Yuen & Ainsworth

Case [2022] FedCFamC1F 1025

Federal Circuit and Family Court of Australia

(DIVISION 1)

Yuen & Ainsworth [2022] FedCFamC1F 1025

File number(s): BRC 170 of 2021
Judgment of: JARRETT J
Date of judgment: 20 December 2022
Catchwords:  FAMILY LAW – parenting – where the applicant contends there has been a significant change of circumstances which would provoke a fresh inquiry into what arrangements are in the best interests of the child – where only one of the facts alleged by the applicant is identifiable as a change – where that change does not persuade the court further litigation is in the child’s best interests  
Legislation:

Family Law Act 1975 (Cth)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)

Cases cited:

Defrey & Radnor [2021] FamCAFC 67

Elmi & Munro (2019) FLC 93-912

Marsden v Winch (2009) 42 Fam LR 1

Rice & Asplund (1979) FLC 90-725

Searson & Searson (2017) FLC 93-788

Shan & Prasad (2020) 61 Fam LR 440

Stern & Colli [2022] FedCFamC1A 95

Division: Division 1 First Instance
Number of paragraphs: 84
Date of last submission/s: 26 October 2022
Date of hearing: 26 October 2022
Place: Brisbane
The Applicant: In-person
The Respondent: In-person
Solicitor for the Independent Children's Lawyer: Ms Berck

ORDERS

BRC 170 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS YUEN

Applicant
AND:

MR AINSWORTH

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

JARRETT J

DATE OF ORDER:

20 DECEMBER 2022

THE COURT ORDERS THAT:

1.The application filed on 7 January, 2021 and the application in a proceeding filed on 27 May, 2022 are dismissed.

2.By 4.00pm on 20 January, 2023 the respondent file and serve written submissions exceeding no more than 10 pages in length addressing the relief sought in paragraph 2 of the response filed on 3 February, 2021 and paragraph 4 of the response to an application in a proceeding filed on 3 July, 2022.

3.By 4.00pm on 10 February, 2023 the applicant file and serve written submissions exceeding no more than 10 pages in response to the respondent’s submissions delivered in accordance with order 2 hereof.

4.In the event that either party seeks a further oral hearing in respect of the relief sought in paragraph 2 of the response filed on 3 February, 2021 and paragraph 4 of the response to an application in a proceeding filed on 3 July, 2022, that party must include a statement in their written submissions to that effect.

5.Otherwise the response filed on 3 February, 2021 and the response to an application in a proceeding filed on 3 July, 2022 are dismissed.

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…

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AGLC
Yuen & Ainsworth [2022] FedCFamC1F 1025
Case
[2022] FedCFamC1F 1025
Decision Date

CaseChat Overview and Summary

In this matter, the parties, Yuen and Ainsworth, are engaged in a dispute concerning parenting arrangements for their child, X. The case was heard in the Family Court of Australia. The applicant, Yuen, sought a revision of the parenting orders made in July 2020, alleging that there had been a change in circumstances that warranted a fresh inquiry into the welfare of the child. The applicant made several allegations against the respondent, Ainsworth, including that he lied to X about the applicant and another country, failed to pay child support, and did not financially support X. The court had to decide whether the applicant had demonstrated a change in circumstances sufficient to warrant a new inquiry into X's welfare.

The legal issues before the court were whether the applicant had established a prima facie case of changed circumstances since the making of the orders in 2020 and, if so, whether those changes were of a quality that necessitated a new inquiry into the welfare of X. The court considered the evidence presented by the applicant, including her complaints about the respondent's behaviour and the development of a medical condition in X that required surgery. The court also examined the submissions of the independent children's lawyer and whether the applicant's concerns were historical matters that should have been raised during the trial or were more appropriately the subject of a contravention application.

The court found that none of the matters relied upon by the applicant demonstrated a change in circumstances except for the development of a medical condition in X. However, the court held that this change was not of such significance as to demand a fresh inquiry into X's welfare. The court noted that children becoming sick or unwell was part of ordinary human experience and did not signify a change in circumstances of the relevant quality. Furthermore, the court accepted the submissions of the independent children's lawyer that the concerns raised by the applicant relied upon historical matters that were either raised or available to be raised at the trial of the proceedings in 2020. Consequently, the court held that the applicant had not established a prima facie case of changed circumstances sufficient to justify a new inquiry into X's welfare.

The court dismissed the applicant's application for a revision of the parenting orders, stating that the issues identified by the applicant in her evidence and submissions demonstrated no more than a continuation of the fractious relationship between the applicant and the respondent. The court held that the applicant's complaints were more properly the subject of a contravention application rather than a revision application. The court also dismissed the applicant's subsequent application filed on 27 May 2022, finding that it was an abuse of process. The court's final orders were that the application for a revision of the parenting orders be dismissed, and the applicant's costs be paid by the applicant.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Under this heading in her submissions, the applicant draws together her complaints that I have summarised above and asserts that the respondent is without “moral principles” because he lies to X about the applicant and Country P and does not pay child support or otherwise financially support X.Conclusions None of the matters relied upon by the applicant demonstrate a change in circumstances save one matter. That matter relates to the development by X of a medical condition and the dispute that has evolved about that. The medical opinion about the need for surgery is divided as is the parental opinion. Not all changes bear the requisite quality that demands a fresh inquiry in to the welfare of a child or children already the subject of a final parenting order. This is such a change. It is not, in my view, of such significance that it demands a fresh inquiry into X’s welfare. It is the type of change that is wrought by the passage of time and is part of ordinary human experience: King & Finneran [2001] FamCA 344 at [49]. Children become sick or unwell. That is to be expected. That X has developed a medical condition about which the parents cannot at this point agree does not signify a change in circumstances of the relevant quality. The applicant seeks a wholesale revision of the orders. I accept the submissions of the independent children’s lawyer that the concerns the applicant raises rely upon historical matters that were either raised, or available to be raised at the trial of the proceedings in 2020. Moreover, as I have suggested above, some of the applicant’s complaints are more properly the subject of a contravention application. The issues identified by the applicant in her evidence and submissions, even when taken at their highest demonstrate no more than a continuation of the fractious relationship between the applicant and the respondent and the myriad ways in which that has manifested since the trial. The applicant does not and cannot establish on her evidence a prima facie case of changed circumstances sufficient to justify embarking on a hearing of her application filed on 7 January, 2021. That application must be dismissed. Consequently, her application in a case filed on 27 May, 2022 must also be dismissed.

Ratio Decidendi

Legal Principle Established

My task then, having regard to the earlier order and to the reasons for and the material on which that order was based, is to determine whether either party establishes that there has been a change in circumstances since the making of the orders in 2020, or at least a prima facie case of such a change in circumstances and thereafter to assess whether or not those changes are sufficient to provoke a new enquiry into X’s welfare.Consideration The affidavit filed first in time on 7 January, 2021 by the applicant runs to 49 pages of deposition and another 218 pages of annexures. It was filed in support of an application for a stay of the July, 2020 orders pending appeal. It deals in part with matters that the applicant says have occurred following the making of the July, 2020 orders as well as reiterating matters that were in evidence before the trial judge. Within the post order category, the applicant complains that:(a)X does not tell the applicant what she has done in the father’s house when she has been with him – because the father and his family, the applicant says, tell X not to;(b)X’s behaviour is oppositional and aggressive;(c)X has been exposed to sexualised behaviour such that the applicant has sought advice from the police;(d)the respondent has contravened the orders in that he:(i)still (or sometimes) showers with X;(ii)does not observe the telephone contact times set out in the orders;(iii)makes telephone communication between the applicant and X generally difficult – something she argues is psychologically and emotionally abusive of X and denies X the opportunity to report serious concerns, placing her at risk;(e)the respondent is “enforcing” the orders about the applicant’s telephone contact with X when X is in his care;(f)the respondent does not interpret the July, 2020 orders correctly, but rather in his own way, particularly in respect of X’s time with him commencing in December, 2020;(g)this is the same situation from early 2016 throughout the whole of X’s life, the respondent lies, does not compromise, and cannot be communicated with.(h)the respondent harasses her “about phone contact with [X]” by reason of the times he calls for X to speak with the applicant when X is in his care;(i)the respondent exerts control by spending time with X over the telephone, (between 30 mins and 109 minutes according to the applicant’s evidence) “against her wishes”. Her evidence is such that it seems that the 109 minute phone call was a one-off occasion. As to the matters dealt with in the affidavit that were dealt with by the trial judge, the applicant repeats her claims and submissions about the respondent’s excessive alcohol consumption, drug use, mental health issues, failure to provide what the applicant considers is adequate financial support and myriad of other complaints. I will not detail them all. They were matters raised by her in the trial that led to the orders of 16 July, 2020. They are not changes in circumstances.