Alford and Clayton

[2017] FCCA 56

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALFORD & CLAYTON [2017] FCCA 56

Catchwords:
FAMILY LAW – Consideration of Rice v Asplund principles where applicant father seeks an order that he become the primary carer of the children – mother seeks more discrete Court intervention – both application and Response dismissed under the principles in Rice v Asplund.

Legislation:

Family Law Act 1975 (Cth)

Cases cited:

Rice v Asplund [1979] FLC 90-725
Carriel & Lendrum [2015] FamCA FC 43
SPS & PLS [2008] FLC 93-363

Applicant: MR ALFORD

Respondent: MS CLAYTON

File Number: HBC 924 of 2013

Judgment of: Judge McGuire

Hearing date: 13 December 2016

Date of Last Submission: 13 December 2016

Delivered at: Launceston

Delivered on: 2 February 2017

REPRESENTATION

Counsel for the Applicant: Ms K. Mooney

Solicitors for the Applicant: Tremayne Fay Rheinberger

Counsel for the Respondent: Mr P. Fitzgerald

Solicitors for the Respondent: Legal Aid Commission of Tasmania

ORDERS

1. That the Application filed 28 September 2016 and the Response filed 21 October 2016 both be dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT LAUNCESTON

HBC 924 of 2013

MR ALFORD

Applicant

And

MS CLAYTON

Respondent

REASONS FOR JUDGMENT

1. The applicant for substantive children's orders is the father in an application filed 28 September 2016. The mother argues that the application be dismissed pursuant to what is commonly known as the principle in Rice v Asplund[1] being that there has been no change of circumstance of the parties or the children of such significance, substance or materiality since I made final orders between these parents on 11 July 2014 so that the best interests of the children are served by re-litigating their parenting and living arrangements. Interestingly, however, the mother herself in her Response seeks a variation of the final orders of 20 July 2014 but of a more discreet nature limited to the location of changeovers. After some urging from the bench, counsel for the mother articulated his position as a dismissal of all proceedings but with a 'fall back' position being that the father’s application be dismissed with the mother being able to argue her further discrete issues.

   [1] [1979] FLC 90-725

2. The parties have two children being X (aged 6 years) and Y (aged 4 years).

3. The prior proceedings commenced when the mother unilaterally moved with the children from (omitted) in (omitted) northern Tasmania to (omitted) in southern Tasmania being a distance of some six or more hours of travel. The father obtained an interim order in his favour returning the children to (omitted).  The matter then proceeded as a 'relocation' case with each parent proposing to be the primary carer of the children. The matter took an interesting and unusual turn when, at the end of the evidence, the father’s counsel submitted that he would concede primary care to the mother provided that she returned her home base to anywhere between Launceston and (omitted). That proposal was rejected by the mother at the time although orders were ultimately made accordingly leaving that option.  The mother had apparently moved to southern Tasmania to pursue a new relationship. She did, however, move in later 2014 to Launceston.  That move activated orders whereby the father would spend time with the children each second weekend between Friday at 5.00 p.m. and Sunday at 5.00 p.m. 'with the changeovers to occur at (omitted) in Tasmania or otherwise be agreed between the parties in writing' together with half school holidays and with the children moving to live primarily with the mother in Launceston.

The father’s case for substantive orders

1. The father seeks an order that the children now live with him. He says that matters ran smoothly for the parties until about January 2016. The father says that the mother has since moved the children from greater Launceston to (omitted) which is 24km (omitted) of Launceston.  He says that she then expressed a wish to move again in June 2016 to (omitted) which is further from Launceston. The parties attended mediation and agreed that the mother would not move. He says that she then moved without his consent.  This claim is made against a background of a number of moves by the mother within Launceston since August 2014.

2. The father says that the mother has unilaterally changed the children’s schools although there is an existing order for equal shared parental responsibility. He says that she has instructed Y’s day carer not to provide any information to him. He says that he believes the mother has unilaterally discontinued Y’s speech therapy despite a long-standing agreement. He says that the mother attempted to unilaterally change the changeover locations and in doing so an argument developed between them whereupon she assaulted him whilst Y was in her arms. He says that subsequent intervention by Tasmanian Police resulted in him being charged with assault on the mother, being a charge that he will defend.

3. The father says that he has noticed changes in the demeanour of the children since the mother assumed their primary care. He says that Y is overly aggressive and that X sees a social worker at school on account of violent tantrums. The father says that the mother ignores his requests that they jointly attend on the social worker.

4. The father says that the mother has been charged with drink-driving and a further charge of driving whilst suspended with the children as passengers in the vehicle.

The mother’s case

1. The mother says that none of the above either alone or cumulatively constitutes a material change in circumstance.  In her affidavit she gives prima facie plausible reasons for what have been four moves of residence since August 2014.  Moreover, she says that the father gave his consent to the move to (omitted).  She says, in any event, that both (omitted) and (omitted) are satellite towns to Launceston and part of the greater Launceston area. She says that she is and has attended to Y’s speech therapy. She says that she is also concerned as to arguments between the parties and for this reason seeks that the discrete change in respect of changeovers to occur at the (omitted) Relationship Centre.

2. The mother proposes a change in contact changeovers to Devonport. She says that she is expecting a child in (omitted) 2017 and that the alternate travel to (omitted) is overly onerous.  She argues that the father provides limited child support which makes the additional travel even more onerous.

Section 11F Report

1. The parties were directed to attend upon a Family Consultant at Launceston on 24 October 2016. The contents of the subsequent report are unremarkable and generally consistent with the parties positions as above. The father is noted as being keen to proceed with his application for primary care of the children. The mother is noted as being supportive of time between the children and their father resuming in the form that existed previously (there being an hiatus in time following a police Family Violence order being issued in late August 2016).

Relevant Law

1. The definitive statement of the relevant principle comes from Evatt CJ in Rice v Asplund[2] as follows:

   The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order and to the reasons for 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 for change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant 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 …

   [2] [1979] FLC 90-725 at [78,905]

2. The Full Court in Carriel v Lendrum[3] observed in respect of the Rice v Asplund principle as follows:

   57.In a case where the principle in Rice v Asplund arises for consideration, there are two circumstances which are central to the decision. First, there will already exist a parenting order and, axiomatically, the terms of that order will reflect the best interests of the children at the time of its making. Second, the fact that an order has been made reflect’s that disputation between parties to a parenting dispute, such dispute being inherently contrary to the best interests of the children whilst it exists, has been brought to an end by a curial order.  Those twin circumstances dictate the conclusion that it cannot logically be in the best interests of the children to embark upon further litigation enquiring as to the children's best interests unless it is first demonstrated that a sufficient change in circumstances has occurred since the parenting order was made.

   [3] [2015] FamCA FC 43

3. It is commonly agreed that the discretion of the Court can be exercised to determine as a preliminary issue whether or not an applicant has established a significant or material change in circumstance.  Relevant, however, to the argument mounted in this matter by the mother are comments of Warnick J in SPS & PLS[4] where his Honour said:

   What the application of the rule can achieve if dealt with as a preliminary matter is different from what it can achieve if dealt with at the end of a full hearing … accordingly the rule may not impede hearing an application for a small alteration, which may require only a short and narrow enquiry, but may properly prevent a hearing in respect of more far reaching changes.

   [4] [2008] FLC 93-363

4. His Honour's comments are particularly pertinent for the matters now before me where the father seeks to re-litigate the broad issue of with whom the children shall live, whereas the mother proposes to re-litigate only the discrete issue as to the location of changeovers.

5. Trial courts are, of course, acutely aware of the fact that circumstances for parents and children will inevitably change following the making of final parenting orders. Nevertheless, it is not considered in children's best interests to attend on them the direct or vicarious stresses of family law litigation between their parents simply to consider the vagaries of life.  It is for this reason that the authorities import the adjectives such as 'meaningful', 'significant' and 'substantial' changes in circumstances before it will entertain more litigation.

Consideration

1. The fact of animosity between these parents is not, in my view, a significant change in circumstance. Some form of conflict necessarily sits behind all litigation and it then beholds parties to move forward armed with the court’s orders so as to cooperatively parent the children.  The incidents related by the father are, in my view, more aberration than a course of conduct on behalf of the mother (or either of them) necessitating further litigation.

2. The mother's changes of residence must be seen within context. She gives prima facie reasonable explanations for those changes. I accept that she remains generally within the greater Launceston locality being at most some 20 – 30km from central Launceston and, in my view, within the spirit of the father’s proposal and my orders made in July 2014.  It is a fact that people move house and, on occasions, a number of times.  This of itself is not, in my view, a material change of circumstance without any more probative evidence as to manifest negative impact on the children.

3. The section 11F Family Report notes the mother being supportive of a resumption of time between the children and the father following the police intervention in late August 2016. Again, I see this more as an aberration in what should be a cooperative relationship rather than a course of conduct or substantial change in circumstance.

4. There is an order for equal shared parental responsibility which carries with it numerous entitlements. The father is able to enforce his entitlements by simply providing copies of my orders to the children’s school or child carer and this should easily allow him access to teachers and the like without further litigation.

5. The father’s observations of the children's demeanour are generalised and uncorroborated save and except that X attends upon a school counsellor. At this level, however, I am not persuaded that the children's behaviour constitutes a change of circumstance of such significance or materiality that a re-litigation of the children’s parenting and living arrangements would be in their best interests or should be permitted.

6. Consequently, on consideration, I am not satisfied that, taken alone or cumulatively, the father's complaints in respect of the mother’s parenting are of such significance that there should be further litigation in respect of their major parenting arrangements noting that it was the father, in any event, who effectively conceded a primary care, albeit conditionally, to the mother as recently as 2014.

7. Similarly, I am not persuaded on the mother’s case that she successfully argues any relevant change circumstance in respect of the discrete issue of changeovers. My orders of July 2014 stipulate (omitted) as the designated changeover point, failing any agreement between the parties to the contrary. It appears that they have sensibly reached an alternative agreement being alternating between Devonport and (omitted).  If this agreement falls over then (omitted) remains the court ordered changeover point.

8. The mother appears to argue that the animosity between the parties necessitates the use of a relationship centre as changeovers.  Again, the only serious incident documented in the parties’ affidavits is, in my view, properly categorised as an aberration rather than a course of conduct.  I again note the mother’s statement to the Family Consultant that she is “supportive of time between the children and their father if resuming in the form that existed previously”.

9. Further, the impending birth of the mother’s child and issues of child support payments do not to my mind constitute changes of circumstances of such significant that there should be further litigation between the parties even as to this discrete issue.  If the parties or either of them have concerns as to their inability to avoid conflict at changeovers then those changeovers might take place in in a public place at (omitted) or otherwise as agreed.

10. Generally, conflict is endemic in family law proceedings. Litigation is not normally seen as a pleasant or productive process for parents or children. Courts do not expect that parents will be enamoured with their orders. Courts do, however, reasonably expect that armed with those orders parents will move on to parent their children cooperatively and so as not to expose their children to residual parental conflict. On the basis that litigation itself is generally disruptive of parental relationships and can prima facie be seen as contrary to children's best interests, the courts have wisely placed the bar at a fairly high level on parents re-litigating children's disputes. To my mind, that bar is not crossed on this occasion.  The application and the response will both be dismissed.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Date:  2 February 2017