TDA and TCCD (No.1)
[2003] FMCAfam 581
•21 November 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| TDA & TCCD (No.1) | [2003] FMCAfam 581 |
| FAMILY LAW – Children – residence – shared residence – change of circumstances – whether test in Rice & Asplund (1978) 6 Fam LR 570; (1979) FLC 90-215 met – family violence issues – family violence order – two children aged 10 and 5 residing with the mother. Family Law Act 1975 (Cth), ss.65E; 68F Rice & Asplund (1978) 6 Fam LR 570; (1979) FLC 90-215 |
| Applicant: | D A T |
| Respondent: | C C D T |
| File No: | BRM 9057 of 2003 |
| Delivered on: | 21 November 2003 |
| Delivered at: | Brisbane |
| Hearing date: | 20 November 2003 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Jordan |
| Solicitors for the Applicant: | Gudkovs Power Osbourne |
The Respondent appeared on his own behalf.
ORDERS
All earlier parenting orders are discharged.
The application by the father that the children C D T born 10 March 1993 and C D T born 11 February 1998 is dismissed.
The children C D T and C D T are to live with the Applicant mother.
The parties are to share responsibility for the long-term care welfare and development of the children.
The parties are to share the responsibility for the day to day care of the children when they are in each party’s care.
The father is to have contact with the children:
(a)Each alternate weekend during school term time from 5.00 p.m. on Friday to 5.00 p.m. on Sunday, commencing on Friday 28 November 2003.
(b)For half of each school holiday period excluding Christmas and Easter holidays being the first half of the school holidays in each year ending in an even number and the second half of the school holidays in each year ending in an odd number.
(c)From 5.00 p.m. on 18 December to 9.00 a.m. on Boxing Day in each year ending in an odd number commencing on 18 December 2003.
(d)From 9.00 a.m. on Boxing Day to 6.00 p.m. on the following
3 January in each year ending in an even number commencing on 26 December 2004.(e)for Easter in each year ending in an even number from 5.00 p.m. on the Thursday before Easter to 5.00 p.m. on Easter Monday.
(f)For that part of the Easter school holidays that does not include the period from the Thursday before Easter to Easter Monday in years ending in an odd number.
Contact changeover is to take place at L P, F Street, W.
The father is not to approach the mother at any contact changeover.
The father is not entitled to exercise contact on Mother’s Day.
The father is to have telephone contact with the children:
(a)each Wednesday between the hours of 8.00 p.m. and 8.30 p.m.;
(b)on their birthdays; and
(c)on Father’s Day, if that day should fall on a day when the father would not otherwise be exercising contact.
Telephone contact as set out in Order 10 is to take place by the children telephoning the father. The mother is to encourage and facilitate telephone contact.
The father and the mother are not to use insulting or abusive or offensive language to each other or about other members of their family in the presence or hearing of either of the children.
The mother is to authorise the Principal of any school attended by the children to provide to the father on a regular basis copies of all school reports, bulletins, newsletters, information about school photographs and other information normally sent to parents of children attending that school.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRM 9057 of 2002
| D A T |
Applicant
And
| C C D T |
Respondent
REASONS FOR JUDGMENT
Application
In the matter of T and T, the mother who is the applicant seeks orders for a property settlement and orders about the parties’ two children, C aged 10 and C aged five. I will deal with the property matters separately and concentrate on the children's issues in this judgment.
The orders that the mother seeks are that the children should live with her and that they should have contact with their father on alternate weekends, for half of mid-year school holidays and for a period during the Christmas January school holidays that would include Christmas Day in odd numbered years and Boxing Day in even numbered years.
The father wants a different arrangement. He says in a response that he filed on 26 March 2003 that the children should live with both parents in a shared residence arrangement. He asks that there should be an order for the children to reside with both parents with orders that each parent have contact in alternate weeks changing over at 5 pm every Saturday.
The mother opposes the shared residence proposal on two main grounds. First of all, she says that the question of residence has already been decided as recently as 25 February this year when the father consented to an order that the children should live with her.
Second, the mother says that if the Court should look at the question of residence again the present circumstances are not suitable for a shared residence arrangement. She points to the strained nature of the relationship between the parties and the fact that they live some distance apart.
The parties started living together in 1990 and were married on 29 February 1992. They have two children. C was born on 10 March 1993 and C was born on 11 February 1998. The parties separated on 28 September 2001. The father left the family home in W at the request of the mother. He now resides at L via K which he told the Court is about an hour away from W.
The mother obtained a protection order under the Domestic Violence (Family Protection) Act1989 at the W Magistrates Court on 15 October 2001. That order was varied on 15 February 2002 by the addition of two extra conditions which have the effect of restraining the father from going to the mother's home or workplace or from approaching the mother or the children except for reasons of contact with the children by means of a Court order or an agreement between the mother and the father.
The protection order was extended in February this year. It now remains in force until October 2005. The father was charged with contravening the order on 17 September 2002. On 19 February 2003 the father pleaded guilty to the charge. He was convicted and fined the sum of $500. In January this year whilst he was on bail for the earlier charge the father was again charged with contravening the order. On this occasion he was said to have taken the mother's car from a mechanic's workshop where she had left it for a service. The father told the Court that the Magistrate's Court at T found him guilty and sentenced him to six months imprisonment. He had pleaded not guilty to the charge.
He has appealed against the severity of the sentence and his appeal is due to be heard in the District Court at T in the sittings commencing on Monday, 24 November 2003. He is currently on bail.
On 25 February 2003 the parties consented to an order in this Court that the two children should reside with the mother and that the parties should share the responsibility for the long term care, welfare and development of the children. They agreed that the parent in whose care the children were at the time would be responsible for the care, welfare and development of the children on a day-to-day basis. The parties also agreed to some interim contact orders including alternate Sundays and by telephone on Wednesday evenings.
The Court made further interim contact orders on 15 April 2003 which extended the contact from Sundays only to alternate weekends. The father has since brought a contravention applications against the mother claiming that the children did not attend contact on the 5th and 16 July this year.
The mother says that the Court should not entertain the father's application for shared residence because the question of residence was decided by consent only last February. She relies on what is known as the test in Rice v Asplund (1978) 6 Fam LR 570; (1979) FLC 90-215 saying that there has not been any change in circumstances that would justify reopening the question of residence.
The mother submitted through her counsel, Mr Jordan, that if there has been any change of circumstances it would work against the father's case. By this he was referring to the father's conviction and sentence of imprisonment for a breach of the protection order. The sentence is under appeal but the conviction is not. On the other hand the father says that the change to the orders is justified by the mother's failure to comply with the current contact orders.
Even if the Court did decide to hear the residence case on its merits the mother says that the situation between the parties would not allow shared residence to work. Mr Jordan pointed to the father's two convictions for breaches of the protection order and the fact that the order has been extended for another two years. He also referred to the father's own statements in an affidavit he filed in support of his contravention application on 25 August last.
"Due to D T's family constantly harassing and antagonising me it is not a healthy environment for these children. As I am filing for shared residency and custody of the children a good working relationship between both parents is needed. A total lack of respect from D and her family is making my chances of shared residency limited."
At the hearing of the matter the mother was represented by counsel but the father was not legally represented at all. The father did not seek to cross-examine the mother. Mr Jordan, who appeared for the mother, cross-examined the father. The father in cross-examination denied that he and the mother did not have a good relationship saying it was:
"only on her behalf."
He denied denigrating the mother's family but admitted telling the child C that the mother's brother D was a "dickhead". He said that:
"Her family are not good people."
He admitted hitting the mother once and admitted that the children saw him hit her. He denied that they were scared by this action.
The father told the Court that he lived on a property at L in northern New South Wales, one hour away from the mother's residence. He did not agree that he lived in a one bedroom “donga” without any facilities as Mr Jordan described it. He said the house had facilities such as power and telephone and, in any event, he had the use of his father's house where the children could have a bedroom.
The children could travel by bus to W where they would attend school. C attends W W State School. C is at W W Pre-School but he will go on to W W State School.
The father conceded that the mother had the role of primary caregiver of the children and that the mother's mother, the children's maternal grandmother, played a major role in assisting her. As a result he only had the third most important role as caregiver but that was not his choice. He said that this only happened because the maternal grandmother “stuck her nose in” and he should have taken the secondary role because he was the children's father.
The father said that he saw advantages in a shared care relationship. The Full Court of the Family Court in a series of judgments going back to Hayman reported in (1976) FLC 90-140 has placed parenting matters in a special category of cases. The Full Court has set out a principle that a Court should not lightly entertain an application to reverse an earlier residence order. The principle was set out in a later decision of Rice v Asplund (supra).
The principle in Rice v Asplund (supra) has been followed and refined in a number of cases. The principle is set out in this way:
"The Court should have regard to any earlier material 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 invite endless litigation for change is an ever present factor in human affairs. Therefore the Court would need to be satisfied that there is some changed circumstance which would 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."
More recently there was heard the case of King v Finneran (2001) FLC 93-079. This is was appeal from a decision by Ryan FM at the Federal Magistrates Court at Parramatta. In that case Collier J sitting as the Full Court said that the Court applies the required test in this way:
"To apply the test in Rice v 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 the 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."
I have had occasion to consider the matter previously in N & M [2003] FMCAfam 29 and S & C [2003] FMCAfam 417. The principles, I believe, can be summarised in this way:
a)The onus is on the applicant who seeks to reverse some 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 v Asplund (supra). See also King v Finneran (supra)).
b)The principle is the same whether the earlier order is one made after a defendant hearing or one which was made by consent provided that the relevant issues were considered. (See Freeman (1978) FLC 91-857).
c)There is a discretion in the trial Judge or the Federal Magistrate to decide the question of a change in circumstances as a preliminary issue or to proceed to a full hearing. (See Bennett (1990) 14 Fam LR 397; (1991) FLC 92-191. See also D v 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 change to the orders only that there is real likelihood of such change. (See King v Finneran (supra) and see also D v Y (supra)).
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 is the evidence available at the time the circumstances are considered by the Court. (See King v Finneran (supra) at page 88367).
In this case the Rice v Asplund (supra) application has been heard as part of the final hearing rather than as a threshold issue. It appears to me that the father has not shown any change in circumstances since he consented to the orders made by Baumann FM as recently as February as this year, less than nine months ago. The father may well complain that the mother has contravened the contact orders since then but that is not of itself sufficient to persuade me that the children's residence should be changed to one of shared care. If an order has been contravened a party can bring a contravention application and prove his or her case. These matters are regularly heard in the Federal Magistrates Court.
I will consider, in any event, the principles that should apply in shared residence cases. It was put to me by counsel in Brisbane last year, correctly in my opinion, that there were few reported cases on shared residence because parents who could make shared residence work usually settle their cases or do not need to go to Court at all.
I have had the advantage of reading an unreported decision by Ryan FM cited as A & V [2002] FMCAfam 273 which contains in paragraph 26 of the judgment a useful list of factors that a Court should examine in cases where a party seeks orders that share a child's time equally between its parents or other people. It is not intended to be an exclusive list.
The principles set out in the decision are these:
(a)The parties' capacity to communicate on matters relevant to the child's welfare.
(b)The physical proximity of the two households.
(c)Are the homes sufficiently proximate that the child can maintain friendships in both homes?
(d)The prior history of caring for the child. Have the parties demonstrated that they can implement a 50/50 living arrangement without undermining the child's adjustment?
(e)Whether the parties agree or disagree on matters relevant to the child's day-to-day life. For example, methods of discipline, attitudes to homework, health and dental care, diet and sleeping pattern.
(f)Where they disagree on these matters the likelihood that they would be able to reach a reasonable compromise.
(g)Do they share similar ambitions for the child? For example, religious adherence, cultural identity and extra-curricular activities.
(h)Can they address on a continuing basis the practical considerations that arise when the child lives in two homes? if the child leaves necessary school work or equipment at the other home will the parents readily rectify the problem?
(i)Whether or not the parties respect the other party as a parent.
(j)The child's wishes and the factors that influence those wishes.
(k)Where the siblings live.
(l)The child's age.
Her Honour went on to say:
"This list is not exhaustive. It does not do more than set out some usual elements that a Court will consider to the extent that each may be relevant. It does not usurp the pivotal role of section 65E nor section 68F(2). Each factor fits comfortably within section 68F(2)."
Whilst this decision is not binding on me it is persuasive. With respect the principles set out in the judgment are a useful guide to Courts and practitioners considering applications for shared residence. I note also the decision in Gronow v Gronow (1979) FLC 90-716 which was a decision of the High Court of Australia. It was made clear, particularly in the judgment of Murphy J and I quote from page 78856:
"In some cases despite some switching back and forth joint custody might be a desirable solution where the parents live near one another so that schooling and other behaviour patterns are not disrupted. The theory is that although some adaptation on all hands is necessary the child does not suffer deprivation of one parent which is only slightly mitigated by access which itself may lead to artificial relationships and problems worse than those of joint custody."
In that case the High Court found that joint custody, or shared residence as it now is, was impracticable because one party lived in N and the other lived in S and also I note because of the hostility between them. His Honour went on to say:
"It may well be that the consistency and warmth of the relationship rather than the sex of the custodial parent is the governing factor in the welfare of a child."
It emerges also from that decision that then, as now, the best interests of the child is the paramount consideration.
As has been said earlier the principles in (a) and (b) do not replace section 65E or section 68F(2) nor are they meant to. There are a number of matters in this case that are relevant to the various paragraphs of section 68F(2). There is no independent evidence of the children's wishes. I note they are aged 10 years and five years. The mother's counsel submitted that the father loved the children very much and the father conceded that the mother is a good mother to the children. I am satisfied that both parents have the capacity to meet the children's physical and educational needs.
I note that there have been orders made by consent for contact in the past and I note that as recently as 15 April this year Baumann FM made further orders which extended the father's contact.
I am concerned about the history of violence in this matter. Violence issues must be considered under section 68F(2). There is an ongoing protection order and the father has two convictions for breaches of that order. There are another six allegations of breaches but they remain allegations and I do not take them into account. It is hard however to see how the parents can co-operate in a co-operative way in the light of those matters and the obvious hostility between them. The father has admitted striking the mother on one occasion in the presence of the children. He denies that the children were frightened but I find this hard to believe. I note the views expressed by the Chisholm J in the Family Court of Australia in JG v BG (1994) FLC 92-515 about the effect upon children of family violence.
I am concerned about the psychological harm which may occur to the children in witnessing violence inflicted by one parent on the other. The father is dismissive of the effects of this and does not show, to my mind, an understanding of the seriousness of the behaviour or the likely negative effect on the children.
The father's denigration of the mother's family would be unsettling and upsetting to the children. He makes no secret of his dislike for the mother's mother and brother and he describes her family as not good people.
One final aspect that, to my mind, negates the viability of any shared residence arrangement is the father's pending appeal against his sentence of imprisonment which is due to be heard by the District Court at T in the next two weeks. The father should not assume that his appeal against his sentence of imprisonment will necessarily be successful. Courts take a serious view of offences committed by people when they are on bail. There is more than a theoretical possibility that the District Court may dismiss the father's appeal and he may well go to prison.
I am not satisfied that the parties' capacity to communicate about the children and the bad relationship between them holds any real hope that shared residence would be in the children's best interests. As the children's best interests are the paramount consideration the application by the father for shared residence must be dismissed. I am satisfied that contact should continue despite the father's criticism of the mother's lack of complaints in the past.
I am of a view that the orders made on 15 April this year set out a workable framework notwithstanding the difficulties that the father says have been experienced and that orders not dissimilar should be made today. These are the reasons for my orders.
I am of a view that this is a matter where it is appropriate not only for an application for costs to be made but it is a matter where I give serious consideration to a costs order. The difficulty is however that an application for costs was not on the material available to me foreshadowed when the matter came before the Court yesterday morning and the respondent asked that he be excused. At this stage he has not had the opportunity to reply to such an application although I certainly believe that it is appropriate for an application to be made. What I would do is I would reserve the question of costs and I will allow the respondent a period of time in which to reply to the costs application by means of a written submission. So the respondent will be allowed one month from the date of provision of reasons for the decision to make a written submission to the Court as to why the application that he pay the wife's costs of these proceedings should not be granted and I will grant liberty to apply in respect of costs on 14 days notice.
I will certify as to advocacy loading. I certify this was an appropriate matter for the employment of an advocate.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: C. Soliman
Date: 8th January 2004