Arena & Arena (No 4)
[2024] FedCFamC1F 22
•31 January 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Arena & Arena (No 4) [2024] FedCFamC1F 22
File number(s): WOC 1226 of 2019 Judgment of: CURRAN J Date of judgment: 31 January 2024 Catchwords: FAMILY LAW – PARENTING – Application in a Proceeding – Parental Responsibility – Where father seeks an order for equal shared parental responsibility to be reinstated – Where father seeks orders for a pet to travel with the children for his time with them – Where final property orders previously made by consent for the pet to travel with the children – Where mother seeks Applications to be dismissed – Where sole parental responsibility ordered on final basis by consent previously – Application of Rice and Asplund – Jurisdiction to make orders regarding a pet in parenting proceedings – Determined no significant change in circumstances – Determined no jurisdiction to make orders regarding a pet in parenting proceedings – Application dismissed Legislation: Family Law Act 1975 (Cth) ss 60CA, 69ZL Cases cited: Arena & Arena(No 3) [2023] FedCFamC1F 1129
Defrey & Radnor [2021] FamCAFC 67
Grunseth & Wighton (2022) FLC 94-099; [2022] FedCFamC1A 132
Rice and Asplund (1979) FLC 90-725; [1978] FamCA 84
Division: Division 1 First Instance Number of paragraphs: 64 Date of last submission/s: 13 December 2023 Date of hearing: 21 November 2023 Place: Sydney Counsel for the Applicant: Mr Cataldi (later withdrew) Solicitor for the Applicant: John Stonham & Co (later withdrew) The Applicant: Litigant in Person Counsel for the Respondent: Mr Lawrence Solicitor for the Respondent: Maguire & Mcinerney Lawyers Solicitor Advocate for the Independent Children’s Lawyer: Ms Dodson Solicitor for the Independent Children’s Lawyer: Legal Aid NSW ORDERS
WOC 1226 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR ARENA
Applicant
AND: MS ARENA
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
CURRAN J
DATE OF ORDER:
31 JANUARY 2024
THE COURT ORDERS THAT:
1.Orders 2 and 4 of the Application in a Proceeding filed by the father on 1 November 2023 be 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 Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 the pseudonym Arena & Arena has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CURRAN J:
These reasons for judgment were delivered orally and have been corrected from the transcript.
Consistent with the provisions of s 69ZL of the Family Law Act 1975 (Cth) (“the Act”) I set out my reasons in short form.
INTRODUCTION
This matter concerns the children X, born 2009 and Y, born 2010 (“the children”). It is significant to note that X has special needs. At age five, he was diagnosed with Autism Spectrum Disorder with moderate developmental delay. He also has been diagnosed with Attention Deficit Hyperactivity Disorder.
The final hearing in this matter commenced on 28 August 2023 for 4 days. On the final day of this hearing, final orders were made by consent in respect of certain matters including, but not limited to, the mother having sole parental responsibility. Final judgment in relation to the remaining issues in dispute was reserved.
On 21 November 2023, an application was granted for the final hearing to be reopened for the purpose of admitting into evidence another affidavit of each party following events surrounding Father’s Day. The final hearing continued that day with cross examination of each the mother and father, followed by submissions. At that time, both parties were represented. At the conclusion of the evidence, final determination of the matter was reserved.
Upon the final judgment being reserved on 21 November 2023, an interim hearing was commenced in relation to the father’s Application in a Proceeding filed 1 November 2023 and mother’s Response to Application in a Proceeding filed 17 November 2023.
The father’s time had been ceased following events on Father’s Day 2023.
The father’s legal representative withdrew, and was excused, shortly after the commencement of the interim hearing. The father continued with the interim hearing unrepresented.
As a consequence of the father’s counsel withdrawing, I offered, and the father accepted, the opportunity to provide written submissions within 7 days in respect of the orders he sought as to parental responsibility and the orders he sought in respect of a therapy animal. This was in circumstances where one aspect I required submissions on was as to the applicable jurisdiction to make orders in a parenting proceeding about the pet, where property orders in respect of the pet had already been made by Judge Altobelli, as he then was, on 3 July 2020.
On 22 November 2023, judgment was delivered in respect of the other interim issues in respect of the children. Therefore, this judgment supplements the previous judgment of Arena & Arena (No 3) [2023] FedCFamC1F 1129, determining the remainder of the issues in the father’s Application in a Proceeding filed 1 November 2023. I will not seek to repeat the facts, but only those relevant to the two issues for determination in this judgment.
At the hearing of the judgment delivery on 22 November 2023, the father sought an extension until 13 December 2023 to file his written submissions. I granted that extension.
The father filed his written submissions on 13 December 2023 in support of his application.
It is noted that the mother and Independent Children’s Lawyer provided submissions orally in court at the interim hearing on 21 November 2023.
MATERIAL RELIED UPON
The father
In the father’s case, I have read and had regard to:
(a)Application in a Proceeding filed on 1 November 2023;
(b)His affidavit filed on 1 November 2023;
(c)Written submissions filed on 17 November 2023;
(d)Case Outline Document filed 17 November 2023;
(e)Family Report of Ms C dated 23 June 2023;
(f)Dr F’s Report dated 15 September 2020;
(g)Written submissions filed 13 December 2023 concerning parental responsibility; and
(h)Separate written submissions filed 13 December 2023 concerning the pet.
The mother
In the mother’s case, I read and have had regard to:
(a)Response to Application in a Proceeding filed on 17 November 2023;
(b)Her affidavit filed on 17 November 2023;
(c)Case Outline Document filed 20 November 2023; and
(d)Family Report of Ms C dated 23 June 2023.
Counsel for the mother made oral submissions on the issues of parental responsibility and orders in respect of the pet.
The Independent Children’s Lawyer (“ICL”)
In the ICL’s case, I read and have had regard to:
(a)Case Outline Document filed on 20 November 2023;
(b)The minute of orders sought (which was found at pages 59-60 of the mother’s affidavit filed 17 November 2023); and
(c)Written submissions filed on 17 November 2023.
The ICL made oral submissions on the issue of parental responsibility, and otherwise relied on her written submissions filed 17 November 2023, in relation to both parental responsibility and the pet.
PARENTAL RESPONSIBILITY
In his Application in a Proceeding filed 1 November 2023, the father sought the following interlocutory order in relation to parental responsibility:
2. To reinstate parental responsibility for the father.
In his written submissions filed 13 December 2023, the father stated that the order sought was:
That the mother and father shall have joint parental responsibility (PR) for the children, [X] born […] 2009 and [Y] born […] 2010.
Order 1 of the orders dated 31 August 2023, made by consent and on a final basis, provides:
1.That the mother shall have sole parental responsibility for the children, [X] born […] 2009 and [Y] born […] 2010 provided that the mother notify the father in writing of any decision relating to the long term care and welfare of the children, including but not limited to:
1.1. decisions about which schools the children shall attend;
1.2.decisions about elective surgery, treatment of chronic conditions, orthodontic treatment and other long term medical issues affecting the children;
within seven (7) days of making such decision.
The relevant application seeks equal shared parental responsibility orders on an interim basis, in circumstances where a sole parental responsibility order has been made on a final basis by consent.
The substance of the father’s affidavit and written submissions are in support of his application to set aside the final sole parental responsibility order made by consent on 31 August 2023.
The law
In determining this issue, the court must have regard to the principles from the Full Court in Rice and Asplund (1979) FLC 90-725 (“Rice and Asplund”), such that it would require a significant change of circumstances since the making of the final order to vary the orders.
The Full Court in Defrey & Radnor [2021] FamCAFC 67 summarised the law concerning Rice and Asplund as follows:
19.In our view, the Rice & Asplund test applies to all applications which seek to revisit parenting orders. Sometimes the test will be easily satisfied even though the issues to reconsider are major ones and sometimes the test will be easily satisfied even though the issues to be revisited are relatively minor in character. In both situations, the overarching test is to be applied, namely, (having regard to the best interests of the child) new events or changed circumstances have to be sufficient to provoke a new inquiry.
20.It is also useful when considering, as a preliminary matter, what issues a parent might be permitted to re-litigate, to remember that under s 69ZQ(1)(a) of the Family Law Act 1975 (Cth) (“the Act”), there is a mandatory requirement to decide which of these issues in the proceedings require full investigation and hearing.
21.The rule in Rice & Asplund involves the exercise of discretion and not merely a process of making factual findings. That is because the “rule” is a manifestation of the best interests principle. All s 60CC(2) and (3) matters, so far as they are relevant, must be considered, to the extent that they can be, based on the material before the court. The rule focuses particularly on s 60CC(3)(l) and the preference to make final orders in parenting matters that are least likely to lead to the institution of further proceedings in relation to the child. Axiomatically that is because unless other considerations are more weighty, it is not in the best interests of a child for that child to be the subject of repeated litigation between his/her parents. There is a focus in an application of this kind upon the change(s) in circumstances that outweigh the negative impact of reopening litigation. Although when considering the preliminary issue, if cross-examination is not permitted, then the evidence of the father is to be taken at its highest, and it is not only the father’s evidence that is considered.
22.Consequently, the challenge to the primary judge’s discretionary decision is one to which the normal principles in House v The King (1936) 55 CLR 499 and Gronow v Gronow (1979) 144 CLR 513 apply. The primary judge’s task was a two-staged process. First, to make findings of fact as to what changes there had been in circumstances since the making of the 2015 orders and secondly, to assess whether or not the father had established that these changes are sufficient to provoke a new inquiry, or put in another way, whether the father has established a prima facie case of changed circumstances that would justify embarking on a second contested parenting hearing as being in the child’s best interests.
Determination
The father submits that there is evidence before the Court that there has been a significant change in circumstances since the final hearing when the order was made by consent. He contends that this change in circumstances is that the mother unilaterally ceased the children spending time with him, and that the absence of meaningful time with the father has caused a significant change to the children’s relationship with him. He submits that this represents a “significant change as it has not given the children an opportunity to maintain a relationship with their father.” The father submits that this would cause the Court concern as to the mother’s decision-making after the conclusion of the final hearing.
The father also submitted that the Court reinstating the father’s time in the previous interim judgment from 22 November 2023 shows acceptance that a significant change has occurred.
Counsel for the mother submitted that there was no necessity to make such an interim parental responsibility order in circumstances where it is common knowledge that there is a lack of trust and effective communication between the parties. It was also noted that there are no decisions that need to be made that are pressing or that are sought to be made.
Counsel for the mother went on to submit that if the father was seeking to set aside the final consent orders, that would have to be a different application. When the matter was reopened earlier on the day of the interim hearing, no party sought to vary the final orders. It was submitted that if that application was to be made, it should have been made then.
The mother contended that the application should be dealt with under Rice v Asplund and dismissed, as there is no evidence to meet the necessary threshold.
As referred to in the father’s written submissions, Rice and Asplund relevantly provided that the test is, the court “should not lightly entertain an application… To do so would be to invite endless litigation for change is an ever present factor in human affairs… there must be evidence of a significant change in circumstances.”
The ICL contended that there was no evidence before the court to establish: that there has been a significant change in circumstances to set aside final parenting consent order for the mother to have sole parental responsibility; that extending and inviting further litigation is a consideration that weighs heavily on the parties, the children and court resources; and that it is preferable to make an order that would be least likely lead to the institution of further proceedings.
The issue of time between the children and their father remained in contest.
That there was a dispute in respect of time following Father’s Day does not, in my view, constitute a change of circumstances in respect of parental responsibility, and there is no other evidence relied upon by either party that satisfies me that the matter should be relitigated. I made orders on 22 November 2023 as to the time to occur each Tuesday, Thursday, and Sunday, and in particular that the time for the children to be returned would be 8.30pm.
I am not satisfied as to the threshold requirements to vary final orders made by consent, in circumstances where each party was represented. There is no evidence of a significant change in the circumstances that has been made out. The order was made at the end of the evidence at that time and was by consent.
The father in his written submissions addresses why an order for equal shared parental responsibility would be in the children’s best interests. As I have said these matters are not relevant as the Rice and Asplund threshold has not been met, however, I wish to record some factors that that may be relevant.
If parental responsibility was a contested issue at final hearing, the mother’s counsel submitted that she would have presented, in submissions, a summary of the evidence that supports the order for the mother to have sole parental responsibility and supported a finding that equal shared parental responsibility would not be in the children’s best interests. Those submissions, counsel submitted, would have been:
(a)Evidence of the high-conflict relationship between the parties which supports a finding that their relationship is fraught;
(b)Evidence of difficulty with communication between them;
(c)The fact that Court Child Expert opposed such an order due to the potential exposure of the children to further conflict; and
(d)There would be a high risk of further litigation between the parents.
It was submitted that the order was made by consent, and that the Court was satisfied that such consent orders were in the children’s best interests.
The ICL submitted that it would be entirely contrary to the children’s best interests to facilitate a reopening in relation to parental responsibility which would further prolong the litigation and the conflict. I am persuaded by the submissions made both by the mother and the ICL.
The father’s affidavit filed 1 November 2023 and written submissions filed 13 December 2023 made reference to the final parental responsibility order being made “under duress”, and that the father had reluctantly consenting to the order. Other than asserting that he was under duress, the father presented no evidence of the alleged duress he faced when consenting to the order. He was represented and the submissions at the conclusion of the trial continued with the orders having been made by consent.
There are no parental responsibility decisions that have been identified as pressing, or about which submissions were made relevant to the interim proceeding, and final determination is reserved.
Accordingly, I decline to vary the final orders made by consent on the final day of hearing in relation to parental responsibility. I am not satisfied that the threshold required in Rice and Asplund has been met. This application is dismissed.
THE PET
In his Application in a Proceeding filed 1 November 2023, the father sought the following interlocutory order in relation to a pet, formerly the parties’ family pet and a therapy animal:
4. The Applicant Wife ensure that [the pet], travels with the children when they are spending time with the Respondent Father on Sundays of each week and additionally at the request of the children.
On 3 July 2020, Judge Altobelli made final property settlement orders by consent. Order 20 of the consent minute annexed to the final orders stated:
20.That within 14 days the Applicant Wife and Respondent Husband do all things and sign all documents to transfer registration of the [pet] to the Applicant Wife and from thereon, the Applicant Wife ensure that [the pet], travels with the children when they are spending time with the Respondent Husband where reasonably possible, or as further agreed between the parties.
The father, in his submissions, alleges that the mother has chosen to not abide by these orders since they were made, and that she is still currently breaching that order.
Jurisdiction
The Full Court at [63] in Grunseth & Wighton (2022) FLC 94-099; [2022] FedCFamC1A 132 (“Grunseth & Wighton”) stated that:
As much as it will pain pet lovers, animals are property and are to be treated as such. Questions of attachment are not relevant and the Court is not, in effect, to undertake a parenting case in respect to them.
Judge Tonkin in Davenport v Davenport(No 2) (2020) 62 Fam LR 222; [2020] FCCA 2766 stated:
[38] In my view the husband’s application is not an interlocutory application for the adjustment of property interests and does not fall within Pt VIII of the FLA. In Strahan v Strahan (Interim Property Orders) (2009) 42 Fam LR 203; (2011) FLC 93-466; [2009] FamCAFC 166, the Full Court indicated that in any application for interim property settlement the court must consider whether there is jurisdiction to make the orders sought. I am satisfied that the Court has no jurisdiction under Pt VIII of the FLA to make an order for “shared custody” of a dog.
…
[43] Nor did he identify any provision under the FLA to found jurisdiction for “shared custody” of the dog. Formerly Pt VII of the FLA dealt with “custody” issues however those issues related to the “custody” of children and not dogs or other pets. The Macquarie Dictionary defines child (plural children) as “a baby or infant, a boy or girl, a son or daughter, any descendant.” In Law “a young person within a certain age determined by statute.” ‘D’ the dog is none of the above. I am not satisfied that the husband’s application falls within Pt VII of the FLA.
In that decision, Her Honour dismissed the application for shared custody of the dog for want of jurisdiction.
Determination
The father says that the pet became, and still is, an important part of the parenting strategy around X, given the therapeutic value that he provides X in relation to his special needs. The father says that the pet is important in the context of managing X’s behaviours, and hence, X should be considered in the parenting proceedings. It is relevant that the father has another therapy animal in his home. I infer that animal provides therapeutic value for X with his special needs.
The father submitted that the order he seeks is an order that will be in each of the children’s best interests, in particular X.
The father deposes that the children, particularly X, have revealed that they would like the pet to attend the father’s home with them, and that they have asked the mother for this to occur. The mother gave evidence that the children have never asked her to take the pet with them when they visit their father. I cannot make a finding in relation to this conflict.
The father submits that the Court has the jurisdiction to make orders in respect of a pet in parenting proceedings, as the pet is of significant therapeutic value to X who has special needs and therefore it is in the children’s best interests that the pet holds a place at both households.
The mother deposes that since the father, she alleges, withheld the pet from X at separation, X has been extremely anxious about the pet spending time with the father. The father submits that this statement is false, and that following separation he facilitated time between the pet and the children, until the mother allegedly entered the home and unilaterally removed the pet.
The ICL submits that the Court lacks jurisdiction to make orders in respect of an animal in parenting proceedings.
Similarly, counsel for the mother submits, with reference to Grunseth & Wighton, that a pet is a chattel not to be dealt with in parenting proceedings.
In circumstances where the father was unrepresented, I have understood his submission to be twofold, namely:
(a)That the pet having therapeutic value for X has relevance to the parenting proceedings due to the paramount consideration of the child’s best interests under section 60CA of the Act; and
(b)That the previous order made created an obligation on the mother to deliver the pet when the children were dropped off.
I find that the pet is a chattel, and the court has dealt with the ownership of the pet at order 20 of the consent minute annexed to the orders of Judge Altobelli on 3 July 2020, transferring the registration of ownership of the pet to the wife.
Insofar as the father contends the mother had an obligation to facilitate the time with the pet the order states “the Applicant Wife ensure that [the pet], travels with the children when they are spending time with the Respondent Husband where reasonably possible, or as further agreed between the parties”. I am not dealing with a contravention application, but if one were filed, given the high tension and lack of communication between the parties since the consent order was made nearly four years ago now, the interpretation of “reasonably possible” would no doubt be carefully scrutinised.
As I say, it is my determination that I do not have jurisdiction to deal with the pet in the parenting proceedings, and orders as to his ownership have previously been made. Even if I was wrong in respect of jurisdiction, and assuming I accepted the argument that there may be therapeutic benefit to X in the pet travelling with him (noting that I have no evidence of this therapeutic benefit to X), on balance, the extreme tension and mistrust between the two parents in my view would outweigh any possible benefit to X for such an order to be made. I would not make such an order had I determined I had jurisdiction to do so, for the reasons that follow.
It is clear to me that the parties’ have great difficulty communicating or in agreeing to the most simple of arrangements. An example of this is the changeover time of 8.00pm or 8.30pm needed judicial determination in November 2023. I am of the view that any order requiring the handover of X, or any interaction in respect of X, would likely expose the boys to further parental conflict and ongoing litigation, which is evidently not in the boys’ best interests. These parties, over several years, have been unable to agree on almost any matter without judicial determination.
Secondly, the responsibility, in circumstances where the parties’ communication is so strained, would likely land with Y to facilitate the pet’s attendance at changeover. As stated by the Court Child Expert at paragraph 66 of the Family Report, Y “presented as a child under considerable and intensifying pressure and as attempting to navigate what he understands is a particularly poor parental relationship.” An order for the pet to travel with the children for time with the father each Sunday would likely increase pressure on Y, which is not in his best interests, noting the Court Child Expert’s concerns as to the level of pressure he presented with.
In summary, I do not have jurisdiction to make an order regarding a pet pursuant to parenting orders. Orders have been made by the Court as to the ownership of the pet and the transfer of such ownership has occurred. However, even if I had such jurisdiction, the tension such an order may create in my view, and the potential parental conflict that the children would be exposed to, outweighs any benefit to a child of such an order, whether at an interlocutory stage or on a final basis.
The present application is an interlocutory parenting application. Final property orders were made on 3 July 2020, finalising the legal aspects of the ownership of the pet.
Accordingly, order 4 of the orders sought by the father in the Application in a Proceeding filed 1 November 2023 is dismissed.
I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Curran. Associate:
Dated: 31 January 2024
6
1