WALKER & LEE
[2016] FCCA 230
•3 February 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WALKER & LEE | [2016] FCCA 230 |
| Catchwords: PRACTICE AND PROCEDURE – Application in a Case – application must comply with Federal Circuit Court Rules 2001 Rule 4.02 by stating precisely and briefly the orders sought. |
| Legislation: Family Law Act 1975(Cth), ss.60CA, 61DA, 65DAA, 68L Federal Circuit Rules 2001, r.4.02 |
| Cases cited: Carriel & Lendrum [2013] FCCA 284 Carriel & Lendrum [2015] FamCAFC 43; (2015) 53 Fam LR 157; FLC 93-640 Re K (1994) 17 Fam LR 537; FLC 92-461 Rice v Asplund (1978) 6 Fam LR 570; (1979) FLC 90-725 |
| Applicant: | MS WALKER |
| Respondent: | MR LEE |
| File Number: | SYC 4088 of 2015 |
| Judgment of: | Judge Scarlett |
| Hearing date: | 3 February 2016 |
| Date of Last Submission: | 3 February 2016 |
| Delivered at: | Sydney |
| Delivered on: | 3 February 2016 |
REPRESENTATION
| Solicitor for the Applicant: | Ms Saab |
| Solicitors for the Applicant: | Saab Law Group |
| Solicitor for the Respondent: | Ms Dabliz |
| Solicitors for the Respondent: | Platinum Lawyers |
ORDERS
UNTIL FURTHER ORDER
The interests of the children X born (omitted) 2013 and Y also born (omitted) 2013 are to be independently represented by a lawyer under the provisions of section 68L of the Family Law Act 1975 and for this purpose Legal Aid New South Wales is requested to arrange such representation.
Within fourteen (14) days from the date of this Order the parties are to forward to Legal Aid New South Wales for the use of the Independent Children’s Lawyer when appointed copies of all Applications, Responses, affidavits and other relevant documents.
The Independent Children’s Lawyer is granted leave to issue up to ten (10) subpoenas without charge.
The Respondent father is to file and serve a Response to an Application in a Case and an affidavit in support not exceeding ten (10) pages of text within fourteen (14) days.
The Application is adjourned to Tuesday 8 March 2016 for further mention at 10:00 am.
IT IS NOTED that publication of this judgment under the pseudonym Walker & Lee is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 4088 of 2015
| MS WALKER |
Applicant
And
| MR LEE |
Respondent
REASONS FOR JUDGMENT
Application in a Case
This case concerns an Application in a Case filed by the mother on 28 January 2016 but only served today. However, the mother’s solicitor emailed a copy to the father’s solicitor earlier.
Orders Sought
The Applicant seeks to vary the Interim Orders made by consent on 6 July 2015 and varied by consent on 4 November 2015.
The mother seeks to change the changeover from the current (omitted) Police Station to “(omitted) McDonalds or alternatively, a location which is half way between the Applicant Mother and Respondent Father’s residential address”.
Curiously, the mother also seeks an order that there should be “50/50 equal and shared parental responsibility to ensure consistency in the parties and the children’s lives. It is proposed that one party take the children for one week and the other the following week, with alternating weekends”.
The Respondent has not yet filed a Response to the Application in a Case but it is clear that he does not consent to the proposed orders.
Submissions
The father’s solicitor, Ms Dabliz, confirmed that she had received the Application that morning. She said the problem in this case is that each time the parties come to Court, they agree on something, they sign consent orders, then, “in the real world, when we step out of court” the orders are not complied with.
Ms Dabliz complained of the mother’s repeated non-compliance with the Orders, saying that this was why the father was reluctant to deviate from the Orders. Further, the father had not seen the children since 3 December. The Christmas presents for the children are still at his house. The mother has withheld the children form the father and there has been no explanation as to why.
Ms Dabliz also submitted that the mother had made the unilateral decision to have one of the children, the boy, circumcised. As she said, the parents do have joint parental responsibility, so it is not a decision that the mother can make by herself.
The father’s solicitor referred to the Child Dispute Conference Memorandum on file, noting that the children are young and at such a young age that this is when bonds are formed. Her client had done everything he could to try to facilitate the contact to accommodate the mother’s wishes. It was clear, she said, that the co-parenting relationship is not strong and there needs to be something done in terms of having this case back on track.
Conclusions
I am certainly prepared to agree that this case is not on track. I think it is a long way from the tracks, and I think there needs to be a dose of reality in this, because I am going to make some comments about the Application and about some of the submissions made. It is no surprise that I will be making an order that the children’s interests should be independently represented by a lawyer under the provisions of section 68L of the Family Law Act 1975 (Cth).
First of all, there have been two sets of Interim Consent Parenting Orders. The most recent ones were made on 4 November 2015. What we now have is an Application in a Case seeking to vary those Orders yet again. The parties have attended a Child Dispute Conference with a Family Consultant. The Family Consultant has identified matters of concern. In the section headed “Issues in Dispute”, the Family Consultant referred to the mother’s “significantly disparate proposals …that the children live in an equal time week about arrangement, or that the children spend supervised time with Mr Lee from 9:30 am until 4:30 pm each Sunday.”
They are disparate proposals. They are miles apart. They are almost at opposite ends of the parenting order spectrum. What can be the justification for one or other of those? What I have in the Application in a Case, which does not comply with the Rules in precisely and briefly the orders sought (Rule 4.02), is an application to vary those Orders, saying in paragraph 1(b):
The Applicant Mother is seeking to have 50/50 equal and shared parental responsibility to ensure consistency in the children’s lives.
She refers to that in her affidavit. This, I might point out, is in a background where there have been allegations of family violence, where there was an Apprehended Domestic Violence Order made, a final order which expired on 6 August last year. There are changeovers at a police station. There are, in paragraphs [10], [15] and [16] of the Applicant’s affidavit, criticisms of the father’s behaviour. And yet, in paragraph [18], notwithstanding those criticisms, there is a proposal for what appears to be equal shared care on a week about basis.
One thing that strikes me about the application in a Case is that there appears to be a confusion of two fundamental concepts. There is a reference to “50/50 equal and shared parental responsibility” on the basis of a week about arrangement. Parental responsibility, on the one hand, and arrangements for the physical care of the children, on the other, are two separate concepts. The presumption that it is in children’s best interests for there to be equal shared parental responsibility is referred to specifically in section 61DA of the Family Law Act 1975.
If you read section 65DAA of the Act, you will see that it looks at how the Court should approach a situation where an order has been made that the parties should have equal shared parental responsibility for the children. The Court is required to consider whether it is both in the children’s best interests and reasonably practicable for there to be an equal shared care arrangement between the parties. If the Court does not consider that it is either in the children’s best interests or reasonably practicable for them to be in an equal shared care arrangement, the Court must then consider whether it is both in the children’s best interests and reasonably practicable for each parent to have substantial and significant time with each parent.
The Application here confuses those two concepts. The fact is that under the current Orders, to which the parties have consented, the parties have equal shared parental responsibility for the children. There is no point in asking for a further order for equal shared parental responsibility; they have already got it. There is no evidence in the mother’s latest affidavit, which was sworn on 21 January, that would suggest it is appropriate to go from equal shared parental responsibility to sole parental responsibility.
I am informed by Ms Dabliz, although it is clearly not in evidence, that the mother has in fact arranged to have one of the children, fortunately, the little boy, circumcised, without consulting the father. It must be patently obvious that a medical procedure of that nature that has a permanent consequence is clearly a matter for discussion between the parties who have equal shared parental responsibility for the child. To circumcise a child on a unilateral decision flies in the face of equal shared parental responsibility. It is just wrong.
As I have said, that is not the subject of an application before me, but it does indicate a serious misconception of the concept of equal shared parental responsibility and of the concept of equal shared care, which is a physical thing. On the evidence before me, it appears from the mother’s affidavit, because the father has not had a chance to put his material on yet, that it is not a matter to which the father would be consenting, unless he has changed his attitude or has been misquoted in paragraph [18] of the mother’s affidavit.
There is another matter. Since early in the life of the Family Law Act 1975[1] the Courts have exercised a great deal of concern about constant applications to change parenting orders. I note, interestingly, that the Family Consultant, who is not a lawyer but a person with experience in this area, raises some concerns in the section of the Family Consultant Memorandum to Court in the section headed “Future Directions”, saying:
While it is acknowledged that Ms Walker has not adhered to Court orders, questions arise as to whether there are sufficient reasons to change them in the interim. That said, further non-adherence of the orders on Ms Walker’s part may require all parenting arrangements to be reviewed after further careful assessment.[2]
[1] Which came into force on 5 January 1976
[2] Child Dispute Conference Memorandum to Court 3.12.2015 page 3
Now, as for the question of applications to vary parenting orders on a frequent basis, the decision of the Full Court of the Family Court in Rice v Asplund[3] still remains good law, and decisions following Rice v Asplund have been endorsed by the Full Court, including as recently as last March in Carriel & Lendrum[4]. The principle can be briefly summarised as that, where an order has been made in relation to where a child should live, the Court should not lightly entertain an application to reverse that earlier order unless it is satisfied that there are changed circumstances (in the sense that a new factor has arisen or some material factor was not disclosed at the previous hearing) which would justify the reversal.[5]
[3] (1978) 6 Fam LR 570; (1979) FLC 90-725
[4] [2015] FamCAFC 43; (2015) 53Fam LR 157; FLC 93-640
[5] See also Carriel & Lendrum [2013] FCCA 284 at [41]
On the face of it, I would have to say that I have a serious doubt whether this application in a case is going to succeed. It may need to be reconsidered, having raised those particular concerns.
All of this leads me to the point that this is a matter that cries out for the appointment of an independent children’s lawyer under the provisions of s.68L of the Family Law Act, and I will be making that order now.[6]
[6] See Re K (1994) 17 Fam LR 537; FLC 92-461 for some helpful guidelines when considering the appointment of an ICL
I will direct that the parties are to forward to Legal Aid New South Wales at 323 Castlereagh Street, Sydney, copies of all applications, responses, affidavits and other relevant documents for the use of the independent children’s lawyer, when appointed. It usually takes about three weeks for an ICL to be appointed. The ICL will contact each solicitor and should have copies of all the documents.
I will bring this matter back to Court on Tuesday 8 March at 10:00 am for further mention.
There is an allegation, at this stage unsupported by evidence, that the father has not seen the children since 3 December, which was the date of the Child Dispute Conference. If that is in fact the case, that situation needs to be changed, and the orders need to be adhered to. The existing Orders need to be adhered to without fail. If it transpires when this matter comes back to me on 8 March that I have affidavit evidence that the mother has not complied with the Orders to which she consented, I will take a very serious view of it indeed.
This matter needs to get back on the rails. People need to speak realistically to their clients, because when I see the parties again on 8 March, if this matter is not in better shape, I will be considering the fact that the best interests of the children are the paramount consideration (Family Law Act 1975, s.60CA) and I will be making some fairly serious orders.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Date: 10 February 2015
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