Terry and Mammone

[2013] FCCA 1587

FEDERAL CIRCUIT COURT OF AUSTRALIA

TERRY & MAMMONE [2013] FCCA 1587

Catchwords:  
FAMILY LAW – Application to re-open parenting dispute – Rule in Rice v Asplund – proceedings finalised in 2011 with father exercising day-time only time-spent on 2 out of 3 weekends – father relocates to Melbourne – failure by him to address in his affidavit material reasons why he relocated or problems with his parenting described in 2011 judgment.

Rice v Asplund (1979) 90-725
Prewett & Mann (2013) Fam CAFC 130
SPS & PLS (2008) FLC 93-363
Cortes & Cabrera [2007] FMCAFam 293

Applicant: MR TERRY

Respondent: MS MAMMONE

File Number: ADC 3389 of 2009

Judgment of: Judge Lindsay

Hearing date: 31 May 2013

Date of Last Submission: 31 May 2013

Delivered at: Adelaide

Delivered on: 16 October 2013

REPRESENTATION

Counsel for the Applicant: Self Represented

Counsel for the Respondent: Ms Gilbert

Solicitors for the Respondent: Gilbert & Mattner

ORDERS

1. That the application of the father filed on 7 December 2012 be dismissed.

2. The Response of the mother filed on 6 February 2013 be dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 3389 of 2009

MR TERRY

Applicant

And

MS MAMMONE

Respondent

REASONS FOR JUDGMENT

1. The mother in these proceedings asks me to dismiss the application of the father in accordance with the Rule in Rice v Asplund (1979) FLC 90-725.

2. The application by the father of two children X born (omitted) 2002 and Y born (omitted) 2005 (hereinafter “the children”) is for orders varying the terms and conditions of Orders upon which he exercises time-spent with the children.  He essentially seeks orders that he be entitled to spend time with the children for all of the non-Christmas school holiday periods and for three weeks of the Christmas school holiday period.

3. The application arises from the circumstance that he now lives in Victoria and that he lived in Adelaide when final orders were made in parenting proceedings relating to the children by this Court on 10 November 2011 (which judgment and the Reasons given therefore are both hereinafter referred to as “the judgment”). 

4. The existing orders provide for him to exercise time-spent with the children on two out of three weekends for one day on such weekends and on a day time only basis. 

5. I will refuse the application and leave the existing orders in operation.  These Reasons are my explanation for why I do so.

6. The trial of the proceedings which led to the judgment commenced in March of 2010 and did not conclude until September of 2011. 

7. At the heart of the judgment were my concerns in relation to the stability of the father’s lifestyle, particularly, but not limited to, his accommodation and itinerance.

8. I do not propose to traverse in detail the judgment.  It speaks for itself.  I do, however, highlight the following passages which articulate those concerns: 

   [73]  I am trying at this point to give some idea of the extent to which the conduct of the trial was overshadowed by the vagaries of the father’s accommodation and personal circumstances. These circumstances never really allowed him to get a foothold with respect to the conduct of the proceedings. I was in as profound state of uncertainty about his personal circumstances at the end of the trial as at the beginning.

   [78]  It is going too far to characterise the chaotic circumstances of the father’s life as exposing the children to harm. I would prefer to say that the evidence persuaded me that it had the potential to disadvantage and destabilise the children.

   [92]  Mr Terry does not have an appropriate capacity to provide for the physical, emotional and intellectual needs of the children because of the high degree of instability in his life. In cross-examination by Mr Terry Mr M was asked whether it would be in the best interests of both parties to put the conflict behind them and “work together”. Mr M’s response was to say:

   Before parents can work together they need to have structured and organised lives. As a parent who should be committed to the children you are not presenting an organised, responsible, structured life. For you and Ms Mammone to work together she doesn’t have confidence in you because of the nature of your lifestyle and how you live your life.

   [101]    Since separation the mother has received minimal financial assistance from the father but considerable assistance from her own parents. Mr Terry has failed to fulfil his obligation to assist in maintaining the children in this period by failing to secure adequate and stable employment. He gives every impression of being a resourceful individual but one whose inability to accept responsibility for his circumstances deprives him of an opportunity to move forward constructively in his life. This has disadvantaged his children.

   [104]    The father’s evidence left me with no confidence in his capacity to make decisions about his own life which would put him in a position to provide stable and predictable lives for the children if he were to exercise responsibility for them.

   [107]    At the conclusion of the evidence there was no basis for the Court to make any assumption that the accommodation that the father had procured would be of long standing or, in fact, that it was satisfactory. Neither the Court nor the mother would know with whom (if anyone) the father was sharing such accommodation and whether it was of a satisfactory standard in terms of cleanliness and comfort. It is not appropriate to experiment with the welfare of the children by making such an assumption. The only safe way to proceed is to continue arrangements which see his time-spent occurring on a day only basis.

9. As indicated above this application is brought in circumstances where the father has relocated to Victoria.

10. He supported his application on this occasion with an affidavit filed on 7 December 2012.

11. In that affidavit the father says at [3]:

    I say there has been a considerable change of circumstances since the current court orders where [sic] made.  Namely my relocation from South Australia to reside at my parents family home in Melbourne.

12. Nowhere in the affidavit does the father address the following matters:

    i)Why did he relocate from Adelaide to Melbourne?

    ii)Why is he living with his parents in the “family home” in Melbourne?

    iii)How long does he propose to live in Melbourne?

    iv)Has he secured employment there?

    v)What kind of accommodation does the “family home” in Melbourne provide?

13. These are all matters which the Court which would have expected his affidavit to address given the explanation given in the judgment for the terms of the time-spent order that was made. 

14. The mother opposes his application to re-open this parenting dispute.  She disputes his claim as to the closeness of the childrens’ relationship with the extended paternal family; she gives an account of occasions on which the father fails to exercise time-spent from the end of October 2012 onwards and his announcement in November 2012 that he intended to reside in Melbourne.  She says that he did not advise her (or the children) of the reasons for the move.

15. She says that there was a further change in accommodation in Adelaide following the date of delivery of judgment and that on that occasion he misled her as to the location of the address to which he had moved.

16. She says that the maternal grandmother drives the children in the motor vehicle whilst being unlicensed.

17. She says that his telephone communication with the children has been haphazard.  She gives details of her attendance with the children in Victoria for the (omitted) Tournament in which X was participating in January 2013.  She advised the father of the dates of this tournament and on 25 January and he attended.  He did not contact the mother the following day to ascertain the time of the game that day; he arranged to attend the game at (omitted) on the Sunday but then did not attend, offering an explanation about his inability to locate the entrance to the stadium.  The mother explains in her affidavit why she regarded this as another instance (vide my findings at the trial) of his untruthfulness in dealing with her.

18. The mother’s affidavit raised, then, a miscellany of concerns about the father’s commitment to prioritising the children, redolent of the history of his relationship with them prior to the judgment.  He was given an opportunity to answer the affidavit by the orders I made at the hearing of 10 April.  By the date of the hearing of 31 May he still had not taken that opportunity (he was ordered to file any responsive affidavit material upon which he proposed to rely by 24 May). 

19. The Full Court of the Family Court had occasion to consider the application of the rule of Rice v Asplund very recently in Prewett & Mann 2013 Fam CAFC (delivered 27 August 2013).  As the Court notes at [9] thereof

    The rule is a manifestation of the best interests principle and founded on the notion that continuous litigation over a child or children is generally not in their interest (Langmeil & Grange [2013] Fam CAFC 31).  The application of the rule is connected to the nature and degree of change sought to the earlier order (SPS & PLS (2008) FLC 93-363.

20. There has been some judicial consideration in recent years of the nature of the hearing required when the Rice v Asplund point is raised and the discussion has usually taken place in the context of a consideration of whether and in what sense the application of the rule is a “threshold issue” (see SPS & PLS and Cortes & Cabrera [2007] FMCAFam 293).

21. It is important to remember, too, the matters identified in the following passage from the judgment of Warnick J in SPS & PLS at [86]: 

    This provision and the position that the rule in Rice and Asplund is merely a manifestation of the best interests principle, establish that the rule survives.  However, its application must recognise the new legislative content in which the question is now posited and answered.  This includes the objects (and underlying principles) of the Part, set out in s 60B and s 61DA which provides that, when making a parenting order in relation to a child, the court must apply a presumption that it is in the best interest of the child for the child’s parents to have equal shared parental responsibility for the child.  The presumption may be rebutted, but if it is not, then under s 65DAA, the court must consider whether the child spending equal time with each parent would be in the best interest of the child or, if such an order is not to be made, whether the child spending substantial and significant time with each parent would be in the best interests of the child.

22. I deal with this application as a threshold issue and on the papers.  I would not allow a dispute where the trial proceedings concluded in November 2011 to be re-opened without a change of circumstances being able to be demonstrated on the papers. I will proceed on the basis that the father will adduce evidence to sustain the contentions he makes in his affidavit filed in support of his application, such as they are.  I have already remarked upon the absence in the affidavit of any reference to important matters pertinent to the welfare of the children, especially in the light of the issues relating to the father highlighted in the judgment.  I know that the father has moved to Melbourne but I do not know why.  I am told very little about his circumstances such as his accommodation.  My making an assumption, then, that he will make out his averments does not take the father very far.  In that sense, I do not think anything turns upon whether I deal with the Rice v Asplund point on a demurrer basis or a summary dismissal basis.  Either way, there has not been adequate evidence adduced by him to satisfy me of a change of circumstances.  The father’s move to Melbourne is certainly a change of circumstances simpliciter; so would be, hypothetically, his decision, for example, whilst in Adelaide, to no longer see the children.  Clearly, change per se is not enough; the change must be more than a voluntary and unexplained act of the applicant. 

23. I should explain at this point the way in which, if at all, I have had regard to the mother’s affidavit.  She has raised matters in it which, if established at trial, would suggest that the instability of the father’s lifestyle continued to be salient following the judgment.  The father has not put the matters raised by her in issue; he declined to answer her allegations.  The position is not one of having to choose between competing accounts of these events on the papers; it will be an exceptional case of the application of the rule in Rice v Asplund where the taking of oral evidence will not be required to resolve such issues even though the matter is being dealt with as a threshold issue.  I do not have competing accounts of the matters dealt with in the mother’s affidavit.

24. One matter that is agreed on the cases of the parties is that it is not in the best interests of the children to have been deprived (since late 2012 in any event) of an opportunity to continue to have a relationship with their step-siblings V and W.  I found in my judgment that the relationship with these step-siblings was significant for both children. 

25. The father says that the orders he is seeking mirror the orders currently in place for V and W.  That may be so, though I had considered that the father had misled me about a number of significant issues during the trial and I am not prepared to accept his assertions without further substantiation.  None is offered in the affidavit.  The mother’s hearsay reference to what she has been told by the mother of V and W is something I will also give no weight to. 

26. Even if the father has such an order or arrangement in place it does not address the issues relating to accommodation, safety and general stability of the father’s living circumstances such that an extension to overnight time – and extended overnight time – should be contemplated; even if it were to be contemplated to some degree, there is no attempt in the affidavit of the father to address the issue of why the interaction with the step-siblings cannot and should not take place in Adelaide.

27. The benefits to the children of interaction with the extended paternal family was not a feature of the trial or of the father’s case at trial, though he now raises it in its affidavit as a matter of significance to his children.

28. There is a deep mistrust between these parties.  On the recent evidence available to me, it has not abated.

29. The mother in particular requires clear and reliable information about the father’s circumstances before she will agree to any change in the arrangements for the father to exercise time-spent with the children.  The evidence I heard at trial and the material put before me by both parties indicates that her position and her attitude is justified.

30. The Court is not persuaded that the terms upon which the father exercises time-spent with the children should be revisited.  If he lives permanently in Melbourne some modification of the orders may be required but not necessarily such that his time-spent will be increased. 

31. The history of the father’s itinerance as discussed in the judgment indicates the possibility that his relocation to Melbourne may be short‑lived in any event.

32. The existing order should remain in operation.

33. The father also agitated in his fresh application for an order to have the birth certificate of the child Y amended so as his surname is described as Terry rather than Mammone.

34. All I am told about the reasons why the child is presently described as he is on his birth certificate I am told by the mother, in her affidavit.  The father does not address these matters at all in his affidavit other than to ask for the order.  The mother opposes the change.  The matter was not agitated at the trial by the father and no explanation is given by him as to why it was not.

35. That application too, will be dismissed.

36. The injunction sought by the mother in [3] of her Response is unnecessary in the light of the practical reality of the existing parenting orders. 

37. I order accordingly.

38. I make the observation that unless and until the father notifies the mother in writing of his intention, after this lengthy hiatus, to resume time-spent with the children in accordance with the existing orders, she is highly likely to be able to establish a reasonable excuse for not complying with the order for the provision for time-spent to the father or with the ancillary order requiring her to deliver the children to the (omitted) Police Station.

I certify that the preceding thirty eight (38) paragraphs are a true copy of the reasons for judgment of Judge Lindsay

Date: 9 October 2013