Stinson and Field - [2007] FMCAfam 53

FEDERAL MAGISTRATES COURT OF AUSTRALIA

STINSON & FIELD

[2007] FMCAfam 53

FAMILY LAW – Children – change of residence and associated orders – threshold issue concerning whether the application may in fact be re-litigated – a parenting order should only be entertained where there is a significant or substantial change in circumstances.

Family Law Act 1975 (Cth)

In the Marriage of Bennet (1991) FLC92-191
Bolitho & Cohen (2005) 33 FAMLR 471
D & Y (1995) FLC 92-581
King v Finneran (2001) FLC93-079
Rice v Asplund (1978) 6 FAMLR 570

Applicant:

MR STINSON

Respondent:

MS FIELD

File number:

BRM 10514 of 2005

Judgment of:

Burnett FM

Hearing date:

19 December 2006

Delivered at:

Brisbane

Delivered on:

26 April 2007

REPRESENTATION

Counsel for the Applicant:

Mr Hamwood

Solicitors for the Applicant:

Simonidis Shoebridge Lawyers

Counsel for the Respondent:

Mr Smith

Solicitors for the Respondent:

Kelly & Agerholm

ORDERS

That the application be dismissed.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BRM 10514 of 2005

MR STINSON

Applicant

And

MS FIELD

Respondent

REASONS FOR JUDGMENT

Introduction

In this proceeding the Applicant, Mr Stinson (the Applicant) seeks residence and associated orders in respect of children of his marriage to the Respondent, Ms Field (the Respondent). The children are [X] born in 1994 and [Y] born in 1998.

Orders sought

The Applicant seeks orders that the children live with him; orders that the parties have the long term responsibility for the care, welfare and development of the children; that the parties have the day to day responsibility for the care, welfare and development of the children whilst the children are in their respective care; that subject to agreement the Respondent have contact with the children every second weekend between after school Friday until 7.00pm Sunday as well as standard orders in respect of holidays. There are further orders proposed of the usual kind in a contact application. Curiously the Applicant’s further amended application makes no mention to consent orders made by the Court on 16 January 2001 concerning residence and contact arrangements for the children.
In her further amended response, the Respondent seeks orders that the application be dismissed or alternatively that the orders made

16 January 2001 be discharged and proposes a regime that strictly regulates contact and in particular provides for there to be contact by the Applicant with the children for two weekends out of every three weekends on different hours than those provided for in the consent orders; a stricter regime in respect of holiday handovers and contact time; additional orders in respect of contact revolving about extra-curricular or school activities on weekends; telephone contact by the children with the Respondent on occasions where the children are enjoying contact rights with the Applicant; more detailed orders in respect of notification of health, welfare and school information; removal of the children’s names from the PACE alert system; orders in respect of attendance at religious services; orders restraining the removal of the children from the Commonwealth without the consent of the parties; and orders dealing with notification of current postal address for communication.
Each party also seeks orders in respect of costs.
The issues arising in the proceedings can be summarised:
a)a threshold issue concerning whether the application may in fact be re-litigated;
if the matter may be re-litigated;
b)what residence arrangements should be put in place;
c)what contact arrangements, including incidental arrangements should be put in place.

Background

The parties to the proceeding were married in March 1994. The Applicant is 48 years of age (born in 1957) and the Respondent 36 years of age (born in 1969). The children were born during the course of the marriage and prior to separation. The Applicant and Respondent separated on 6 December 1999.
Following separation the Respondent left the children at the matrimonial home with the Applicant. The children resided there for about two and a half months before the Applicant took up employment in Sydney on 24 January 2000. At that time the children had been living with the Applicant and the Applicant’s parents. Following the Applicant taking up employment in Sydney, the children continued to reside at the Applicant’s parent’s place until the matter was resolved by interim orders issued by the Court on 26 April 2000 ordering the children to reside in the day to day care of the Respondent and for the Applicant to have supervised contact at the Logan West community centre. At that time a child representative was appointed. I note in passing the Respondent’s affidavit provides a slightly different version with her asserting that she separated on 4 December 1999 when she left the former matrimonial home with the children and moved into an apartment. She says that initially she left most of the children’s belongings at the home and went back to the home over the following couple of weeks to gradually gather those belongings[1]. Nothing turns on this difference of recollection.
[1] Affidavit of Ms Field filed 28 September 2006 paragraph 15
The matter proceeded to trial and final orders were made 16 January 2001 in terms noted above.
It seems that between the making of those final orders and approximately April of 2005, matters progressed in the ordinary course. The Applicant says that during that period he enjoyed contact broadly in accordance with the orders and that contact occurred regularly without incident.
In April 2005 the children’s maternal grandparents took them for a holiday to Hungary. They returned in mid June 2005 shortly after which time they then enjoyed the mid year holiday with the Applicant.
On 2 July 2005, the children were returned by the Applicant to the maternal grandparent’s (Respondent’s grandparents) home. The Applicant says that at that time he received a call when he was leaving that residence and requested to meet the Respondent at the Hyperdome shopping centre at Logan. He acceded to that request and proceeded to the Logan Hyperdome where upon arrival he saw the Respondent with a man called Mr F. At the meeting the Respondent informed the Applicant that she had been seeing Mr F for some time and that she and Mr F were planning to move to Spain to live there for three years. She requested the Applicant permit the children to travel to Spain accompanying them and sought to persuade him of the advantage of that opportunity. The Applicant refused outright and immediately left. Following that meeting and for some time later the Respondent continued to ask the Applicant on the telephone and in person if he would reconsider his decision. She complained that on every such occasion he refused to reconsider or make any effort to do so. The Applicant’s interpretation of these requests has been to note that “since then every changeover I have been harassed in front of our children with respect to my consent to allow the children to live in Spain”[2].
[2] Affidavit of Mr Stinson filed 23 December 2005 at paragraph 49
Broadly it appears that the Respondent formed a relationship with Mr F in about March 2005 and it appears that the relationship very quickly became quite serious. Mr F is a technical documentation officer and had ten years previous experience as an electronics/avionics technician in the RAAF. He had been offered a contract to work for a large aerospace and defence company in Spain for three years commencing September 2005 until October 2008. The opportunity was a good one and he wished to take advantage of it and also maintain his newly developed relationship with the Respondent.
Clearly there was some pressure upon the parties to resolve this matter quickly given that if the children were to accompany Mr F and the Respondent to Spain only about two months was available to make the necessary arrangements and to ensure the children arrived in Spain in sufficient time to commence school in the European school year.
As the Applicant was not prepared to permit the children to leave the country this did not occur and subsequently Mr F proceeded on his own to Spain.
In the meantime the Respondent’s anxiety to persuade the Applicant to her view did not abate. She instructed solicitors who she caused to write on her behalf making a formal request. The Applicant remained unpersuaded.
In December 2005 Mr F returned to Australia for a three week holiday during which time the Respondent and he were married. An added complication which would also have been apparent at that time was that the Respondent was then pregnant to Mr F. Their child was born in April 2006.
It was against this background that the Applicant filed his application in the Court on 23 December 2005 seeking the orders proposed above. Interim orders were made on 17 February 2006 which were essentially in accordance with the 2001 orders with some minor variations. An order was also made for the preparation of a family report as to residence and relocation.
In the meantime however, the delay occasioned by the Applicant’s refusal to consent to a relocation; the need for a Court determination; and, finally because of the expense involved in maintaining two households across the globe led the Respondent and Mr F to determine that Mr F should terminate his contract prematurely. It appears that he did so and has now returned to Australia. Although neither party has provided any express evidence concerning the date of the return of

Mr F, it appears by reference to the affidavit of the Respondent filed

28 September 2006
that it occurred sometime shortly before it’s swearing[3].
[3] See paragraph 63
Following the orders made in 2001 there appear to have been a number of relocations before the children commenced living in residence with the Respondent in a large four bedroom home which was shared with the Respondent’s sister, her husband and their young child. During that time the children shared a bedroom and each of the children and the Respondent shared a bathroom. Following Mr F’s return from Spain the Respondent, the children and Mr F have moved into rented premises near the school the children attend. The house is a modern four bedroom house with all the usual amenities and each of the girls have their own rooms.
It appears that since the original separation of the parties and following the orders of 2001, contact has been exercised by the Applicant on a regular basis.

Preliminary Point

At the outset of the trial the Respondent contended that there should be determined as a preliminary issue the matter of whether or not there had been a sufficient change of circumstances to warrant a rehearing of the residence and contact issues. This threshold or preliminary argument was premised upon the principle annunciated in Rice v Asplund (1979) FLC90-725. Given the limited material read at the trial together with the estimates of Counsel suggesting that the trial in any event would have been concluded in a matter of hours, even if contested, I reserved my decision on the threshold issue because it seemed apparent that in order to examine that issue there may possibly have been a need to consider the merits in any event. This approach is consistent with principle. See In the Marriage of Bennett (1991) FLC92-191 at 78, 262.
The most recent authoritative statements concerning the application of the principle in Rice & Asplund is to be found in Bolitho v Cohen (2005) FLC93-244. Although that appeal concerned an appeal against interim orders, the orders under review were final orders consented to by the parties some five years previously. In that respect, the facts of that case were very similar to the proceeding now before me.
In adopting the statement by the trial Judge in the case under appeal, the Full Court noted with approval his exposition of the law as follows:
“10.In the Full Court of the Family Court of Australia in Rice v Asplund (sic) (1979) FLC 90-725, Evatt CJ with whom Pawley SJ and Fogarty J agreed stated at 78,905 that:
“The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that, 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…”
11.This decision has been affirmed in a number of cases and the general principle is that a fresh application for a parenting order should only be entertained where there is a significant or substantial change in circumstances. In D and Y (1995) FLC 92-581 at 81,764 the Full Court held that a trial judge has the discretion to determine whether there is a change in circumstances as a preliminary issue or to proceed to a full hearing.
12.More recently in King v Finneran (2001) FLC 93-079 Collier J held that amendments to the Family Law Act in 1995 requiring a full inquiry of the matters set out in s 68F do not disturb the discretion of the trial judge to make a threshold determination whether to proceed to a full hearing, stating at 88,367:
“41. The rule in Rice and Asplund is a rule evolved to protect children from involvement in further unnecessary litigation. To require a court to make a detailed determination of the matters set out in section 68F would defeat the purpose of that protection. It would mean that before the matter could be dealt with, a complete hearing, or …at least a hearing dealing with the section 68F factors, would have to be undertaken and completed.”
13.The decision of Collier J in King v Finneran also provides further insight into the nature of the change required to warrant consideration of a fresh application, at 88,368, his Honour said:
“50…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.”[4]
[4] Bolitho & Cohen (2005) 33 FAMLR 471 at paragraph 20
Since the Full Court’s decision in Bolitho & Cohen there have been further amendments to the Family Law Act. The further refinements of Division VII of the Family Law Act (which in part included the repealing of section 68F and a restatement in section 60CC) likewise do not impact on the application of the principle in Rice & Asplund for the same reasons identified by the trial Judge in Bolitho & Cohen. I consider I am bound by those principles.
It follows that the principal issue for determination concerns the issue of what constitutes substantial change in circumstances for the purpose of successfully traversing the threshold. In Bolitho & Cohen the Court considered with approval of the principles espoused by Collier J. in King v Finneran (2001) FLC93-079 the Court stated:
[44] “In King v Finneran, a case decided after the Family Law Reform Act 1995 (Cth), Collier J, when discussing the nature of the change required to warrant further consideration of a fresh application at 88,368, said:
[50]“The words in any event are not words of necessarily strict dictionary definition. 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 (sic) 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.” ”[5] (Emphasis mine.)
[5] Bolitho & Cohen (2005) 33 FAMLR 471 at paragraph 44

Proposed Relocation Application

In his submissions Mr Hamwood for the Applicant identified nine matters that he contended supported a review of the Court’s earlier orders. Those nine matters generally fall into three categories and are dealt with below:
a)Unilateral change of residence from Gold Coast to Brisbane
Whilst it is factually correct that the Respondent has relocated on a permanent basis from the Gold Coast region to Brisbane, the physical proximity of the two regions is such that relocation between or within them is not significant in the current context. The physical relocation itself has not been productive of extraordinary disadvantage, although undoubtedly less convenient than previously. Matters of communication appear more germane to this dispute. Relocation within this provision would not move the Court to consider a review of the orders.
Another matter which is advanced by the Applicant in support of a change of circumstances concerns the number of school relocations effected. Whilst it is undeniable that endless relocation of schooling is undesirable it is in this case reasonably explicable. As deposed to by the Respondent in her affidavit the first two schools were private schools in respect of which the Applicant was to assist in the payment of education fees. He failed in that regard and the child was withdrawn from the schools. As the withdrawal appears to have occurred part way through a school year the child was removed to a local State school. Later that year the Respondent relocated to Brisbane and the child was transferred to a Brisbane school. It was her third school that year. The following year 2002 the child was again relocated to another school because the Respondent believed it to be a better school. She remained at that school until her most recent relocation. The fifth school was the high school to which she subsequently progressed after primary school. In my view it is difficult to be unduly critical of the Respondent having regard to those matters.
The Applicant’s application was precipitated by the foreshadowed relocation application to be made by the Respondent. In the result the Respondent did not proceed with any such application and accordingly there has been no change of circumstances in that regard. Indeed even before such a prospect was enlivened, the Respondent withdrew her threatened application and it follows the Applicant’s application did not require resolution even on a “hypothetical” basis.
The principle change contended for by the Father is that since July 2005 the Father’s relationship with the children has been disturbed to its detriment and that his capacity to continue with a meaningful relationship has also been detrimentally affected by reason of the Respondent’s conduct in particular her expressed intention to relocate to Spain. In part the Applicant’s view of this matter has been influenced by a change in contact arrangements. Whilst Court orders are in place it seems that prior to July 2005 matters had evolved between the parties such that greater flexibility had been introduced into their residence and contact arrangements. In particular it seems that the parties had agreed for contact to take place on hours beyond those which had been the subject of initial orders.

Following the disagreement which arose between the Applicant and Respondent in July 2005 the Applicant complains that the Respondent has now reverted to a contact regime which strictly complies with the consent orders[6]. More recently the Applicant complains that in October 2005 he received a phone call from his eldest daughter stating that she did not wish to “talk to you or see you anymore” unless she was permitted to go to Spain[7]. That continued to be the position as at December 2005.
[6] Affidavit of Mr Stinson filed 23 December 2005 paragraphs 64 to 71.
[7] Affidavit of Mr Stinson filed 23 December 2005 paragraph 74.
By the time of the trial matters had changed and the Applicant was exercising contact rights although he swore that since he had said no to the relocation to Spain, the children had continually said they did not want to see him[8]. In cross examination the Applicant did concede however that as time had elapsed since the relocation issue in July 2005, things had gotten better. Likewise in cross examination when questioned about the impact of relocation he conceded that prior to the discussion of relocation, there was no question of alienation between he and his daughters. He agreed that the discussion of relocation did give rise to difficulties and accepted that relocation was no longer an issue. Despite that when asked whether there was any reason why things could not revert to their former state, he expressed a view in the negative. In this regard I did find the Applicant’s attitude somewhat perplexing given all the evidence indicated that matters had now settled down. No doubt his view was in part affected by the attitude of his daughters which in turn may have been influenced by the Respondent’s disappointment in as much as their own in the loss of the opportunity to relocate to Spain for three years. In any event all parties now recognise that relocation will not occur particularly as Mr F has since terminated his contract and returned to Australia. The matter should now be behind them.
[8] For instance, the Applicant gave evidence concerning difficulties which followed in respect of a birthday party which the children wished to attend rather than their usual contact visit.

Communication issues/Promotion of Relationships

The issue of communication was also touched upon by the family reporter, Jeremy Parker. When reciting the relevant history he noted that in the original family report by Ms Johnson dated 15 August 2000 she made recommendations after having assessed that the Respondent was “openly hostile to the father’s involvement with the children extending beyond supervised contact”. He noted that Ms Johnson reported “(the Respondent) would not support or encourage their (the children’s) healthy relationship with (the Applicant) and there are some indications that she has been actively sabotaging it.”[9] At the time of his interview and report he observed that the Respondent continued to be wanting in her ability to foster a positive relationship between the children and the Applicant. Indeed he was so concerned that he noted that having regard to those issues led him to “seriously consider whether (the Respondent’s) influence over the children is detrimental to the children’s relationship with (the Applicant)”[10]. He expressed the view that a change of residence might be warranted where there has been damage to a child due to parenting incompetence or where the resident parent cannot meet the needs of the child. At the time of his report he noted that notwithstanding there had been deterioration of the child’s relationship with the Applicant there had not been any other damage to the children. He considered that as the deterioration of the relationship had only been recent it was likely that that deterioration was repairable as the children did have attachments toward the Applicant which illustrated a loving and close relationship[11]. At the time of his report he considered that further deterioration had been arrested by reason of the Respondent’s relationship with Mr F but indicated that a change of residence would be indicated if there was a further reduction of the relationship between the children and the Applicant caused by the Respondent’s negative influence[12].
[9] Affidavit Jeremy Parker filed 25 September 2006 paragraph 12.
[10] At paragraph 71.
[11] At paragraph 130.
[12] At paragraph at 132.
In his report of May 2006 he expressed some pessimism concerning the Respondent’s ability to monitor her expression so that it did not impact on the children. He considered that the children would perceive their Mother’s negativity and in turn direct it on to the Applicant which would not assist in building a healthy and strong relationship between the children and the Applicant[13]. However at that time he was clearly not so persuaded that the risk was such that the residence and contact arrangements should have changed. Indeed he recommended that subject to certain conditions the children be permitted to relocate to Spain with their mother.
[13] At paragraph 142.
In a more recent report prepared on 20 November 2006 he reviewed the situation. By that time the Respondent had withdrawn her foreshadowed application for relocation. For the purpose of preparing that report he observed interaction between the Applicant and the children. He noted that this was required in particular “to ascertain whether or not there had been an improvement or deterioration in the relationship between the children and (the Applicant).”[14] His observations were generally positive with him noting that there was nothing from the session to suggest that the relationship between the children and their father had deteriorated. This however was quite contrary to the Applicant’s perception of his situation. He believed that the relationship with his children was likely to continue to deteriorate due to pressure by the Respondent. This was contrary to the report writer’s conclusion wherein he “assessed for this report the children’s relationship with (the Applicant) has indeed improved although (the Applicant) disputes this.” Indeed noted that the children appeared more relaxed which was in his view a result of the Respondent being more relaxed and less stressed.
[14] Family Report dated 20 November 2006 at paragraph 53.
The evidence of the report writer appears to suggest that nothing has changed since the original assessment provided by Ms Johnson in 2000 prior to the making of final orders. If anything there may have been some minor improvement although it is not possible to affect any empirical assessment of that matter.
The matter of poor communication was in fact identified by the family reporter, Mr Jeremy Parker. For instance in his initial report filed

25 September 2006
he made the observation that he found the Respondent “to be wanting in her ability to foster a positive relationship between the children and their father”[15]. In his report the family report writer noted a number of other matters which led him to “seriously consider whether (the Respondent’s) influence over the children is detrimental to the children’s relationship with their father.”[16] In particular he noted that that was a concern identified in the Family Report prepared by Ms Johnson in 2000 prior to the final orders made in 2001. It is in my view worthy of note that Mr Parker made that observation for it reveals that to that end it seems unlikely that matters have significantly changed in respect of that one issue since the earlier orders.
[15] Family Report filed 25 September 2006 paragraph 69.
[16] Family Report at paragraph 71.
In any event Mr Parker made other observations which suggest for instance that although the prospect of relocation was a source of difficulty between the parties and had led to the deterioration of the children’s relationship with the Applicant, he considered there had not been any other damage to the children. He considered the deterioration of the relationship to have been recent and likely capable of repair[17]. Although he did also note that if there was a further reduction of the relationship between the children and the Applicant and that that reduction was caused by the Respondent’s negative influence, such would suggest that the Respondent was unable to meet the children’s long term needs and a change of residence might then be warranted[18]. Clearly however at the time of his report he did not consider that to be the case for his conclusion was at that time to recommend permitting the relocation. However the Respondent would be on clear notice by reason of his observations that continued negativity on her part towards the development of any relationship between her children and the Applicant could give occasion for the need for reconsideration of that opinion.
[17] Family Report at paragraph 130.
[18] Family Report at paragraph 31.
In his more recent report dated 20 November 2006 he particularly examined the relationship between the Applicant and the children with a view to ascertaining whether there had been an improvement or deterioration in the relationship between the children and the Applicant[19]. He concluded that in fact there had been no deterioration although I note that was contrary to the report by the Applicant to

Mr Parker[20]. Indeed Mr Parker assessed that the children’s relationship with the Applicant had improved which he concluded was a result of the Respondent being more relaxed and less stressed[21].
[19] Family Report filed 20 November 2006 at paragraph 53.
[20] Family Report filed 20 November 2006 at paragraph 56.
[21] Family Report filed 20 November 2006 at paragraph 68.
From the evidence it would appear that despite the Applicant’s complaints that the mother would not promote a relationship between the children and the Applicant; that it would continue to denigrate him to the children and that thereby the children would lose their relationship with him; those complaints did not appear to be borne out by the objective evidence. At the very least it would seem that the position has not advanced since that which was reported by the family reporter in 2000.
Aside from those two matters the only other significant change in the circumstances of the parties concerns the relationships which have been formed by each of the Applicant and the Respondent. There is nothing exceptional about either the Applicant or the Respondent in respect of those relationships. There is no suggestion that the relationships are dysfunctional or attended by any unacceptable characteristics. In my view it is to be expected that following the termination of one relationship parties will seek and ultimately settle into another relationship. In the absence of any peculiar factors relevant to that subsequent relationship, the matter of another relationship would not have of itself constitute a significant or substantial change in circumstances.
The Full Court in Bolitho & Cohen was unequivocal in its adoption of Collier J’s observations in King v Finneran as noted above. In particular the Court does not appear to have cavilled or further explained Collier J’s observations that “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 partnering issue in dispute between the parties” as the appropriate test.
In this case only two matters are advanced as justifying the change of circumstances. Perhaps the most substantive of those matters concerns the prospect of deteriorating communication. The evidence however does not support such a conclusion. Undoubtedly whilst the parties were in conflict concerning the prospect of relocation communication between the parties was poor. That matter however has passed and it could not be said that the state of communication between the parties is any worse than that which was obviously apparent at the time the final orders were made in 2001. The other matter contended for concerning the change of schools is more in the nature of an operational matter. In any event it is one where there is in my view a reasonable and justifiable excuse explaining those matters. That excuse in part has its justification in the difficulties caused by the Applicant’s conduct. It all behoves the Applicant to rely upon a matter which was in part induced by his own behaviour.
In my view the evidence does not demonstrate a change or fresh circumstance which satisfies the threshold test provide for in Bolitho & Cohen. It follows that consistent with that principle I should not revisit the issue of residence applied for by the Applicant.
The mother also seeks a variation of the orders made 16 January 2001 as amended by consent orders made 17 March 2006.
The essence of the variations sought by the Respondent relate to the extent of weekend contact which had previously been the subject of consent orders and also the extent in terms of holiday contact particularly during the course of Easter and at Christmas.
In the absence of any change or fresh circumstance which could be raised to leave the Court in no doubt that it was necessary to relitigate the parenting issue in dispute between the parties being demonstrated by the Respondent, it is my view that the threshold test has not been satisfied. It follows the Court should not interfere with the consent orders made 16 January 2001 and varied 17 February 2006.

Conclusion

The Applicant has sought to vary the terms of orders concerning contact and residence. Those matters were the subject of orders made by consent on 16 January 2001 and varied by orders made by consent on 17 February 2006. The Applicant has not discharged the onus placed upon it to demonstrate that there has been a change or fresh circumstance enlivening the Court’s duty to commit the parties to relitigate that issue. Likewise the Respondent too seeks variations of those orders. She too has failed to discharge the onus imposed upon her in that regard.
It follows that the application and the cross application should be dismissed. By reason of my determination on those matters it is not necessary for me to consider the merits of the applications generally or at all.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Burnett FM

Associate: Bev Schmidt

Date: 26 April 2007