VDM and R (No.1)
[2002] FMCAfam 479
•23 July 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| VDM & R (No.1) | [2002] FMCAfam 479 |
| FAMILY LAW – CHILDREN – Residence – application to vary existing orders – test in Rice and Asplund (1978) 6 Fam LR 570; (1979) FLC 90-725 – best interests of the child – whether parties can rely on evidence of matters that pre-date earlier decisions. Family Law Act 1975, s.68F(2)(k) Rice and Asplund (1978) 6 Fam LR 570; (1979) FLC 90-725 |
| Applicant: | J V D M |
| Respondent: | C R |
| File No: | DGM 147 of 2002 |
| Delivered on: | 23 July 2002 |
| Delivered at: | Melbourne |
| Hearing Date: | 23 July 2002 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Wood |
| Solicitor for the Applicant: | Ryan Carlisle Thomas |
| Solicitor for the Respondent: | In person |
| Counsel for the Children’s Representative: | Mr Arnold |
| Solicitor for the Children’s Representative: | Youth Advocacy and Legal Service |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
DGM147 of 2002
| JV D M |
Applicant
And
| C R |
Respondent
REASONS FOR JUDGMENT
The application before the court is an application by the father to change residence orders that were made by consent on 14 August 2000 in the Family Court of Australia at Dandenong. The application by the wife, the cross-application, ie the mother of the child, is to discharge the orders made on that date and also to discharge some later contact orders made on 17 September 2001 so as to provide that the father has no contact with the child. The parties commenced cohabitation in January 1994. They were married on 14 April 1994 and separated on 8 February 1996. There is one child of the marriage, J B V D M born
9 February 1995. As can be seen, he is now seven years of age. He resides with the mother.
The proceedings before the court today represent the fourth set of proceedings between the parties since they separated concerning the child B. In each case the father has been the applicant. The original proceedings were dealt with in the Family Court of Australia at Hobart on 30 October 1997. At that stage orders were made by consent whereby the child was to reside with the mother and the father was to have contact. Proceedings were commenced again by the father in May 1999. Interim orders were made in the Family Court of Australia at Townsville by a judicial registrar in which, as the father says, he was ordered to return the child to the mother.
These proceedings went to the Family Court of Australia at Dandenong. They were listed for a defended hearing. A family report was ordered and that report was released on 17 July 2000. On 14 August 2000 the matter was settled by orders being made by consent. Those orders provided that the child was to remain living with the mother and that there were specific orders that the father should have contact with the child. On 17 September 2001 there were proceedings again in Dandenong which were resolved by consent orders. Those orders discharged orders 5 and 10 of the orders made the year before which set out particulars concerning contact. Other orders were made relating to mechanism of contact taking into account the fact that the child has to travel by air for contact with the father. Orders were made also by consent restraining the wife from removing the child from his then current school until the end of that school's fourth term in the year 2001.
Proceedings before the court today were commenced by the father and represent the fourth set of proceedings since 1997. They commenced in the Federal Magistrates Court at Dandenong and came before the court on 22 January this year. The original applications were a contravention application and an application for certain specific contact orders. The father filed an amended application seeking different orders. The mother filed a response. In that response she sought a number of orders, including a variation of the contact orders made which would, whilst allowing the child to remain living with her, reduce the amount of face-to-face contact that the father had.
By consent, the contravention application and the amended application filed by the father was withdrawn. A reply by the father came before the court on 19 March. That order sought different orders seeking that the question of residence be reopened and the child reside with him. The matter is listed for hearing at this court in Melbourne for two to three days. Each party has filed affidavits of significant size. The affidavits contain material relating to a number of issues and the parties' relationship over the years, certainly preceding the earlier proceedings. Indeed, the father in his affidavit makes reference to those proceedings and to issues before the court on those occasions.
The mother in her affidavit filed on 25 June annexed a schedule of orders which she now seeks to replace those orders which were set out in her response. The orders that the mother now seeks are not orders varying the contact by reducing it, they are orders discharging contact orders completely so that there should be no contact between the child and his father. It is fair to say that the parties could hardly be more polarised. The mother seeks that the child should remain living with her and have no contact with the father. The father seeks that the child should come and live with him, although he does not seek that there should be no contact with the mother. He seeks contact orders on a similar basis to those which he has enjoyed.
The issues immediately before the court are whether the father should be permitted to reopen the issue of residence, that matter having been resolved by an order by consent just under two years ago and, if so, whether he in his application should be permitted to rely on matters that were referred to prior to the earlier proceedings and whether the mother in her application to vacate contact completely should be permitted also to rely on such issues. In respect of each of the parties, it is submitted that should be so.
The mother indicates that she is asking for contact to be discharged because of behaviour by the child, symptoms of fear and anxiety which occur, she says, before and after contact takes place and then his behaviour settles after return. She says this has been a continued occurrence over the years. For father, Mr Wood of counsel says that since the matter was last before the court there has been a disintegration of telephone contact. There is evidence from the wife of dramatic changes in the child's behaviour with evidence that the wife has embarked upon a program of alienation of the child from the father and indeed the wife now seeks that all contact should cease, that whilst there was an order made before the Family Court in August 2000 prohibiting the child to be dealt with by either party by means of corporal punishment, she is now seeking that order should be discharged and that the child should attend a school where the discipline policy includes corporal punishment.
The child has been separately represented by an order made by Walters FM. Mr Arnold of counsel appears for the child representative. A family report has been prepared by Mr Vincent Papaleo. Mr Wood points out to the court that there are some dramatic changes in behaviour in the child, that there are certain symptoms in the child's behaviour which are of considerable concern. Mr Arnold of counsel for the child representative points out that in the family report Mr Papaleo has taken into account the full history of the matter. He refers to, that is Mr Papaleo, refers to separation and its effects between the ages of 18 and 30 months of age. There was an earlier report by one Joy Slattering in July 2000 after the child had reached the age of four.
The children's representative has not formed a firm view as to what orders would be recommended to the court on the basis that this is seen as one of the most difficult cases before the court, but Mr Arnold has specific instructions that an order that there should be no contact between father and child is not recommended and indeed those instructions are so firm Mr Arnold informed the court that he had been advised that under no circumstances would the child representative be recommending a no contact order. Mr Wood in reply pointed out that it would be difficult for both parties to represent their cases accurately without relying on this earlier evidence.
Now, I am mindful of the provisions of section 68F(2)(k) of the Family Law Act which relate to finality of proceedings. A court should, unless in the opinion of the court it is not practicable, make an order that in the opinion of the court is least likely to lead to the institution of further proceedings with respect to the child. Courts, therefore, must look at making final orders in residence matters. There is a line of authority supporting that proposition. The line of authority is to the extent that unless a significant change of circumstances can be shown, the court should not permit parties to re-embark on the reopening of residence orders.
The matter was looked at as long ago as 1979 in the matter of In the Marriage of Rice and Asplund reported (1979) FLC 97-25. This was a decision of the Full Court of the Family Court of Australia which is of course binding on this court. In her judgment the then chief justice the Honourable Evatt CJ said at page 78905:
“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. 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. These are not necessarily matters for preliminary submission, but they are matters that the judge should consider in his reasons for decision." It is a question of finding that there are circumstances which require the court to consider afresh how the welfare of the child should best be served. These principles apply whether the original order is made by consent or after a contested hearing.”
The way the court does that is subject to the discretion of the trial judge or federal magistrate. Indeed, the question of whether reopening residence proceedings should be seen as a threshold issue or not was dealt with in the matter of King v Finneran which is reported in (2001) FLC 93-079. That is a decision of the Honourable Collier J of the Family Court of Australia exercising the jurisdiction of the Full Court of the Family Court of Australia hearing an appeal against a decision by Ryan FM.
At the hearing the federal magistrate dealt with this particular question by application of a threshold test and in fact dismissed the husband's application. The husband argued that the rule in Rice v Asplund had no application and replied on the paramountcy principle, that is, that the best interests of the child is paramount. Further, he argued that even if there was a threshold test applicable, then he satisfied that test by the material placed before the court. On appeal the husband's appeal was dismissed on the basis that there was the power in the federal magistrate to deal with the matter in the way that she did and it was a matter of her discretion as to the manner in which she dealt with the matter. It is further held that the test having been found to have application the husband did not satisfy the test so as to demonstrate a need for relitigation.
As that is an appellate judgment from the decision of the Federal Magistrates Court it is of course binding on me. What is the situation here? As I said, these are the fourth proceedings. The residence order which is sought to be re-opened is an order that was made by consent in the lead-up to and indeed on the day of a contested hearing. The issues of course are whether the father should be permitted to reopen the issue of residence and, if so, whether the parties should be permitted to rely on earlier material. It is it has been submitted that he should be able to do so and indeed both parties should be able to do so. One of the issues referred to by Mr Wood of counsel was the fact that there is evidence that in the earlier proceedings before the matter came to the Family Court in August the wife had lied and indeed lied in an affidavit.
That is in fact one of the matters which the applicant seeks to rely on. He annexes to his affidavit a copy of an affidavit by the mother which was before the court in the earlier proceedings. In that affidavit the mother speaks of her earlier relationships of an abusive nature with two different men. She admits in paragraph 7 that she had in fact told lies. In paragraph 7 she says:
“The fact that I lied to the Department of Family, Youth and Community Care, lied in my affidavit of 11 May 1999, lied to Centrelink and lied to Victoria Legal Aid has weighed very heavily upon me.”
She goes on to say:
“I am informed and verily believe by my solicitor Robin Harrison he has now advised Victoria Legal Aid that I lied.”
She goes on in paragraph 8:
“I decided to tell the truth because I could not longer cope with the guilt I have been experiencing in relation to this matter.”
She says later in that paragraph:
“I can see now in retrospect that I could have handled things differently, but at the time I could see no other way.”
That affidavit was prepared for the proceedings before the Honourable Wilczek J in the Family Court. It was well and truly before the court and was an issue that was out in the open. The proceedings went on, however, to be resolved by consent with the child remaining living with the mother. It is fair to say that in the proceedings up to now they have all been resolved by consent orders. No appeal has been lodged, on the information before me at least, by either party against any of those orders.
The matter of course has been looked at in the decision of Freeman v Freeman reported (1987) FLC 91-857, again a decision of the Full Court of the Family Court of Australia. In the leading judgment the Honourable Strauss J referred to a situation where a trial judge had declined to allow an embarkation on the reopening of custody, as it was called in those days, on the basis that sufficiently weighty new facts and circumstances had not been shown to exist. The Honourable Strauss J at page 91-857 says:
“His Honour took the view that nothing of sufficient substance had occurred since the making of the consent order on 18 December 1984 which justified the reopening of the matter which had been concluded by consent orders made on that day. When that order was made the matter was about to be heard in the defended list. It was not a matter which was compromised at a time when the parties had not been able to give it full and pR consideration. Each party had filed a number of affidavits and there were in addition affidavits from five witnesses for the husband and five witnesses for the wife. A full welfare report had been prepared and had been made available to each of the parties. As the husband stated, he settled on counsel's advice. Yet by 30 January 1985 the husband had filed an affidavit stating, ‘I'm the more appropriate custodian for the children.’ The alleged changes in circumstances were in my view no more than the kind of changes that often occur in the lives of people of the ages of these parties. As counsel for the wife pointed out, this was the second time that the husband sought to overturn a consent order made a short while previously.”
His Honour went on to say:
Continuing and seemingly endless and inconclusive litigation is usually emotionally damaging to the litigants and is likely to affect the children adversely. It impairs the ability of the custodian and, in this case the wife, to deal with the present and plan for the future of the family. It is financially burdensome. It is for these and like reasons the court may in an appropriate case scrutinise with some care an application such as the one in question here when a party applies for what is in effect the reversal of an order made a short time previously. The court may inquire what the facts and circumstances are before it embarks on what might be a lengthy and costly hearing.
I am of a view that I have made such an inquiry. I am not satisfied on the evidence before me that there were matters that were not available to the Family Court when the proceedings were resolved by consent on the day of the hearing on 14 August. There had been a family report ordered. There had been affidavits filed. The wife's lying behaviour had been admitted by her in proceedings before the court. Nevertheless, the matter was resolved by consent. True it is, the husband was not legally represented on that occasion. Does that mean that the question of residence should not be reopened? I am not of that view either.
I am of the view that there is material shown that indicates that the situation has changed to a significant degree since those orders were made by consent on 14 August 2000.
As Mr Wood of counsel points out, there is evidence of considerable difficulties sustained by the father as far as contact is concerned, his belief that the mother is embarking on a program of alienation of the child against him. Mr Arnold has pointed out that there is a family report prepared by Mr Papaleo which indicates serious concerns relating to the child's relationships. The matter is made even more apparent by the very nature of the mother's application now before the court not just that contact should be reduced, but that contact should no longer continue at all.
I am of a view that that fact alone would justify the court embarking on an exercise of deciding the proper living arrangements for the child and that it is in the best interests of the child to do so. I am not, however, satisfied that the parties should be permitted to go back in time and to in effect re-litigate matters that have been before the court on three prior occasions since 1997. If the court were to permit that without good reason, proceedings between the parties would be not only endless, but they would get larger and larger. There are incidents in the past which led to certain orders and no-one appealed, as I said, against those orders. It is only now that the parties are saying that those orders are no longer applicable; the residence orders, as far as the father is concerned, the contact orders, as far as the mother is concerned.
It is of course an old saying in litigation that he or she who puts must prove. It is up to each party who seeks a variation to residence or a variation to contact to show the court why that must be so. The starting point, however, must be finite. The mother is seeking in fact to vary or discharge both the most recent orders; 14 August 2000, 17 September 2001. The appropriate task for the parties now is to show to the court what circumstances there are which have occurred since the earlier orders were made in August 2000 which justify the court changing those arrangements. I am not satisfied that any injustice would be dealt with to the parties in bringing down the curtain I think, to use Mr Arnold's phrase, at a time when orders were made by consent on a hearing day by a court of competent jurisdiction. That then is my ruling.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: A. Coutman
Date: 28 February 2003
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