SS and SVS (No.)
[2003] FMCAfam 421
•12 September 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SS & SVS (No. 2) | [2003] FMCAfam 421 |
| FAMILY LAW – Children – contact – variation of consent orders – whether there is a sufficient change in circumstances – best interests of children. PRACTICE AND PROCEDURE – Frivolous or vexatious proceedings – application. Family Law Act 1975, s.118 Bennett (1990) 14 FLR 397, (1991) FLC 92-191 |
| Applicant: | SS |
| Respondent: | SVS |
| File No: | PAM 2136 of 2002 |
| Delivered on: | 12 September 2003 |
| Delivered at: | Parramatta |
| Hearing date: | 3 September 2003 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Solicitor for the Applicant: | Mrs Evans |
| Solicitors for the Applicant: | Browns the Family Lawyers |
| The Respondent appeared on his own behalf. |
ORDERS
For the purpose of orders 5(j), 5(k) and 11 made by consent in the Family Court of Australia at Parramatta on 18 March 2002, the Applicant mother may permit the children ELS, born 23 September 1996, ASS, born 23 September 1996, and ACS, born 23 September 1996, to telephone the Respondent father at his home in order to exercise contact with the father BUT the mother is otherwise restrained from telephoning the father for any purpose except in the case of an emergency, affecting the welfare of all or any of the said children.
Neither party is to criticise the other or use offensive language to the other in the presence of all or any of the said children.
All other applications are dismissed.
The application is removed from the pending cases list.
All documents produced on subpoena may be returned after the expiration of one month.
I require a transcript for the reasons of my decision.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAM 2136 of 2002
| SS |
Applicant
And
| SVS |
Respondent
REASONS FOR JUDGMENT
Application
This is an application to vary some orders made by consent in the Family Court of Australia at Parramatta on 18 March 2002. The applicant is the mother of three children, namely E, A and A, who are triplets born on 23 September 1996.
The orders sought are contained in an Amended Application which was filed by the mother on 6 August 2003. The orders that she seeks, allowing for correction of a typing error, are:
(1) That for the purposes of orders relating to telephone contact, in respect of the orders of 18 March 2002, the children shall telephone the father at the commencement of contact and the father shall provide a residential contact phone number for the purposes of such contact.
(2)That neither party shall denigrate the other in the hearing or presence of the children, and shall ensure that no third party shall denigrate the other in the hearing or presence of the children.
(3)That each party shall provide each other a current residential contact address and contact phone number, and any change in details as soon as practicable.
(4)That whilst the children are on school holiday contact with the father, the mother shall have telephone contact once per week, with the mother to telephone the children for the purpose of exercising such contact, with the father to provide a land line phone number to the mother.
The father filed a Response on 8 November 2002 in which he sought these orders:
(1)That the parties communicate in writing on all matters relating to the children.
(2)The mother shall provide a land line telephone number for the purposes of telephone contact at all time.
(3)That the mother provide adequate clothing for contact purposes.
(4)That the mother ensure that third parties do not interfere in the practical conduct of the Court's orders.
This Response actually referred to the mother's original Application in which she sought several orders that she no longer wishes to pursue. The father objected to the Amended Application, but I rule that the mother should be permitted to rely on it, rather than on her original Application. I was satisfied that the father had been given adequate notice, and that he had been given sufficient time to meet the mother's case. I would comment that the orders which were originally sought were more numerous than those sought in the Amended Application, and dealt with some subjects which Mrs Evans, who appeared for the mother, told me were no longer necessary to pursue as a result of events that had occurred since the Application had been filed.
The father filed a further Response on 19 August 2003, which was intended to proceed in tandem with the original Response, and it was not intended to be an Amended Response. In that Response he sought two orders, and I quote:
(1)I make application pursuant to section 118(1)(a) of the Family Law Act, that the Amended Application filed 6 August 2003 be dismissed.
(2)I make application for an order pursuant to section 118(1)(c) of the Family Law Act against the applicant.
The background to this matter is that the parties entered into consent orders in the Family Court on 18 March 2002. In those proceedings the father was the applicant and the mother was the respondent. Those orders discharged earlier orders which were made by the Family Court on 17 December 2001. The orders provided that the three children should reside with the mother, that the parties should share joint responsibility for the children's long term care, welfare and development, but the parties should have the sole responsibility for the day to day care, welfare and development of the children, at such times as the children were in the care of that party.
The orders went on to provide a lengthy schedule of defined contact, and a number of ancillary orders related to a variety of specific issues.
The matter did not end there. Apparently there was an error made in the drafting of the documents, and I would comment that the mother at that stage was represented by another solicitor, and not the solicitor who appears for her today. The error related to dates or commencement times for contact being incorrect, and it was sought to amend those.
I note that when that error was made known to the father, he indicated in writing that he had no objection to varying those arrangements.
The difficulty that did arise was that when Amended Terms of Settlement were prepared, the mother's then solicitor forwarded these Terms to the father under cover of a letter dated 13 May 2002. In the fourth paragraph of that letter it states, and I quote:
“You will note that I have added a non-denigration clause which will apply to both the parties. The latter has been added due to a recent incident which took place at contact changeover when you verbally abused my client”.
The father did not consent to adding that term to the orders. He maintained, and he has continued to maintain, that there was no need for an order to be made as far as his behaviour was concerned.
In due course the mother commenced proceedings by dint of her original Application, which was filed on 13 September 2002. On
17 September the father filed a Contravention Application. The matters were returnable on different days. The Contravention Application was returnable on 8th October and the Application to vary the orders was not returnable until 21 October 2002. Contravention proceedings were heard first, as is normally the practice, and those proceedings have been completed. What remains are these proceedings before the Court today.
Now, the first thing a Court should look at with an application to vary parenting orders is whether a change of circumstances has been made out sufficient to warrant reopening the parenting proceedings. The Full Court of the Family Court has, in a series of judgments, placed residence and contact matters and parenting proceedings, in what appears to me to be a special category governed by the principle that a Court should not lightly entertain an application to reverse an earlier parenting order.
The principle has been set out in the well-known decision of the Full Court in Rice v Asplund (1978) 6 Fam LR 570, where the Full Court held that:
“The Court should have regard to any earlier order, and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation, for change is an ever-present factor in human affairs. Therefore, the Court would need to be satisfied by the applicant that there is some changed circumstances 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”.
There have been a number of decisions on that principle since then, and in a case called Nicholson & Martin (2003) FMCAfam 29, I held that the principles derived from the authorities appear to be:
(a)The onus is on the applicant who seeks to reverse an earlier parenting order, to satisfy the Court that there has been a change in circumstances since the original order was made, sufficient to require the matter to be re-litigated.
(See Rice and Asplund, and also the decision of the Full Court of the Family Court in King and Finneran (2001) FLC 93-079, which was an appeal from a decision of the Federal Magistrate).
(b)The principle is the same whether the earlier order is one made after a defended hearing or one which was made by consent, provided that the relevant issues were considered.
(See Freeman (1987) FLC 91-857).
(c)There is a discretion on the trial Judge or Federal Magistrate to decide the question of a change in circumstances as a preliminary issue, or to proceed to a full hearing.
(See the decisions in Bennett (1990) 14 FLR 397, and D and Y (1995) FLC 92-581).
(d)The change in circumstances must be sufficient to warrant a re-examination of the issue, but need not satisfy the Court that those changed circumstances would result in a change to the orders, only that there is a real likelihood of such a change.
(See King and Finneran, previously referred to at page 88-368, and
D and Ypreviously referred to).
(e)The evidence of changed circumstances to be considered by the Court is not restricted to the evidence available at the time the application was commenced, but as the evidence available at the time the circumstances are considered by the Court
(See King and Finneran at page 88-367).
I would add to those principles that the evidence of changed circumstances required to persuade a Court that contact orders need to be reconsidered would not normally be as weighty as that required to reopen the question of the children's residence. The length of time that that has passed since the earlier orders were made would usually be a relevant factor.
I would comment at this stage that had an application been made early on in the proceedings, that the applicant had not complied with what is known as the test in Rice and Asplund, and that the change in circumstances would not have been sufficient to warrant reopening the question of parenting orders which had been made by consent, that I would have given serious consideration to upholding such an application.
Change is a constant and ever-present factor in human affairs, as was said by the Full Court in Rice and Asplund. The incident complained of by the mother would be one instance, and one instance only, which would not of itself necessitate reopening the proceedings. The fact that there have been contravention proceedings, whilst a factor that is not irrelevant, would not of itself be a factor that would persuade me to reopen these proceedings.
It certainly appears that the time that has passed since the Application has commenced has prevailed upon the applicant's legal advisers to modify the application that is before the Court, as is seen by the Amended Application, which covers fewer issues between the parties. The issues as I see them at this stage are:
(1)The issue of telephone contact being conducted by landline telephone rather than by mobile telephone;
(2)Whether there should be what is commonly referred to as a non-denigration order, in this case a mutual order; and
(3)Whether there should be an order providing for additional telephone contact between the mother and the children whilst the children are on school holidays with the father.
The existing orders provide for the father to have contact with the children on their birthdays, being the one day; and each Wednesday at 7 pm. The facts are that in recent months this contact has not taken place. The mother no longer has a landline telephone. The mother has a mobile telephone. The father takes the view that there should be a landline telephone, and has argued that calls to mobile telephones are more expensive than calls to landline telephones, and that he does not have the financial capacity to meet that additional expense.
I can take judicial notice of the fact that calls to mobile telephones which are based on a time that the call takes can be more expensive than local calls on a landline telephone. That said, however, I have no evidence before me as to the costs of the calls provided for in the orders, if they are made to a mobile telephone, or of the father's financial circumstances to pay them.
It is a principle in the law that the party who puts must prove. I am not satisfied that there is evidence before me which would allow me to make a finding of fact that the father does not have the financial capacity to make calls to the mother's mobile telephone for the purpose of contact.
The mother has said that the father does not wish to speak to her on the telephone, and does not wish to make his landline telephone available, and has not provided her with a home address. I will leave the question of an address for the time being. I will remain on the question of telephone calls.
There is evidence before me that the mother in fact does know the father's home telephone number. There is annexed to the father's affidavit, which was sworn or affirmed on 22nd July and filed on 8th August a transcript of a telephone recorded message taken between Wednesday 9th April and Friday 11th April 2003, in which the mother expresses a derogatory opinion of the father in a lengthy burst of invective.
I do not propose to quote the entire transcript. It is sufficient to say that the transcript begins with the words:
“Listen, you worthless piece of shit”.
I would have to say that the balance of the call is equally uncomplimentary.
The mother was also in a position to forward a letter to the father. The letter does not make it clear as to which postal address of the father the letter was sent, whether it was his work address which has been his address for service, or his home address. I would comment, however, that the letter is hardly more complimentary than the telephone call.
I do not again propose to quote from the entire letter, but it begins with the words, and I quote:
“I have shut up for long enough about crap you have thrown at me every which way, but no more. This is my response to your letter”.
Again, I would comment, the rest of the letter is no more complimentary.
I am mindful that there has been a degree of hostility between the parties which has been ongoing. I am mindful of the fact that the father says that he does not wish to speak to the mother on the telephone. The father also says that all communication has to be in writing.
It may well be that the mother has been frustrated by what she sees as intransigent, obstinate, and perhaps even unreasonable behaviour by the father. That, however, does not for one moment excuse her use of abusive language toward the father in any event. If that is the only way that parents can communicate with each other, then communication relating to the welfare of the children will be futile, and a slanging match rather than a constructive and concerned communication which bears the children’s best interests ahead of any ill feelings that either party has toward the other.
I should place on record that the telephone call and the letter, which in fairness had not been denied, do not show the mother's behaviour in a good light at all.
I would comment, however, that if the father's view is that communications between the parties should only be in writing, the letter of 10th April would hardly spare him from critical or insulting words, as the letter of 10th April was almost as insulting as the telephone call.
The father is critical of the mother, on the other hand, for failing to provide information about the children. There was an incident where one child broke her arm. The mother telephoned the father to inform him of this news and the father refused to continue the conversation. Upon seeing his children on contact some five days after the incident causing the child to suffer a broken arm, he was then critical of the mother in that she did not provide him with written advice of the injury to the child until the occasion of contact where she provided him with a medical certificate.
I can only comment that if a parent wishes to inform another parent of an injury to a child, and parents have a right to know and be notified of the welfare of their children and the occasions in which the children have been injured or are suffering from any sickness, then the quickest means of communicating an urgent situation is through a telephone call. I am of the view that the father can hardly be heard to complain if the mother's attempt to tell him by phone that the child had suffered an injury was met with such rejection. He can hardly complain that he did not receive prompt response.
The father, of course, has written to the mother in his time, and indeed there are tendered copies of the number of letters. One of them, dated 7th April, is at odds with the father's statement that he has no wish to communicate in writing at all with the mother. The third paragraph of the letter begins with the words:
“Apart from your action being discriminatory, it is not in the best interests of the children. Unfortunately, E, A and A will have to suffer as a consequence of your actions.
I have advised E, A and A of my views in respect of your actions, and I intend to reinforce my views consistently until they are old enough to advise you what they think of the mother who chose to deny them minimal contact with their father. Of course, if I cross paths with you in public, I will express my feelings further on this and other matters”.
I am of a view that the ordinary meaning of the father's letter is to the effect that the mother, if she does cross paths with him in public, can expect to receive some critical comments, and there is also evidence there which I would clearly take as the father having made critical comments about the mother to the children.
Whether or not there were grounds to make a non-denigration order at the time the Application was filed, I am of a view that the subsequent events that I have just set out are sufficient to satisfy me that I should make a mutual non-denigration order. As I stated earlier, the change in circumstances that a Court must look at is the evidence available at the time the circumstances are considered by the Court. The change of circumstances as far as the non-denigration order are concerned have clearly arisen. I am convinced that a non-denigration order is warranted in this case, and I do propose to make an order in those terms.
Is there a ground to require the father to make known and continue to make known his current residential contact address and contact phone number, and any change in details as soon as practicable? The father would say that there is not, and that he has provided a mobile telephone number which could be used in case of emergencies. It is not his own mobile telephone number, it is the mobile telephone of a friend or acquaintance who was in a position to relay a message to the father, presumably at short notice. That may or may not be sufficient to deal with any emergency.
The situation is, however, that the evidence shows that the mother does know the father's home telephone number. She rang him on it in the month of April and left a highly insulting message on the answering machine. Is the mother now in a position where she does not know the father's home address? I am of a view that she cannot say that. That may have been the case when she filed the Application, but on 8th August the father filed an affidavit in which he gave his address as 6/8 R Street, W.
In his evidence to the Court on the hearing day he did not resile from the fact that the address noted in his affidavit is his current residential address. The reality is that by the time the matter had come on for hearing, but well beforehand, the father had made no secret of his residential address. Notwithstanding the degree of hostility between the parties, is there then evidence which would be sufficient to pursued me, on the balance of probabilities, that the parties should be required to advise future residential addresses and telephone numbers? I am not satisfied that there is.
The mother knows the father's phone number and home address. She knew it at the date of the hearing. She might not have known it when it commenced, but she certainly knew it by the time the matter came to the hearing, and there is no evidence before me that the father would go out of his way to keep that a secret. The father had indicated that the mother should have a landline telephone for the purposes of equity.
I am not satisfied that I should make that order.
The overriding principle I must consider is the best interests of the children. There is no evidence put to me that contact between the father and the three children is not in their best interests. It was clearly the intention of the parties, when they negotiated the settlement of this matter at the Family Court when the mother was legally represented, that the father would be able to speak to the children on a regular basis and on the occasion of their birthday. I must take it that the arrangement made at the time was for the best interests of the children.
There is nothing before me to show any departure from that. It is regrettable that the degree of hostility between the parties leaves the children in a position where at this stage the children are not having the benefit of speaking to their father on the telephone at least once per week.
I recall commenting in a somewhat exasperated side on the day of the hearing, that the father would perhaps have taken a less intransigent view of the call that had been on his answering machine back in April, had been called from one or other of the children inquiring after his welfare, rather than the burst of abuse from their mother.
I am convinced that it would be in the children's benefit to speak to their father on a landline telephone, but that is a right that should be given to the children and the children seem to me to be of an age where they would be able to speak to their father on the telephone without interference from a third party.
I then get to the Application by the father contained in his latest Response, to deal with the mother pursuant to section 118 sub-section (1) of the Family Law Act1975. Subsection 118(1) relates to frivolous or vexatious proceedings. Subsection (1) says:
The Court may at any stage of proceedings under this Act, if it is satisfied that the proceedings are frivolous or vexatious:
(a) Dismiss the proceedings.
(b) Make such order as to costs as the Court considers just.
(c) If the Court considers appropriate on the application of a party to the proceedings, order that the person who instituted the proceedings shall not, without leave of the Court, having jurisdiction under this Act, institute proceedings under this Act of the kind or kinds specified in the order.
The father seeks orders under paragraphs (a) and (c), namely that (a) I should dismiss the application; and (b), if I consider it appropriate, order that the applicant should not without leave commence any other proceedings under the Family Law Act.
A vexatious litigant has been defined as a person who persistently and without reasonable grounds sues or prosecutes others. The definition can be found in Osborn’s Concise Law Dictionary, 8th edition printed in 1993.
In the decision of the Full Court in Zabaneh (1986) 11 Fam LR 167, and FLC 911-766, Evatt CJ said:
“ That it is the intention of this section that the Court may make an order restraining a vexatious litigant from instituting unnecessary and harassing proceedings against the other party. The purpose is to protect the respondent from being brought to Court”.
The Courts are normally reluctant to invoke a power to discharge proceedings because they are frivolous or vexatious. As a general principle a party is entitled to have his or her day in Court, and the chances of success or failure must not be prejudiced: General Steel Industries Incorporated & The Commissioner for Railways (NSW) (1964) 112 CLR 125, and Dey & Victorian Railways Commissioners (1949), 78 CLR 62 at page 9.
The power to make an order under section 118(1)(c) can be exercised only where the proceedings before the Court, or which have just been dismissed, are frivolous or vexatious: Vlug & Poulos (1997) 22 Fam LR 324, FLC 92-778.
The power to make an order under section 118(1)(c) is limited to preventing the institution of proceedings, and does not extend to staying proceedings which have already been brought, or the bringing of an appeal in such proceedings.
Mrs Evans for the mother points out to me that in the immediate proceedings before me, true it is that the mother is the applicant, but in the earlier proceedings in which the orders of 18 March 2002 were made, it was the father who was the applicant. There have been contravention proceedings which were filed on 17 September 2002, and in that case the father was the applicant. The only proceedings before me which the mother appears as the applicant are these proceedings.
It would be hard to say on the basis of one application that the mother is a person who persistently sues or prosecutes others. In any event, whilst I have not acceded to all the applications in the mother's amended application, her application has not been wholly unsuccessful either. It has not been dismissed. In view of the authorities and the circumstances of this case therefore, I find that it is not appropriate for me to dismiss the mother's application under sub-section 118(1)(a), nor to make an order, therefore, under sub-section 118(1)(c), restraining the mother from instituting any proceedings in the future.
It is for these reasons that I propose to make the orders set out at the commencement of this judgement.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: C. Soliman
Date: 17 September 2003
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