WP and WDJ
[2003] FMCAfam 337
•4 August 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WP & WDJ | [2003] FMCAfam 337 |
| FAMILY LAW – CHILDREN – Vary existing orders of joint residency – contact – children’s schooling – best interests of the children – change in circumstances – self executing order – summary dismissal application. Family Law Act 1975, s.65E Gilder (1967) Vic Sup Ct 16-320 |
| Applicant: | PW |
| Respondent: | DJW |
| File No: | PAM 2113 of 2002 |
| Delivered on: | 4 August 2003 |
| Delivered at: | Parramatta |
| Hearing date: | 4 August 2003 |
| Judgment of: | Scarlett FM |
REPRESENTATION
The Applicant appeared on his own behalf
| Solicitor for the Respondent: | Ms Bevan |
| Solicitors for the Respondent: | Sarah Bevan & Associates |
ORDERS
The Application is adjourned to Wednesday 3 December 2003 at 10.00am for final hearing.
The Applicant is to pay the hearing fee or obtain a waiver by 4.00pm Friday 21 November 2003.
Parties are to file and serve all further affidavit material stating the facts upon which they seek to rely upon by 4.00pm on by Friday
21 November 2003.Pursuant to section 62G of the Family Law Act, the parties are to attend upon a family and child counsellor or welfare officer at a time date and place set by the Director of Court Counselling, for the purpose of preparation of a Family Report to deal with issues of children's schooling, residence, contact and other arrangements and other matters considered appropriate by the counsellor.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAM 2113 of 2003
| PW |
Applicant
And
| DJW |
Respondent
REASONS FOR JUDGMENT
Application
The proceedings before me today are proceedings brought by the father of two children seeking to vary orders that were made by consent in this Court on 29 August 2002.
The application relates to two of the parties' three children, NLW born 7 April 1988, and ACW born on 18 November 1992.
Orders were made by the Federal Magistrates Court on 29 August last year, which provided for a form of joint residence with the two children spending a major part of their time with the mother.
What is now proposed in the application before the Court, is that there should be certain orders made relating to the schools, which these children are to attend.
For N this is a choice between P and G High Schools. For A, it is a choice of whether she goes to SP Grammar School located at P or whether she goes to another school as the mother suggests, called CM. A is currently in Year 5. She would be due to commence High School in Term 1 in 2005.
The child N is due to commence High School in Term 1 in 2004.
The orders that are sought are expressed to be conditional in each case. Order 3 that is sought in the father's application, provides that should N attend P High School, that the current orders be varied so that N resides with his father except on certain occasions, to be with the mother. Order 2 provided that should N attend G High School, then the current orders be varied again, changing arrangements to a different form of joint residence.
In respect of A, Order 5 is sought conditional upon A’s acceptance at SP’s Grammer in either 2004 or 2005. If she were to be accepted to attend at the said school, the father seeks that on and from 1 January of the year of enrolment that the current Orders be varied so that A resides with him, except for, again, certain periods of time.
The application before me today, is an application by the respondent mother seeking that the father's application should be summarily dismissed. It is sought to be dismissed on the basis of what's referred to as the principle in Rice and Asplund a decision of the Full Court of the Family Court, reported in (1978) 6 Fam LR 570, and (1979) FLC 90-725.
It is the mother's submission that the case sought to be brought by the father does not satisfy this test in that there has not been such a change in circumstances since the orders were made less than a year ago, as to require the Court to reopen the question of the residence children.
Miss Bevan, for the mother, has brought the application as a threshold application.
The Full Court of the Family Court, has a series of judgments placed residence orders, formally custody orders, in what appears to me a special category governed by the principal that a Court should not lightly entertain an application to reverse an earlier residence order.
In the decision in Hayman (1976) FLC 90-140, the Full Court considered, with approval, the decisions in McManus (1969) 13 FLR 449, in an unreported decision of the Honourable Barber J in the Supreme Court of Victoria in Gilder heard on 17 February 1967. In their joint judgment, Justices Murray and Lusink said:
“Whilst it is true that custody is never final, it is not open to an unsuccessful party to return to Court repeatedly in the hope of obtaining a favourable order. It may be that circumstances have altered to such a degree that it is essential in the interest of the child that questions relating to custodial arrangements be re‑litigated. However, it is accepted that there must be real issues to be decided, issues, which have arisen which, have not been previously traversed.”
The principle in Rice and Asplund can best be quoted by saying:
“The Court should have regard to any earlier order and to the reasons 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. The changes, an ever present factor in human affairs. Therefore the Court would need to be satisfied by the application, that 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.”
This matter was further considered by the Full Court of the Family Court in the decision in Freeman (1987) FLC 91-857 which was an application to discharge a custody order that had been made by consent.
In the decisions of Bennett (1990) Fam LR 397 and (1991) FLC 92–191, in King and Finneran (2001) FLC 93-079 and D and Y (1995) FLC 92–581, the Court in each case looked at the situation as to whether an application of this nature should be dealt with as a preliminary issue or a threshold issue, or whether it should be considered on a final basis.
In Rice and Asplund, it was held that these are not necessarily matters for a preliminary submission, but they are matters that the judge should consider in his reasons for decision.
The principles that should be derived from these authorities, I would summarise as these:
a)the onus is on the applicant who seeks to reverse an earlier residence 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;
b)the principle is the same whether the earlier order is one made after a defended hearing or one which was made by consent, provided that the relevant issues were considered;
c)there is discretion in the trial judge or Federal Magistrate to decide the question of a change in circumstances as a preliminary issue or to proceed to a full hearing;
d)the change in circumstances must be sufficient to warrant a re-examination of the issue of residence, but need not satisfy the Court that those changed circumstances would result in a change to the orders. Only that there is a real likelihood of such a change;
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.
In this case, the father submits that the children's schooling is the primary issue to be decided. In his submission, the question of the residence of the children or a change in residence of the children, is one that is subsidiary to that issue and indeed, he said that he had raised a question of a change in residence should N, in particular, be in a position to change schools or attend that particular school as a result of some misgivings expressed by the mother about the child's ability to travel to the particular school.
The mother points out, justifiably; this is a residence application to change residence, which was a matter that was considered when the parties were legally represented as recently as 29 August. Less than a year ago.
I am of a view that the orders that are sought by the father relate principally to the question of the children's schooling. It is not an application in respect of either child to vary the question of the child's residence per se, it is a question of if the child attends a particular school as sought by the father, that the question of residence needs to be reconsidered.
Whilst Ms Bevan, for the mother, characterises the application as a self-executing order, I am more of the view that it is an application to vary residence conditional upon the father being successful in this application in respect of the children's schooling arrangements.
It would certainly be difficult, on the material that is presently before the Court, to make a case to vary the arrangements for the residence of children, if there were not a change in circumstances relating to the children's schooling. In other words, I am of a view that any change to the schooling arrangements of the children would need to be relied on as the change in circumstances sufficient to reopen the question of residence.
Of course, if, as the father submits, the question of the children's schooling is the primary question. It does not necessarily follow that if his application is successful, that there would be a change of residence in respect of either child. That is a matter that would need to be considered at the time in the light of those circumstances.
Indeed, it is fair to say that it would not automatically follow. It would, to my mind, be sufficient for the Court to consider anew what was the best residence arrangement. I do not think that we have reached that stage in these proceedings.
I have come to the view, therefore, that because of the nature of the application made where the change in schooling is a condition precedent to the change in residence, that this is one case where it is not appropriate for the test in Rice and Asplund to be applied as a preliminary or threshold question. It is more a case that the Court should consider on a final basis, and of course, it is open for the Court to take that approach as was suggested in the decision in Rice and Asplund itself.
In many cases, it is more convenient and suitable to deal with the matter as a threshold issue. This is one case, however, where I believe that the reverse applies.
At this stage, the application for summary dismissal is refused.
I would indicate, however, that the question of whether a sufficient change of circumstances has been made out to vary arrangements for residence is a matter that I will revisit when the matter comes before me for final hearing. The matter can then be considered on the basis of the evidence relating to the proper arrangements for schooling.
What I propose to do, therefore, is to list this matter for final hearing.
As promised, I will grant liberty to apply on 3 days’ notice.
I require a transcript of my reasons for the decision on the summary dismissal application.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: C. Soliman
Date: 18 August 2003.
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