ‘Time for a change? Shared parenting, variation of orders and the rule in Rice and Asplund’ Federal Law Review vol 34, 2006 at 404 the “type of change required has been variously described” and include a “material changes in circumstances” (see Houston and Sedorkin (1979) FLC 90-699 at 78,727-78,728); “significant change of circumstances”: (see Griffiths and Griffiths (1981) FLC 91-064 at 76,500 per Lindenmayer J); and “substantial change in circumstances”: (see D and Y (1995) FLC 92-581 at 81,764 per Nicholson CJ, Baker and Tolcon JJ). However as Middleton said “[d]espite the differing terminology…the various formulations are all directed in substance at the application establishing a change in circumstances that warrants consideration of whether existing orders should be altered”.
In King and Finnernan (2001) FLC 93-079 Collier J said at pp 88,367- 88,369
44. 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 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. This is not always a clear distinction.
…
49. Clearly, both words [‘significant’ and ‘substantial’] 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.
50. …In D and Y (1995) FLC 92-581 their Honours of the Full Court made a finding that a trial judge has a discretion whether to deal with a change of circumstances as a preliminary issue or to proceed to a full hearing. Their Honours indicated that in the circumstances that prevailed in that case, that is, a nine day hearing a little more than two years previously, that a judge would be extremely loath to reopen the issue of custody, except on strong grounds. The word strong in that case is a departure from substantial or significant as used in earlier cases. It indicates clearly what is required. The change or fresh circumstance must be such that upon becoming advised of it and being satisfied 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 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.
…
62. What is required is that a trial judge be satisfied that there has been demonstrated such a change that it must be a matter of concern and requires the court to examine the situation of the children afresh. There is no assistance to be gained from the authorities as to whether or not this can be done cumulatively. The law at present requires that there be a change such as to require re-litigation. That change can be made up of component parts or could rely on one single but major change. However, a cumulative basis for change in circumstances cannot be made simply by weight of numbers of the changes alleged to have occurred.
…
64. … the purpose of the rule is to protect the children from exposure to further unnecessary litigation.
The passage cited above from Collier J in King and Finnernan (supra) was approved by the Full Court in F and C and Child Representative (supra) at par 44 and Edwards and Edwards (supra). However in F and C and Child Representative (supra) the Full Court said that in light of the High Court decision in CDJ v VAJ (supra) a caveat needs to be placed on Collier J’s view that it may be sufficient for the applicant to establish there is a “real likelihood that change may follow” (par 45).
In CDJ v VAJ (supra) McHugh, Gummow and Callinan JJ looked at the circumstances in which the Full Court might admit further evidence in parenting proceedings (see 197 CLR at 217-218). The Full Court in F and C and Child Representative (supra) noted the High Court’s appreciation in this decision of the principle of finality of proceedings and the need to protect children from unnecessary litigation and their view that further evidence might only be allowed if it “would clearly have led to a different conclusion” (par 46). However, it was noted that the High Court did recognise there are “exceptional cases” where there is a “very real risk” that the order may place the child in danger, for example in cases of child abuse: see also Edwards and Edwards (supra) at 81,160-81,161.
Point at which change determined
Consideration of whether the threshold test has been met is to be determined having regard to circumstances as they exist at the date of the hearing and not at the date the application for variation was filed: Newling and Mole (1987) 11 Fam LR 974 at 977 per Nygh J; see also Middleton S ‘Time for a change? Shared parenting, variation of orders and the rule in Rice and Asplund’ Federal Law Review vol 34, 2006 at 404.
Onus of proof on the applicant seeking variation
The onus is on the party seeking reconsideration of settled parenting orders to adduce evidence sufficient to justify reconsideration of orders. The onus is not on the respondent to satisfy the Court that the current orders should continue in force: Saad v Saad (1993) FLC 92-332 at 79,519 per Baker, Lindenmayer and Moss JJ at 71; cited by approval in F and C and Child Representative (supra) at par 42.
Determination of change of circumstances as a preliminary issue
The question of whether there has been a change in circumstances sufficient to satisfy the rule in Rice and Asplund (supra) may be determined as a preliminary issue or the court may proceed to full hearing. This is a discretionary matter: Bennett and Bennet (1991) FLC 92-191 at 78,262; D and Y (supra) at 81,764; F and C and Child Representative (supra) and Lowe v Lowe (High Court, special leave application on 6 April 1990).
In summary, if changed circumstances have not been established the application for variation may be summarily dismissed.
The impact if any, of the Family Law Amendment (Shared Parental Responsibility) Act 2006
In my view, the principles and operation of the rule in Rice and Asplund (supra) outlined above remain unchanged after the introduction of amendments to part VII of the Family Law Act by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) (the “amending Act”). This conclusion can be drawn from the text of the amending Act expressly providing for the continued operation of the rule and the explanatory memorandum and second reading speech supporting and reaffirming this. In addition, decisions dealing with the impact of the 1995 legislative changes can be applied by analogy in their conclusion that legislative amendments do not alter the rule.
Significantly, the amending Act specifically mentions Rice v Asplund (supra) in Schedule 1 Part 2 and directs attention to this case for an explanation of the need for changed circumstances in relation to the variation of parenting orders. Item 44 reads:
44 Grounds for discharging or varying parenting orders
The amendments made by this Schedule are taken not to constitute changed circumstances that would justify making an order to discharge or vary, or to suspend or revive the operation of, some or all of a parenting order that was made before commencement.
Note: For the need for changed circumstances, see Rice and Asplund (1979) FLC 90-725.
The Senate Revised Explanatory Memorandum to the Amending Act gave the following explanation of Item 44 at pages 3- 4:
10. The case of Rice and Asplund (1979) FLC 90-725 limits the court’s capacity to rehear matters to two kinds of cases: those where there is a change in the circumstances of the parties or where some new factor has arisen which would justify such a serious step; and those where there is some factor which was not disclosed at the previous hearing which would have been material.
11. The Government amendment puts beyond doubt that the changes to the Family Law Act 1975 made by this Bill, do not constitute such a significant change in circumstances or new factor so as to meet the test of Rice v Asplund in the first kind of cases. The changes to the legislation are not relevant to the second kind of cases as the legislation would not have been in existence to be disclosed at the time of the previous hearing of the parenting order.
12. The note following new item 44 directs readers to the principle in Rice v Asplund. This note is to assist readers, particularly self-represented litigants, understand how new item 44 links to the common law.
13. The Government amendment addresses concerns raised by the Family Court of Australia about the potential impact on judicial resources, and on hearing times, of increased litigation following commencement of the legislation, caused by people seeking to have previously resolved matters reconsidered purely on the basis of the changes to the law. The Government also considers that it is generally not in the best interests of children to have repeated applications concerning them before the court.
These same intentions were reaffirmed by the Minister for Justice and Customs whilst moving the Government amendments in the Second Reading Speech on the Bill on 30 March 2006. Both the explanatory memorandum and second reading speech provide clarification that the amendments do not constitute a change of circumstances that would satisfy the rule. They also made clear that one of the intentions behind including reference to Rice and Asplund (supra) was to alert litigants, particularly self-represented litigants, to the applicable principles.
In relation to the changes to Pt VII of the Family Law Act made in 1995 by the Family Law Reform Act 1995 (Cth) it is clear that these legislative changes did not make the threshold test in Rice v Asplund (supra) no longer relevant. In F and C and Child Representative (supra) the Full Court said at par 44:
44. Most recently, Collier J, when determining an appeal from a Federal Magistrate in King and Finneran (2001) FLC 93-079 dealt first with an argument that following the extensive amendments to the Family Law Act in 1995, it was now mandatory to conduct a full inquiry of the matters set out in s 68F whenever a parenting order is sought. We agree with his Honour’s view that the legislation has not changed sufficiently to cause that which could be done before the 1995 amendments, that is the application of a threshold test, to be unavailable since the coming into effect of the 1995 amendments…
I have been unable to locate any Full Court decisions since the 2006 amendments that have directly looked at whether the rule in Rice and Asplund (supra) remains unchanged after the amendments. However, in Edwards and Edwards (supra) the Full Court whilst discussing the applicability of the principles of Rice and Asplund (supra) to a further application for parenting orders where proceedings were continuing, cited inter alia the passage of Collier J in King and Finnernan (supra) extracted above in relation to neutral impact of the 1995 amendments. Clearly, the interpretation of the impact of the 1995 legislative amendments as being neutral on the rule in Rice and Asplund (supra) is good law. By implication there is no obvious reason why the 2006 changes, which also deal with changes to the contents of the courts approach rather than the framework used to assess whether settled parenting orders should be re-opened, should alter the rule in Rice and Asplund (supra).
conclusion
Introduction
In this case the hearing proceeded in a summary way and I was asked to consider as a threshold question whether the Father established at the time of the hearing a material change in circumstances.
I have considered all of the evidence and in particular the matters outlined by the Father in his affidavit sworn 22 March 2007 which he contends demonstrate changed circumstances.
Change of circumstances relied upon by the father
In summary, the Father relied upon:
1.Receiving no legal advice or representation and an allegation of being misinformed of the legal effect of consent orders;
2.Loss of incidental contact with the child ‘in the local area’ when the Mother and the child moved residence;
3.Concerns about the ‘wellbeing’ of the child arising out of sighting the Mother with an ex-partner who is a known heroin user and has a history of drug use with the Mother;
4.Improvements in mental health of the Father since he has worked through grief from loss of his father; and
5.Improvements in the Father’s employment and financial situation.
The short period of time since consent orders were made
In this case, the short period of time between the making of the consent orders on 4 April 2006 and the Father filing his application for variation of orders is relevant to any consideration of whether the orders should be re-opened. The Full Court has said in Newling and Mole (supra) per Nygh at 977 (with whom Barblett & Fogarty JJ agreed): “There is no fixed rule; there is no fixed minimum period in which such a question can or cannot be reconsidered by the court.” However, the court has consistently shown a reluctance to open recently made orders: F and N (1987) FLC 91-813 per Nygh J (with whom Evatt CJ and Burton J agreed). This is particularly the case when orders were made after a full hearing but is also the situation with orders made by consent: see D and Y (supra).
Receiving no legal advice or representation and an allegation of being misinformed of the legal effect of consent orders.
In his affidavit sworn on 22 March 2006 the Father said he received no legal advice or representation on the day the orders were made and that he consented to the orders believing they only had interim effect. He also alleged a conversation took place between himself and the Child Representative on that day which confirmed his understanding that he was able to apply to the Court for variation of consent orders in the future.
In certain circumstances there may be issues that arise in relation to consent orders particularly where there was limited evaluation of whether the arrangements agreed upon were in the best interests of the child: see also Middleton S ‘Time for a change? Shared parenting, variation of orders and the rule in Rice and Asplund’ Federal Law Review vol 34, 2006 at 417. I note that s 60CC(5) now provides that if a court is considering whether to make a consent order the court may, but is not required to, have regard to all or any of the primary considerations in s 60CC(2) and the additional considerations in s 60CC(3).
However it is clearly established that the rule in Rice and Asplund (supra) applies to consent orders and in my view there are very good reasons why this is so.
In this case the Father commenced proceedings and they were before the Local Court and the Family Court on a number of occasions before the final orders were made. The Father had filed evidence including from various lay witnesses. From time to time the Father had legal representation including counsel. The Father was in the position without legal representation to participate in a hearing. There was a Child Representative. Then importantly there was a Family Report and the Father had been interviewed by the Mediator. The final orders made were consistent with the very clear recommendations of the Mediator.
In conclusion I am of the view that, in the circumstances of this case the matters raised by the Father about the lack of legal advice or legal representation on the day the orders were made and the conversation that took place between himself and the Child Representative are irrelevant.
Further for reasons I will shortly give, it is very clear that the Father was aware of the consequences of the orders.
Loss of incidental contact with son ‘in the local area’ after relocation
The Father says that incidental contact occurring “in the local area” with the child was one of the reasons why he consented to the orders. He said he believed the orders were “for a limited period of time” and that “I would still see my son from time to time” as they lived approximately 100 metres apart in M. The Father contended that this incidental contact often occurred “at the local shops or in and around the local area”. Since the orders were made the Mother has moved to an undisclosed residence and the Father says this has meant that he has not seen his son for almost a year.
The Mother pointed out that the Father was not legally allowed to have incidental or in fact any contact with her or the child as this would be in contravention of the Apprehended Violence Order. The Apprehended Violence Order has been in place since August 2004 and in 2005 was extended for period of two years. The Mother contended that the Father contravened the order “on many occasions” with charges being laid for contravention. The Mother’s evidence is that the Father has constantly harassed her, frightened the children and caused her to move outside Sydney to get away from this. The Mother’s version of events paints a picture of harassment rather than incidental contact between the Father and the child.
I do not accept the contentions of the Father. Prior to 4 April 2006 the Father was aware that there was an issue about his stalking the Mother and that at the time there was a current Apprehended Violence Order. It was clearly inappropriate for the Father to have any contact even the possibility of sightings. In any event, the quality and nature of this incidental contact is in dispute. If the Mother’s version of events is accepted then this loss of sighting contact in the local area might be seen as prevention of continued harassment, intimidation, stalking and a breaches of the Apprehended Violence Order. Further, the extent of any contact would have been minimal at best. In my view, the opportunity for such contact being removed does not constitute a material change in circumstances sufficient to justify reopening of parenting orders. This is my conclusion even if the Father’s version of events was accepted.
Concerns about the ‘wellbeing’ of the child arising out of sighting the mother with an ex-partner
The Father relies upon what he believes to be the Mother’s involvement with her ex-partner Mr D and the impact this would have on the child. The Father alleged that in or about May 2006 he saw the Mother with Mr D pushing a pram containing a small child. He contended that this gives rise to concern for the child’s wellbeing as both Mr D and the Mother have admitted to using heroin and the Mother has given evidence that she tends to use heroin whilst in Mr D’s company. The Father also said the Mother looked “unwell” on this occasion and like she was back on the drugs.
In response, the Mother in her affidavit sworn on 5 April 2007 said:
… I have not used heroin since early February, 2005 when I entered a rehabilitation program. Prior to my relapse in June, 2004, I had not used heroin since early 2000. I did not use heroin on 19 June, 2006.
I note the Mother does not mention anything in her affidavit about Mr D either to confirm or deny any alleged involvement with him.
In this case the potential contact and involvement of Mr D does not constitute a material change in circumstances as this knowledge was available to the Father at the time the consent orders were made. His ‘sighting’ does not provide any new information. In fact exactly the same allegations were made by the Father to the Mediator and recorded in the Family Report dated 27 March 2006 being before the consent orders were entered into. The Mediator recorded the Father’s allegation that Mr D was back in the Mother’s life, that he had seen him pushing his son’s pram, and that the Mother looked like she was back on heroin. The Family Report was before the Judicial Registrar on 4 April 2006. The judicial Registrar was aware before the consent orders were made of Mr D’s potential involvement pushing prams and the Mothers allegedly looking like she was back on heroin
It is also relevant to note in relation to the child’s well being that these allegations were denied by the Mother. In the Family Report the mediator noted the Mothers version that she “is not currently using heroin, nor is she associating with Mr D except for legal reasons and, presumably, [child X’s] contact”. The Mediator also recorded that the Mother displayed “no overt signs of drug addiction”. The Mediator described the Mother’s demeanour as normal, her comments as “clear and knowledgeable” and her discussion of the children’s personality, needs and education as “caring and knowledgeable.”
In summary, I reject the Father’s contentions. The Father had these concerns before the orders of 4 April 2006, they were considered by the Mediator and were before the Judicial Registrar at the time the consent orders were made.
Improvements in mental health of father since he has worked through grief from loss of his father
The Father contended that at the time of entering into the consent orders of 4 April 2006 he was grieving as a result of his father passing away in December 2005. The Father said that at the time he thought it best for the child to temporarily reside with the Mother to enable him to “take time out to complete the grieving process” and “regain the strength to be the best father I possible can be”. Pausing there, the inference I draw is that the Father was aware that a consequence of the orders would be that he not see the child. In any event, in his affidavit the Father contended that it is now over a year and four months since he lost his father and he has now completed the grieving process and feels he is “mentally fit to look after my son”.
Improvements in mental health have been recognised as constituting a sufficient change in circumstances in some situations. For example, in Houston and Sedorkin (supra) recovery from former mental problems by a non-custodial wife combined with a happy re-marriage was seen as sufficient to meet the Rice and Asplund test. However each case must be considered on its own individual facts and ultimately on the evidence. Although loss of a parent is often a difficult and sometimes debilitating time, experiences vary on the scale of severity. In this case the Father has put no evidence before me apart from assertions in his affidavit as to how the loss of his father impacted upon his mental health or how it impacted upon his desire and ability to parent the child.
Further, the mental health of the Father in terms of his grief management was not even mentioned, let alone a factor in the Family Report dated 21 March 2006. This report relied upon as one of its sources an interview with the Father during the time he contends that he was experiencing this grief. There is no evidence contained in the report that the Father mentioned the death of his father to the Mediator or any comments of the Mediator that indicate that the Father was experiencing grief impacting on his desire or ability to parent. This is not to say the Father was not experiencing grief at the time it is only to say there is no evidence that would assist him in establishing the extent it affected him at the time.
I also take into account the evidence of Ms Donnelly and what happened between 4 April 2006 and 16 May 2006. I know that as at 16 May 2006 the Father had determined that he was going back to court. This was just over a month after he agreed to the consent orders. Further, the Father told the Mediator he was seeking residence of the child at a time after his father’s death and before the consent orders were entered into..
I therefore do not accept these matters as constituting a material change in circumstances.
Improvements in the father’s employment and financial situation
Another change in circumstances the Father sought to rely upon is improvements in his employment and financial situation. The Father contended that at the time the consent orders were made he was unemployed and in a poor financial situation and this contributed towards his decision for the Mother to “temporarily” have “uncompromised contact” with his son. Pausing there, this is another example of the Father’s awareness or cognisance of the effect of the orders namely that he would not see his son. In any event, the Father contended that he is now employed as a contractor for HB Pty Ltd performing interior decorating and painting duties. His submission is that this constitutes a material change in circumstances as he now earns approximately $1,300 each week and is able to meet financial needs of his son.
Various decisions have considered changes in financial security, particularly in regards to stabilised accommodation, as factors that may constitute a sufficient change in circumstances. In fact in Rice and Asplund (supra) the change of stabilised accommodation in combination with re-marriage of the non-custodial wife and the child commencing school was seen as enough to justify re-opening of parenting orders.
However, in this case, the financial circumstances of the Father were not raised in the Family Report and were not a prominent or decisive matter relevant to the recommendations made by the Mediator. The reasons stated in the Family Report for recommending against time with the Father were based on his poor capacity to “provide for the emotional needs” of the child. The Mediator also expressed concern about his “lack of regard and/or understanding for the child’s age and the importance of primary attachment objects”. Financial issues were not identified as a concern or even raised as an issue. The Mediator said nothing about the Father’s poor financial situation.
I repeat that the Father told the Mediator that he was seeking residence of the child and he intended to place the child in a day care facility for three days each week and that his mother would care for the child on the other two days. In these circumstances, my view is that any change in the Father’s financial situation is not a material change that would satisfy the rule.
Conclusion
It is clear from the Father’s own admission that he appreciated the consequence of entering into the consent orders, including that he would not see the child. Yet within a short period of time after the orders were made the Father sought reconsideration of the issue of the best interests of the child.
In my opinion it is most appropriate to deal with the issue of whether there has been a change in circumstances, as a threshold question given the circumstances of this case. I have firmly come to the conclusion that none of the matters raised by the Father satisfy the rule, or for that matter that there is any other basis for setting aside or varying the orders. There is no matter raised that satisfies me that the best interests of this child should at this time be reconsidered. I have come to the conclusion that the Father’s application(s) should be summarily dismissed.
I certify that the preceding 171 paragraphs are
a true copy of the reasons for judgment
of the Honourable Justice O’Ryan
………………………………………………………..
Associate:
Date: 6 June 2007
IT IS NOTED that this judgment for all publication and reporting purposes be referred to as SKLOVSKY & GASTIN
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