Whitehill & Talaska (No 2)
[2024] FedCFamC2F 1756
•22 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Whitehill & Talaska (No 2) [2024] FedCFamC2F 1756
File number(s): MLC 3002 of 2024 Judgment of: JUDGE O'SHANNESSY Date of judgment: 22 November 2024 Catchwords: FAMILY LAW- Parenting – where this hearing was listed originally as a 65DAAA hearing – where the applicant seeking “minor” variation to order – where the initial application regarding 65DAAA alleged a deterioration of the respondents mental health – where the respondent undertook a psychological assessment – where there was found to be no deterioration in the fathers mental health – where the applicant still seeks a “minor” variation in the orders following the psychological assessment – where the applicant wishes to relocate to another city for a job opportunity – where the applicant is seeking leave to amend her initiating application – where leave was granted – where the 65DAAA hearing is adjourned and consolidated with variation of orders hearing. Legislation: Family Law Act 1975 (Cth) ss 65DAAA
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 2.50
Cases cited: Rice & Asplund (1979) FLC 90-725, [1978] FamCA 84
Whitehill & Talaska [2024] FedCFamC2F 768
Division: Division 2 Family Law Number of paragraphs: 38 Date of hearing: 22 November 2024 Place: Melbourne Counsel for the Applicant: Ms Swann Solicitor for the Applicant: Saunders Family & Estate Lawyers Counsel for the Respondent: Mr Willee Solicitor for the Respondent: MC Lawyers ORDERS
MLC 3002 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS WHITEHILL
Applicant
AND: MR TALASKA
Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
22 NOVEMBER 2024
THE COURT ORDERS THAT:
1.Leave be and is granted for the applicant mother, MS WHITEHILL (‘the Mother’), to file and rely upon her amended application dated 31 October 2024.
2.All extant applications, including the competing applications as to section 65DAAA of the Family Law Act 1975 (Cth), the Mother’s application to vary the extant final orders, and the response (if any) of the respondent father, MR TALASKA (‘the Father’), be and are adjourned to Friday 20 December 2024 at 10.00am before Judge O’Shannessy for Final Hearing, subject to other applications.
3.By no later than 4.00pm on Friday 29 November 2024, the Mother file and serve any necessary affidavit updating her affidavit filed on 31 October 2024. By no later than 4.00pm on Friday 13 December 2024, the Father, file such affidavit and response he sees fit in regard to:
(a)the section 65DAAA of the Family Law Act 1975 (Cth) application made by the Mother, including whether the extant final orders can be reconsidered; and
(b)his response to the application to vary the extant orders as he sees fit; and
(c)the merits of Mother’s application to vary the extant orders and the matters relevant to his response.
4.On or before 4.00pm on Wednesday 18 December 2024, the Mother and the Father each file skeletal Outlines of Case of no longer than 5 pages in length.
5.The Father’s application for costs of these proceedings (that commenced on 15 March 2024) be and is consolidated with all other extant issues for hearing on 20 December 2024.
AND THE COURT NOTES:
A.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
B.Affected unrepresented parties may apply to the court and then to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.
C.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
D.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR EX TEMPORE JUDGMENT
JUDGE O’SHANNESSY
These are the settled reasons of a judgment delivered ex tempore and deals with the Family Law Act 1975 (Cth) (‘the Act’). These reasons were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected, citations and/or passages of authorities and evidence added, and an attempt has been made to make the orally delivered reasons easier to read, but the substance is unchanged.
This judgment will consist of both ex tempore reasons for judgment that were delivered to the parties orally during the hearing before me this day. For convenience, it is easier to deal with both determinations within a single judgment.
The matter of Whitehill & Talaska comes before me again today after the matter was before me previously on 22 May 2024 where I dealt with the issue of interim change of orders. The matter was then listed for hearing pursuant to Rice & Asplund [1978] FamCA 84 (1979), FLC 90-725 (‘Rice v Asplund’), and/or a Section 65DAAA of the Act hearing.
Background
By way of background, I refer to and repeat relevant passages from my previous decision of Whitehill & Talaska [2024] FedCFamC2F 768 (‘Whitehill & Talaska’).
2This is the second wave of litigation in the life of [X], now 3 years old. The first wave started when proceedings were issued seeking parenting orders when [X] was one year old (‘the original proceedings’). The original proceedings were resolved by final orders, made by consent, on 11 April 2023 (‘the final orders’). At that time [X] was one year old. Those orders provided for equal shared parental responsibility, for [X] to live with her mother and spend time with her father, gradually increasing as [X] got older. The current and second wave of litigation came before me for urgent interim hearing on 22 May 2024. A “threshold” hearing to consider section 65DAAA of the Family Law Act 1975 (Cth) (‘the Act’) had also been listed for the following August 2024 (‘the August 2024 hearing’). Following trouble in early 2024, [X] continued to live with her mother but no time was taking place with her father.
…
77The most significant aspect of the evidence that would corroborate the Mother’s opinion of the Father’s deterioration of his mental health is his own account in the Intervention Order application (recited above). Before me the Father asserted that he was not admitted regarding his mental health or emotional stress but rather his ongoing [medical] problems. Neither party put before me any proper or accurate record from the Hospital of just what it was the Father attended for or was treated for. In early 2024, in the Intervention Order application, he expressed an opinion of what the doctor said a few days earlier.
78On his account, if at least partly correct, the stress to the Father of the recently obtained final orders (necessary to spend time with his daughter) being thwarted after substantial litigation can be readily understood. Such stress may, but would not necessarily, cause or contribute to a deterioration in a person’s mental health.
That proceeding has effectively ended, save that there is an application for costs that is alive as a result of that proceeding.
ISSUE OF LEAVE TO AMEND MS WHITEHILL’S INITIATING APPLICATION
These were the first reasons that were delivered ex tempore to the parties.
Post May 2024 hearing
The matter was before Senior Judicial Registrar Flintoff on 21 August 2024, when there was effectively nothing left of the original application and response, as it then was.
Father’s psychological assessment
In the meantime, as I had ordered, the Respondent, Mr Talaska (‘Mr Talaska’) had attended upon Dr K for an updated psychological assessment, and the net effect of that report was that it was significant in persuading the Applicant, Ms Whitehill (‘Ms Whitehill’), to abandon that application to change time, on the basis of a change in circumstances, being the deterioration in the father's mental health.
Updated issue for a change in circumstance
On 21 August 2024, Senior Judicial Registrar Flintoff was told that there was still utility in a further hearing, if it could not be resolved that day, to deal with two things. What were said to be minor changes to the existing order that Ms Whitehill then pressed, which related to what could be called (depending on whether your glass is half full or half empty) a significant change or minor change to accommodate her work regime and the issue of the costs of the application that started this second wave of litigation.
Ms Whitehill’s work
Ms Whitehill deposes that, shortly before 28 August 2024, a relative that lives in the City L area brought to her attention a position of employment in that area, and that, in mid-2024, she applied for that job, and shortly thereafter was advised that she had been successful in the job application.
It's alleged by Ms Whitehill that this is an advance in her career, and a position that will better accommodate her obligations to care for the parties' child.
On 1 October 2024, Ms Whitehill’s solicitors wrote a letter to Mr Talaska's solicitors advising that she intended to take up the new employment. Ms Whitehill intended to move to the City L area, and sought agreement, or approval for some necessary changes to the existing Court-ordered arrangement. That was not agreed to, and on 31 October 2024 (with this matter being already listed for today, 22 November 2024) Ms Whitehill sought to, and attempt to, file an amended initiating application, and an affidavit in support.
I was taken to Rule 2.50 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (‘the Rules’) which is as follows.
Rule 2.50 Amendment by a party or court order
(1)A party who has filed an application or response may amend the application or response:
(a) for an Initiating Application (Family Law):
(i)at any time before the procedural hearing at which the proceeding is allocated a date or dates for trial; or
(ii) at a later time, with the consent of the other parties or by order;
(b) for an Application in a Proceeding:
(i) at or before the first court date; or
(ii)at any later time, with the consent of the other parties or by order; and
(c)for all other applications--at any time, with the consent of the other parties or by order.
(2) A party who:
(a)has filed an Initiating Application (Family Law) or a Response to an Initiating Application (Family Law); and
(b)seeks to add or substitute another cause of action or another person as a party to the proceeding;
must amend the form in accordance with this Part.
(3)If a date is set for a further procedural hearing, the party amending the Initiating Application (Family Law) or Response to an Initiating Application (Family Law) under subrule (2) must give each other party written notice of the hearing.
Leave to rely upon the amended initiating application that, one way or another managed to be filed, is opposed on the basis that this renewed application renews agitation and trouble between the parents that is not in the child's best interests.
Counsel for Mr Talaska relies on paragraph 97 of the explanatory memorandum to the legislation that referred to what can be described as the "new" section 65DAAA.
97.New section 65DAAA codifies the common law rule established by Rice and Asplund (1979) FLC 90-725 and elaborated on in subsequent cases, that is, where final parenting orders are in place the applicant must establish that there has been a significant change of circumstance since the making of the orders before those orders can be reconsidered. The rule is founded on the notion that continuous litigation over a child or children is generally not in their best interests.
It is put that the permission of the Court to amend the application should be refused, because this application with regard to the timing of it and the manner of it, in all of the circumstances, including the prior application to vary what were then the recent final orders - flies in the face of the principles of section 65DAAA, and that there is a significant element of oppression to Mr Talaska.
It's also conceded, unhappily, that if leave to amend is not granted, that Ms Whitehill, would still have the right to file a new application in a new proceeding within a couple of minutes of when I conclude this one, and, certainly, by some time on Monday (following these reasons).
Conclusion
In all of those circumstances, I am satisfied that it's in the interests of justice, as between Ms Whitehill and Mr Talaska that I permit and give leave pursuant to Rule 2.50 of the Rules for the application to be amended, notwithstanding that that is effectively a brand new and different case. I understand the irritation of Mr Talaska, to that application.
I am not making any ruling or indication on the issue of whether or not the application can actually be reconsidered pursuant to section 65DAAA, because we have not got to that yet, but we will shortly. They are my reasons for permitting the amended application to be relied upon.
ISSUE OF SECTION 65DAAA HEARING
These were the second reasons delivered ex tempore to the parties this day.
Background
The matter of Whitehill & Talaska comes before me again in regard to what was going to be the skeleton, or ashes, of the proceedings that had been commenced on 15 March 2024. Those substantial issues in dispute evaporated after a psychiatric report was prepared and filed.
However, when the matter was before Senior Judicial Registrar Flintoff on 21 August 2022, Ms Whitehill indicated that she would seek to vary the final orders with “minor variations.” Mr Talaska indicated that he would make, at the first opportunity, an application for the costs of the proceedings and made that by way of an oral application.
I am prepared to treat that application as having been made, being an oral application. It does not require (in this case) a formal written application and affidavit in support. I am satisfied I can be addressed on the matter and the parties can put such evidence as they wish to in front of me. As a result of that, or in any event, the matter was adjourned for hearing before me. At the time the Registrar fixed the Final Hearing before me for this day, it was thought that I would be hearing an oral application for costs and an application for minor variations to the final orders.
In the meantime, as recited in the orders made earlier today, on 28 August 2024, Ms Whitehill applied for and obtained employment in a regional city other than the capital city she lives in. Whether that is a long way or a little way away depends on whether you are stuck in traffic or getting a good run or from how the matter is viewed.
Substantial issue for determination
Today, when the matter came before me I heard hearing submissions on the contested issue of whether Ms Whitehill should be permitted to rely on the amended application that she filed or put before the court on 31 October 2024 pressing that she be permitted to vary the hours of X’s time with her father and the changeover places so as to facilitate her living nearby to the regional city where she wants to move to and where she hopes to work. I permitted that to be relied upon.
Counsel for Ms Whitehill then pressed to proceed with the issue of whether that application should proceed and, effectively, sought a section 65DAAA hearing there and then. One of the significant aspects of the law previously, and as I have previously ruled in Whitehill & Talaska [2024] FedCFamC2F 768 that continues in full force and effect, is that on a what was once a Rice & Asplund application and what is now a section 65DAAA application, Ms Whitehill’s case of whether or not there is changed circumstances is taken at its highest.
That would mean, usually, that it is unnecessary for Mr Talaska to go to the expense and trouble of filing material as the matter usually turns on whether, based on what Ms Whitehill says, there actually is a change of circumstances sufficient as to justify the further litigation that can also be expressed as whether, in the circumstances, the Court is satisfied that it is in the best interests of the child for the final parenting orders to be reconsidered (65DAAA(1)(b)).
Counsel for Mr Talaska opposed the hearing taking place there and then and sought to file, or permit his client to file material, both response and affidavit, dealing with both the section 65DAAA issue and the merits of Ms Whitehill’s application.
Further, he sought some considerable period of time (that is, months) for that material to be able to be filed because of the financial circumstances of his client. It was asserted, and for today’s purposes I am satisfied not without substance, that the expense of the previous proceedings had a significant impact on him to the effect that he is now financially exhausted. It was pressed that the matter should be fixed for hearing many months away. There was substance in that application and ordinarily, a final hearing would not come on very quickly.
I was able to accommodate and provide the potential date of 20 December 2024. Because I would otherwise have personal leave that day and, as counsel points out, would otherwise be undertaking Christmas shopping.
By not taking that leave, I am able to find a day to hear this matter if it is just that I do so. It was submitted that it would be unfair to Mr Talaska to expect him to file material on the date I proposed, that being 13 December 2024, in the circumstances where he is financially exhausted by the previous proceedings.
A substantial part of Mr Talaska’s counsel submissions is that he has, not just this year but over recent times, needed to come to Court again and again and again to be able to obtain court orders to enable him to see and have a relationship with his daughter, X. I note that I recall the unusual and very heartening observation of the previous family report writer, though it was untested, that both parents in X’s life displayed a significant and unusually high degree of parenting ability. Nonetheless, that high degree of parenting ability has not enabled the parents to resolve this dispute.
On the one hand, I have the need for procedural fairness to Mr Talaska to have time to consider and file material. I take into account that he has been on notice since 1 October 2024 of Ms Whitehill’s intention to take up employment in the regional city and to move to live there. The net result is that Ms Whitehill says there will be some necessary variations to the time that Mr Talaska would spend with X. Ms Whitehill alleges that though the distance from his home to the changeover point that she proposes is greater by road or as the crow flies that, by reason of the different formulations of freeways and traffic, it is roughly the same amount of travel time. Mr Talaska, by his counsel, strongly resists that assertion and points out that you can get stuck on the freeway between the regional city and the capital city quite often from time to time.
On the other hand, I have to balance that with Ms Whitehill’s account. That is the important and new position that (she says) is significant to her career, requires her to take up the position in early 2025. I am satisfied that I can infer that that position will not survive very long if she is unable to take it. Counsel for Mr Talaska says that Ms Whitehill is highly skilled and highly skilled in a profession with expertise that is rare and in demand and can obtain employment in many places and not just on the particular job that she wants.
In addition to that, Ms Whitehill points out are other advantages of being able to take up the job in the regional city and live nearby. Including the lower cost of accommodation and the lower cost of being able to purchase a house and (what she says) is family support. Mr Talaska says, by his counsel, these are all just matters of speculation and that little weight should be placed on them.
From my perspective, I have two valid and proper considerations to balance. In all of the circumstances, I am persuaded that it is in the interests of justice, and will advance X’s welfare, if this dispute is resolved sooner rather than later.
Notwithstanding the pressure that it puts on Mr Talaska to consider his position and what he will do and how he will respond, I am satisfied that I should make orders that will facilitate a Final Hearing of the extant dispute, on 20 December 2024. I note that it has been raised by counsel for Mr Talaska that it is possible that he might determine, or decide, to seek a wholesale change of residence, rather than merely resisting the changes sought by Ms Whitehill. The substance of Ms Whitehill’s position is that the changes that she seeks will not reduce the total amount of time that Mr Talaska spends with X and will also, in time, facilitate changeovers from school and to school, notwithstanding that there will be less occasions in any one fortnight.
There is substance in both party’s position. But when I take into account X’s welfare, not as the paramount consideration but as a relevant consideration, I am satisfied that the best or least worst outcome is that I will hear the matter, on 20 December 2024, and I will so order.
I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 5 December 2024
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