YAPP & WYNDHAM

[2020] FCCA 2122

FEDERAL CIRCUIT COURT OF AUSTRALIA

YAPP & WYNDHAM [2020] FCCA 2122

Catchwords:
FAMILY LAW – Application for parenting orders – interim hearing – Rice & Asplund – application dismissed.

Legislation:

Family Law Act 1975 (Cth), s.117

Federal Circuit Court Rules 2001 (Cth), Sch 1

Cases cited:

Marsden & Winch [2009] FamCAFC 152

Rice & Asplund (1979) FLC 90-725

SPS & PLS [2008] FamCAFC 16

Applicant: MR YAPP

Respondent: MS WYNDHAM

File Number: MLC 8709 of 2013

Judgment of: Judge McNab

Hearing date: 9 July 2020

Date of Last Submission: 9 July 2020

Delivered at: Melbourne

Delivered on: 13 July 2020

REPRESENTATION

Counsel for the Applicant: Ms B D'Angelo

Solicitors for the Applicant: Hartleys Lawyers

Counsel for the Respondent: Ms E Heggie

Solicitors for the Respondent: Victoria Legal Aid, Morwell

ORDERS

1. The father pay the mother’s costs of the Application in a Case filed

   
   

   28 April 2020 and dismissed on 12 May 2020 fixed in the sum of $3,921.00.

2. The amended application filed 25 June 2020 be dismissed.

AND THE COURT NOTES THAT:

(A)The father will spend time with the child, X born in 2012 on Tuesday evenings for dinner with such time to increase to overnight visits if the time goes well.

(B)Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 8709 of 2013

MR YAPP

Applicant

And

MS WYNDHAM

Respondent

REASONS FOR JUDGMENT

(Delivered ex-tempore and revised from transcript)

Application

1. On an application filed on 17 December 2019 and amended on 25 June 2020, the applicant father sought orders on an interim basis that:

   a)the previous final orders made on 19 September 2016 be discharged,

   b)that there be equal shared parental responsibility for the child X (“the child”), and

   c)that the child, for a period of six weeks, live with the father:

   i)from the end of school on Friday until the commencement of school on Monday; and

   ii)from the end of school on Wednesday until 8 pm and that thereafter on a week-about basis with the changeover to occur on Friday at the end of school or 4 pm if on a non-school day.

Material relied upon

1. The father relied upon affidavits sworn on 17 December 2019 and

   
   

   25 June 2020. There was also an affidavit filed by the father sworn on 28 April 2020 which was made in support of an application in a case filed by him on the same day. That application sought orders that the child live with the father and spend each alternative weekend with the mother. He also sought orders that an s.11F conference be organised to ascertain the views of the child.

2. The father had withheld the child from the mother citing safety concerns for the child because of the mother’s partner. On 12 May 2020, the court dismissed the application in a case and ordered that the father return the child to the mother.

Interim hearing

1. The matter was listed for an interim hearing on 8 July 2020 on the issue as to whether leave should be granted for the father to proceed with the matters applying the principles of Rice & Asplund. The mother opposed the application filed by the father and sought for it to be dismissed.

2. The father raised a number of grounds to establish that the circumstances of the parties and the child had changed sufficiently, such that it was appropriate and in the best interests of the child to consider the application and to amend the final parenting orders made in 2016. Those grounds being that:

   a)the child was four when the 2016 orders were made and the child is now eight;

   b)when the orders were made, the father was living about three and a half hours and then subsequently two hours from the mother’s residence, whereas he is now living about 15 minutes away;

   c)the father has expressed views that he would like to spend more time with the child and that he has concerns about the child living in the mother’s house;

   d)the child has viewed inappropriate films whilst in the company of the mother and her partner, particularly, ‘B Movie,’ which is rated ‘R’;

   e)the mother has failed to promote the relationship between the child and the father;

   f)the father expresses the opinion that he is aware that it is important for the child to have a relationship with both parents and that the child loves the mother and the father equally but is concerned that the mother is not encouraging this; and

   g)the father submitted it was appropriate to obtain a s.11F report for the court to ascertain the child’s wishes and to allow for his views to be ascertained.

3. The mother opposes the application and raises the principles in Rice & Asplund in opposition to the application.

4. The application represents the third set of proceedings initiated by the father in relation to the child. Proceedings were initiated in 2013 by the father. The final orders were made in July 2014 for the child to live with the mother and spend alternate weekends with the father. A family report was obtained in that proceeding. Further proceedings were issued in September 2015 which were also the subject of a family report.

5. In the second proceeding, allegations were made by the father in relation to the child being subjected to child abuse. Those allegations were not proved. Final orders were made by the court in that proceeding that both parents have equal shared parental responsibility for the child and that from the time the child commences school that he spend from 3.30 pm Friday until 4 pm Sunday not less than two weeks each month or at such other times as agreed between the mother and the father.

6. The father also initiated the application filed 28 April 2020 which I have referred to earlier.

Relevant Principles

1. The relevant principles that the court is required to apply in circumstances where there is an extant final parenting order as set out in the respondent’s outline of submissions which make reference to Rice & Asplund,[1] the case of SPS & PLS[2] per Warnick J and Marsden & Winch.[3] I won’t read those principles which were extracted accurately in the respondent’s outline. However, I will make specific reference to the extract of part of Marsden & Winch[4] which provides:

   Whether in a particular case a court should be willing to embark upon another hearing concerning the child and parent or whether to do so itself would itself be demonstrably contrary to the best interests of the child is a decision to be made in each particular case. How is that decision to be made? The court must look at:

   (i)the past circumstances, including the reasons for the decision and the evidence upon which it was based,

   (ii)whether there is a likelihood of orders being varied in a significant way as a result of a new hearing,

   (iii)if there is such a likelihood, that the nature of the likely changes must be weighed against the potential detriment to the child or the children caused by the litigation itself. 

   Thus, for example, small changes may not have sufficient benefit to compensate for the disruption caused by significant re-litigation.

   [1] (1979) FLC 90-725

   [2] [2008] FamCAFC 16

   [3] [2009] FamCAFC 152

   [4] ibid

Consideration

1. This is a case which has already been the subject of two previous applications and final orders. The third proceeding, being an application in a case, is the one that I now must decide. In my view, the factors pointed to by the father do not constitute a sufficient reason to allow him to embark on a further course of litigation regarding this child. He has already been the subject of two family reports.  The parents are apparently in high conflict and it is unlikely that the court would make orders for shared care or for the child to live principally in the father’s care. Shared care arrangements are those which generally require a reasonably high degree of co-operation between the parents and, as I have explained, such co-operation does not exist in this case.

2. The child has lived in the primary care of his mother for many years.

   
   

   As to the risks associated with the child remaining in that situation, I refer to the s.97Z report filed by the Department of Health and Human Services dated 22 May 2020 which provides under the heading Summary of Current Protective Concerns and Outcome:

   On 11 May 2020, Department of Health and Human Services received a report concerning safety and wellbeing of X. Concerns were raised that the father, Mr Yapp, is subjecting X to emotional harm and that historically he has been controlling towards Ms Wyndham and X.  It is also reported that X had a diagnosis of attention deficit hyperactive disorder (ADHD) and a paediatrician has advised that this should be managed through diet and changes to teaching methods. It was alleged that Mr Yapp feeds X high amounts of sugar, which is against medical advice.

   A family violence history check was conducted. There have been five recorded incidents of family violence between Mr Yapp and Ms Wyndham dating back to 2005, mostly relating to verbal arguments and a breach of an intervention order. Mr Yapp was recorded as a respondent in four out of five incidents whereas Ms Wyndham was reported as a respondent in an incident in 2015. There has not been a further incident recorded since. 

   It is assessed that there is no role for Child Protection at this point of time as there is no information to suggest that X is at risk of significant harm in either Ms Wyndham’s or Mr Yapp’s care.  The information acquired at intake indicates that X is not at level of risk which warrants further Child Protection involvement.

3. The matters raised by the father do not go to a point where it is necessary for this proceeding to be reopened and then thereby subjecting the child to further court processes. Further, I am not persuaded that a section 11F report regarding the views of the child would make any material difference to the decision that I have to make. The changes in circumstances are not sufficient to warrant reopening the case and are unlikely to move the court to make the orders that the father seeks in the application.

4. The mother indicated to the court that she would consent to a notation to these orders that:

   a)the mother agrees that in the off week the father have a meal with the child between after school and 6.30 pm on Tuesdays; and

   b)if the time spent goes well, she contemplates his time will increase to overnight with the time running from school pickup to the commencement of school Wednesday morning. The court will make an order including a notation to that effect.

Application for costs

1. The mother sought an order for costs in respect of the costs occasioned by the hearing and determination of the application in a case. The father resisted those orders on the grounds of impecuniosity and that it was not an unreasonable application to make. In my view, it is appropriate for the father to pay the scale costs of that application in circumstances where the father unilaterally failed to return the child in accordance with the existing final parenting orders and that the father was wholly unsuccessful in his application. The mother has been put to the expense of an additional hearing when proceedings were already on foot, and I accept that the scale costs are in the sum of $3,921 (see section 117(2)(d) and (e) of the Family Law Act 1975 (Cth).

2. I order that the father pay the scale costs of the application in a case filed on 28 April 2020 and dismissed on 12 May 2020 in the sum of $3,921 and otherwise dismiss the amended application filed on 25 June 2020.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge McNab

Associate:

Date: 31 July 2020