B and C - [2007] FMCAfam 666

FEDERAL MAGISTRATES COURT OF AUSTRALIA

B & C

[2007] FMCAfam 666

FAMILY LAW – Rice & Asplund.

Family Law Act 1975, s.60CA
Family Law (Shared Parental Responsibility) Act 2006, s.44

F & C [2004] FamCA 568
Rice & Asplund (1979) FLC 90-215

Applicant:

Respondent:

File Number:

SYC863 of 2007

Judgment of:

Altobelli FM

Hearing date:

18 June 2007

Date of Last Submission:

18 June 2007

Delivered at:

Sydney

Delivered on:

6 September 2007

REPRESENTATION

Counsel for the Applicant:

Ms Messner

Solicitors for the Applicant:

Stuart Fowler & Associates

Solicitor Advocate for the Respondent:

Mr Longworth

Solicitors for the Respondent:

Dettman Longworth

ORDERS

The Application filed 29 March 2007 be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYC863 of 2007

ANASTASIOS SOULIE B

Applicant

And

FRANCES MARY C

Respondent

REASONS FOR JUDGMENT

Introduction

The application before me is what is commonly known as a Rice & Asplund application. The rule in Rice & Asplund (1979) FLC 90-215 is well established. Its effect is that, before varying existing orders, the Court should be satisfied that there are circumstances which require the Court to consider afresh how the welfare of children should best be served. In the present matter the applicant father, B, filed an application on 8 February 2007 seeking to vary orders made by consent on 6 February 2006. The father's application was supported by affidavits filed 4 June 2007 by his current wife, P, and himself. By way of a response filed 8 March 2007, the respondent mother, C, asks for an order that the application be dismissed. The application for dismissal, pursuant to the rule in Rice & Asplund, was listed before me as a discrete issue and was heard on 18 June 2007.

Background

There are two children of the marriage, W who was born on 16 March 1992 who is currently 15 years old, and N who was born on 17 October 1998, who is currently eight years old, but will shortly turn nine years old. On 6 February 2006 the parents entered into consent orders relating to W and N. The file relating to those proceedings was tendered in evidence and became exhibit A4. That file indicates that the matter was listed for hearing before his Honour, Rose J, in the Family Court of Australia at Sydney on 6 February 2006. On that date, Rose J was invited to make orders in accordance with terms of settlement that had been signed by the parents, and their respective solicitors. It is quite obvious from the file that the parents were represented. The mother was represented by her current solicitor, Mr Longworth. The father was represented by Mr Williamson. He has different solicitors representing him in the present proceedings.
In general terms, the orders provide that the children have contact with the father each alternate week during the school term from 5 pm on Friday to school on the Monday, or to school on the Tuesday if the weekend falls on a long weekend when Monday is a public holiday. The orders also covered issues relating to the father's time with the children during school holiday periods and special days. At the hearing, the father was represented by his counsel, Ms Cohen. On the file there is, moreover, extensive affidavit evidence that was filed on behalf of both parents.

The Issues

In very simple terms, the father needs to establish that the circumstances that existed at the time the original orders were made have so changed that it is now necessary for the Court to reconsider what is best for W and N. The test is expressed in more comprehensive terms in the section dealing with the applicable law. By way of summary, the father argued that there were a number of changed circumstances that would warrant revisiting the issue of how much time the children spend with him. Those changes of circumstances include the following:-
·Changes in the residential arrangements of the father, the mother and the children.
·A change in the father's employment circumstances in that he was a casual teacher at the time of the orders, but is now permanently employed as a teacher.
·Changes in the mother's employment arrangements such that she is no longer available to care for the children after school.
·The father's remarriage to P.
·The relationship that the children have developed with P.
·W's increased involvement in Air League resulting in him not spending time with his father in accordance with the existing orders.
·The father's inability to negotiate with the mother for a change to the parenting arrangements which would enable him to spend more time with the children.
·The father's assertions that both N and W have expressed the desire to spend more time with him and that their views should be taken into consideration.
The father's position was succinctly summarised in the written submissions filed by his counsel, Ms Messner:-
The father submits that the above changes comprising a combination of the children's respective wishes to spend more time with their father, the father's now stable accommodation in close proximity to the children's schools, friends and their mother's residence, the father's stable relationship and the good relationship the children now enjoy with his wife, the father's now security of employment and the opportunity that that employment allows him to care for the children during weekdays, the mother's increasing work commitments hindering her ability to care for the children on weekday afternoons and W's increasing commitments to extra curricula activities and study requiring greater flexibility and the time that he spends with each of his parents, are significant changes in circumstances to satisfy the threshold test in Rice & Asplund.
On behalf of the respondent mother, it was submitted that there have been no changes of circumstances which would justify a variation to the orders made on 6 February 2006.

The Applicable Law

A useful statement of the relevant law is contained in the Full Court's decision in F & C [2004] FamCA 568, a decision of Kay, Warnick and O'Ryan JJ at pargraphs 36-47:
Relevant principles to be applied when summarily dealing with an application to relitigate residence issues
36. The Family Law Act 1975 provides in s.65D that in proceedings for a parenting order, the court may make such parenting order as it thinks proper and that a court may make a parenting order that discharges, varies, suspends or revives some or all of an earlier parenting order.
37. There are no guidelines or requirements contained in the Act as to when a court may refuse to entertain an application for the variation of an existing order, nor the matters that a court should consider in determining whether or not to exercise its jurisdiction (c/f s.83(2) – requirements to be satisfied before varying a maintenance order).
38. The principles that have been developed by the Full Court in such applications are well settled. In Rice v Asplund Evatt CJ, with whom Pawley SJ and Fogarty J agreed said at 78,905:
"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…"
39. In Griffiths and Griffiths (1981) FLC 91-064 at 76,500; (1981) 7 Fam LR 322 at 323-324; Lindenmayer J said:
"In order for the husband to achieve a change of custody, even after a full hearing on the merits, he must establish a significant change of circumstances since the last order was made; a change of circumstances sufficient to justify a review by the Court of the custodial situation…"
40. Nygh J, with who Evatt CJ and Burton J agreed, said in F and N (1987) FLC 91-813; (1987) 11 Fam LR 664 that the Court should be reluctant in assuming jurisdiction too soon after there has been a full and adequate hearing of the custodial dispute between the parties.
41. In Bennett v Bennett (1991) FLC 92-191; (1990) 14 Fam LR 397 Nicholson CJ, Simpson and Finn JJ accepted as correct the general principle expressed by the Full Court in Rice v Asplund that fresh applications for custody should not be entertained unless there existed a substantial change in circumstances.
42. In Saad v Saad (1993) FLC 92-332 at 79,519; (1992) 16 Fam LR 55 at 71 Baker, Lindenmayer and Moss JJ said:
"(3) Although it may be inappropriate, and is often unhelpful, in proceedings in relation to the guardianship and custody of or access to a child, to treat either party as bearing an onus of proof in relation to the welfare of the child, where a party applies for the variation or discharge of an existing order of that kind that party bears at least a forensic onus of placing before the court sufficient evidence of changed circumstances since the making of the existing order upon which the Court could be satisfied that it is in the interests of the welfare of the child to vary or discharge that order. (Rice and Asplund (1979) FLC 90-725; Freeman and Freeman (1987) FLC 91-857.)
(4) It was therefore not for the wife to adduce evidence sufficient to satisfy her Honour that Burton, J's [sic] orders should Cnue in force, but rather for the husband to at least place before her evidence sufficient to justify a reconsideration of those orders, and only if that were done was her Honour called upon to decide, in the exercise of her discretion, whether the welfare of the child required the discharge or variation of those orders, or their Cnuance."
43. In D and Y (1995) FLC 92-581 at 81,764; (1995) 18 Fam LR 662 at 671-672 Nicholson CJ, Baker and Tolcon JJ appear to have narrowed the circumstances in which a fresh application for a parenting order might be considered when their Honours said:
”The general principle, that fresh applications for custody should not be entertained unless there exists a substantial change in circumstances, has been consistently stated in cases such as Rice and Asplund, Zabaneh and Zanbaneh, and Bennett and Bennett.
In Bennett's case the Full Court considered a ground of appeal which argued that trial Judge had erred by embarking upon a full custody hearing without making it clear she had done so, when she ought to have first determined whether there was a sufficient change in circumstances to warrant doing so. The Full Court said it was a matter of discretion for the trial Judge:
'The fact that the determination as to whether or not to deal with a change of circumstances as a preliminary issue or to proceed to a full hearing is a discretionary matter, is supported by the remarks of the High Court in refusing leave to appeal in the recent case of   Lowe v Lowe (6 April 1990). In that case, Elliot J had, in fact, dealt with the threshold question as a preliminary matter and the High Court thought that it was within his discretion to do so, but made it clear that the matter was one of discretion. We may say in the present case, given its history, we would have been disposed to deal with the threshold question as a preliminary matter, but we are not satisfied that her Honour's discretion miscarried in embarking upon the course that she did.'
In the present case, we can see no reason for criticising Bell J for exercising his discretion to require the wife to establish as a preliminary matter whether there had been a sufficient change of circumstances to justify the reopening of the issue of custody.
There had already been a nine day hearing on this issue a little more than two years previously and the actual change in custody had only occurred following the giving of the decision by Warnick J on 17 December 1992. In such circumstances we consider that a Judge would be extremely loathe to reopen the issue of custody except on strong grounds and would normally require, as Bell J did, that the matter should be determined as a preliminary issue." (emphasis added, citations omitted).
44. Most recently, Collier J, when determining an appeal from a Federal Magistrate in King and Finneran (2001) FLC 93-079 dealt first with an argument that following the extensive amendments to the Family Law Act in 1995, it was now mandatory to conduct a full inquiry of the matters set out in s 68F whenever a parenting order is sought. We agree with his Honour’s view that the legislation has not changed sufficiently to cause that which could be done before the 1995 amendments, that is the application of a threshold test, to be unavailable since the coming into effect of the 1995 amendments. His Honour correctly observed at 88,367-88,369:
"41. The rule in Rice and Asplund is a rule evolved to protect children from involvement in further unnecessary litigation. To require a court to make a detailed determination of the matters set out in section 68F would defeat the purpose of that protection. It would mean that before the matter could be dealt with, a complete hearing, or …at least a hearing dealing with the section 68F factors, would have to be undertaken and completed.
42. A judge or magistrate exercising jurisdiction under the Family Law Act is not required to undertake the exercise of identification and evaluation that the husband urges. To do so would be to abolish for all effective purposes the opportunity of a court to make a threshold determination in cases where such an early end to the litigation was the best result for the children.
43. …It is clear that a trial judge has a discretion as to whether or not to deal with the matter at a threshold level or to embark upon a full hearing (see Bennett and Bennett (1991) FLC 92-191 ).
44. To apply the test in Rice and Asplund is to make an assessment on the material then available to the court as to whether or not the matters raised in that material make it necessary or proper in the best interests of the children, the subject of litigation, to allow further proceedings. In arriving at such a decision, the court will give consideration to the importance or seriousness of the issues raised, both individually and where necessary collectively, and the impact that they may have on the children. It may be necessary to assess whether or not the matters are indeed matters of change or whether they are completely fresh issues that require revisiting the earlier decision. This is not always a clear distinction.
…
49. Clearly, both words [‘significant’ and ‘substantial’] indicate something out of the ordinary course of events. To be either significant or substantial is to indicate that a matter is of importance, of consequence, of real worth, of ample or considerable amount, quantity, size etc. When related to a change in circumstances, this clearly requires that the change or changes relied upon must be of consequence and must be more than that which would occur by the passage of time or in the usual course of human activity.
50. … In D and Y (1995) FLC 92-581 their Honours of the Full Court made a finding that a trial judge has a discretion whether to deal with a change of circumstances as a preliminary issue or to proceed to a full hearing. Their Honours indicated that in the circumstances that prevailed in that case, that is, a nine day hearing a little more than two years previously, that a judge would be extremely loath to reopen the issue of custody, except on strong grounds. The word strong in that case is a departure from substantial or significant as used in earlier cases. It indicates clearly what is required. The change or fresh circumstance must be such that upon becoming advised of it and being satisfied of its existence, a court would be left in no doubt that it was necessary to relitigate the parenting issue in dispute between the parties. That is not to say that a court must be satisfied that the fresh or changed circumstance would result in a change to the orders. It merely indicates that the change or fresh circumstance must be such that if taken into account there is a real likelihood that a change may follow.
…
62. What is required is that a trial judge be satisfied that there has been demonstrated such a change that it must be a matter of concern and requires the court to examine the situation of the children afresh. There is no assistance to be gained from the authorities as to whether or not this can be done cumulatively. The law at present requires that there be a change such as to require re-litigation. That change can be made up of component parts or could rely on one single but major change. However, a cumulative basis for change in circumstances cannot be made simply by weight of numbers of the changes alleged to have occurred.
…
64. … the purpose of the rule is to protect the children from exposure to further unnecessary litigation."
45. Although this point was not argued before us it may be that there is need to add a caveat to Collier J’s view that it may be sufficient to allow a fresh application to proceed if there is a “real likelihood that a change may follow”. In CDJ v VAJ (1998) 197 CLR 172 at 204; FLC 92-828 at 85,449; 23 Fam LR 755 at 780-781; the High Court determined an appeal concerning the circumstances in which a Full Court might admit further evidence in a parenting case. McHugh, Gummow and Callinan JJ said:
"[117]   The discretion to admit further evidence obviously needs to be exercised with much care in parenting cases. The decision as to who should have the day to day care of children will so often be an agonising one, as indeed it is in the present case where both parents are anxious for their children's welfare. The advantage said to be attached to the opportunity of a judge at first instance to see and hear the witnesses on issues of credibility and the like may perhaps on occasions be exaggerated. Nevertheless, those advantages are likely to be real ones in a parenting case heard by a specialist judge whose decision will involve a choice of who will be a better 'custodian' of the children: sometimes either parent would be an excellent choice, and often neither would be ideal.
[118]     The need for caution is particularly great when an order for a change in the residence of children has been made and the appellant seeks to tender further evidence pointing to changes in circumstances, outlook or apparent welfare. In all but the most ideal of circumstances, some time will be taken by children to adapt to their different situations. So too the public and private interest in the finality of litigation must be given some weight even in cases of this kind. The important private interests of children are unlikely, save in special circumstances, to be served by frequent displacements of them and the uncertainty of prolonged and repetitive proceedings."
46. Their Honours expressed the view that further evidence might only be allowed if it would clearly have led to a different conclusion. They said [CLR at 217-218; FLC at 85,457-85,458; Fam LR at 792] :
"[148]…New hearings are not to be ordered merely because there is a real chance that a different order might be made by a different judge or that there is a real chance that the order under appeal does not serve the best interests of the child. It is true that finality of litigation cannot play the part in the exercise of the s.93A (2) discretion that it does in the exercise of the discretion to order a new trial in common law proceedings. Nevertheless, it does have a role to play in the exercise of the s.93A (2) discretion. Whatever the limits of that role, it at least rules out the admission of further evidence where the appellant cannot establish any error in the making of the orders but seeks to have a new trial because on the whole of the evidence now available different orders might be made at that trial.
[149]…in the context of a case such as this one, the relevant purpose of s.93A (2) is to facilitate the correction of an error where that error has probably occurred because the further evidence was not before the primary judge. Because that is so, the proper exercise of the discretion in the circumstances of this case required the Full Court to be affirmatively satisfied of two things. The first was that, given the findings of the trial judge, the further evidence if tendered before him was likely to have produced a different result. It was not enough that the Full Court thought that, upon the whole of the evidence including the further evidence, another judge might make a different order. The second was that the best interests of the children required rehearing of the husband's application, notwithstanding that all members of the family would likely suffer stress, inconvenience and uncertainty as the result of a new hearing. In that context, the financial cost of a further hearing and its impact on the family could not be ignored.
[150]    In some exceptional cases - those concerned with allegations of physical or psychological abuse of a child are an example - it might arguably be a proper exercise of discretion for the Full Court to admit further evidence and order a new hearing even though it is not reasonably satisfied that the evidence would have produced, or at a new hearing would now produce, a different result. In such cases, it may be enough that the court thinks that there is a very real risk, although not a probability, that the current order may actually endanger the child. The consequences for the child may be so grave that arguably the best interests of the child might require the admission of the further evidence and a new hearing to investigate all the available evidence. But if such cases would entitle the Full Court to order a new hearing, they should be regarded as truly exceptional. Ordinarily, even those cases are best left to be dealt with by an application, made pursuant to s.65E, to vary the order the subject of appeal…"
47. Though there may be important distinctions between the considerations bearing upon the receipt of further evidence on appeal and the reopening of a parenting order at first instance, it may be proper that a judge considering an application to relitigate a recently completed parenting case should bear such considerations in mind.

I add my own comments to that of the Full Court referred to above. The rule in Rice & Asplund is not an exception to the principle contained in s.60CA of the Act that in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration. Rather than the rule being an exception to the paramountcy principle, it is, in fact, a manifestation of it. The impact of conflict on children is well documented.
As the Full Court said in Rice & Asplund itself, "change is an ever present factor in human affairs." Having regard to the impact on children of litigation concerning them, the change must be significant indeed. The benefits to them of revisiting the orders have to be substantial in order to justify exposing them to the further litigation between their parents.

The Evidence

The only evidence filed in support of the application was the father's affidavit, and that of his new wife. The respondent mother's solicitor, Mr Longworth, sought to cross-examine the father and I granted leave for that to take place.
It would be fair to say that the evidence contained in the affidavits of the father, and P, was consistent with the submissions made by Ms Messner on behalf of the father about what the changed circumstances were asserted to be.
For all practical purposes, therefore, the mother was able to conduct her case on the basis that some of the circumstances asserted to be changed, were in fact not changed. Moreover, the mother was able to advance her case on the basis that even if the circumstances had changed, it was still not in the best interests of the children to warrant a re-examination of the issue of how much time they should spend with their father.
In Mr Longworth's skilful cross-examination of the father, it became apparent that he is seeking one additional contact night per week during the school term and that one of the key bases for so doing was the father's belief that the mother had promised to deliver this additional time, provided he settled the proceedings when he did. In cross-examination the father agreed that before he settled the case in February 2006 he had sought the extra night that he now seeks. He agreed that at the time of the settlement he had, in a general sense, taken into account the views of the children. He agreed that the children had a close relationship with him at the time the orders were made, and continued to have a close relationship with him. It was put to the husband that his employment status had not, in fact, changed. The evidence in this regard was the financial statement that the father had filed in the previous proceedings and which became exhibit A2.
In cross-examination it was put to the father that one of the real motives for commencing these proceedings was to take advantage of a change of law since 1 July 2006. The father's affidavit filed in these proceedings on 8 February 2007 was not actually read as part of his case. However, it was read as part of the mother's case. Indeed, it was tendered in the father's cross-examination and became exhibit A3. The father agreed that it was his evidence, and that the following paragraphs were contained in that affidavit:-
6. The legal advice given to me at that time, suggested that with the existing legislation it would have been unlikely the Court would grant me any more contact time or give me shared care of the children. The legal cost that I would have incurred in contesting such a case were far more than I was able to afford.
31. Since February 2006 when my final parenting orders were made, there have been amendments to the Family Law Act (2006) (shared parenting responsibility).
The father agreed that he was conscious of this change in the law and confirmed his belief that if the law today had applied to his case as at February 2006, he would have obtained the orders that he sought. He was of the view that he had a better chance of shared care under the new legislation, as compared to the law that applied at the time the consent orders were made.
The cross-examination also went to the father's relationship with his wife, P, and her relationship with the children. The father agreed that W was already in Air League before 2006.
As indicated above, exhibit A4 consisted of the Family Court file, including the various affidavits that were sworn by the parties. I do not intend to deal with the evidence in great detail, as it does not alter the outcome of this case. However, if one examines some of the assertions about the change of circumstances from the perspective of the evidence filed in the previous matter, compared to the evidence today, a number of things emerge.
In relation to the father's assertion that his change of residence, and the mother and children's change of residence, constitutes a change of circumstances, it is quite apparent from the affidavits filed by both the mother and the father that they had expressly contemplated a change occurring. This is not a change of circumstance - indeed, it is precisely what both the mother and father contemplated at the time the orders were made.
In relation to the father's change of employment, he asserts that he was a casual teacher at BB High School at the time the orders were made, but that he is now permanently employed at the school. Whilst the evidence about his employment status at the time is unclear, the evidence that he gave during re-examination was that at the time the orders were made he was on leave without pay but had been working as a casual teacher four days per week and then five days per week. He agreed he was still permanently employed with the department at the time, though working on a casual basis. By his own admission, therefore, whether he was a casual, or full time employee of the Department of Education, apart from the time when he was on leave without pay, he was working for either four days or five days per week. Presumably, working as a permanent employee, he is working five days per week. That hardly constitutes a change of circumstances.
In relation to the changes asserted in the mother's employment, her documents clearly indicate that she was working part-time as an accountant at the time the orders were made and the father asserts she continues to work part-time but does not necessarily finish at 3.30 pm as she had previously asserted. Particularly having regard to the ages of W and N, that is hardly a change of circumstance of seismic proportions.
There is no doubt that the father's marriage to P is a change of circumstance, but the evidence indicates that the children had spent time with P after their initial introduction to her in late November 2005. Even accepting that the children have developed a close relationship with her, and that the father as he has remarried, the change of circumstance is one of degree only.
In relation to W's greater involvement in Air League, I would not regard this as a change of circumstance, but the natural progression in a developmental sense for a teenage boy. W is 15 now. Even if the Rice & Asplund threshold were crossed, I would need to be firmly satisfied about W's views before proceeding to vary an order that affects him. It is not appropriate for the father to rely on the actions of a 15 year old boy who was clearly involved in Air League at the time the consent orders were made, but who has increased his involvement as a result of promotion within Air League. Again, even if this constitutes a change of circumstances, it is a matter of degree only.
The father's assertion that he has been unable to negotiate with the mother for the children to spend more time with him, despite her promises to him, are simply not established on the evidence. At paragraph 8 of the father's affidavit filed 4 June 2007 his evidence is that the child, W asserted to him that "Mum will allow you to spend more time with us when everything is settled”.
This is clearly not a representation from the mother, even on the father's own evidence. To be fair to the father, however, he goes on in paragraph 8 to state: "and Frances had also suggested to me in conversation that after the orders were made she would consider the boys spending more time with me." Having regard to the importance of this evidence to the father's case, I record it as indeed unusual that he could give evidence about what, precisely, W said to him on the matter, but he could not do so in relation to what, allegedly, the mother said to him. I do not accept the father's evidence in this regard.
Finally, the father asserts that the children have expressed the view that they want to spend more time with him. His evidence in this regard is contained at paragraphs 9-15 of his affidavit filed for June 2007. This is, possibly, the father's strongest argument. If it is the case that both boys have expressed a view about spending more time with him, this is an important consideration in determining what is in their best interests. However, the experience of this Court demonstrates that a parent's assertions about the views expressed by their children is highly unreliable. The phenomenon that is frequently encountered in this Court is that children will say things to their parents that they believe the parents want to hear. That is why this Court relies on the independent expert evidence of family consultants and Court appointed experts to ascertain, understand, and then communicate to the Court the views of children. But this process highlights the fundamental difficulty in this case. To even attempt to objectively ascertain the views of the children means exposing them to a potentially intrusive process, even if professionally done, that risks embroiling them in the conflict between their parents. That is precisely what the rule in Rice & Asplund is designed to prevent, unless the circumstances have changed significantly.

Discussion

I do not consider that the evidence establishes the changes of circumstances asserted by the father in relation to the residence of both parents, his employment and the mother's employment, his relationship with P, and W's involvement with the Air League. I do not accept the father's evidence that the mother had represented to him in any way that she would allow the children to spend more time with him. I cannot make a finding about whether the children have expressed views to their father about spending more time with him. Even if the children are saying this, I would not make a finding about the veracity of these statements without obtaining an independent assessment of these views. In any event, even if a change of circumstances were demonstrated as a result of this, it would not be sufficient to make it in the best interests of the children for the matter to be re-litigated. I do find, however, that at least in part the father's current application was motivated by what he considered to be a favourable change to the law as a result of the passing of the Family Law Amendment (Shared Parental Responsibility) Act (2006). I note the clear terms of s.44, Schedule1, Part II of that Act that provides:-
The amendments made by this schedule are taken not to constitute changed circumstances that will justify making an order to discharge or vary, or to suspend or revive the operation of, some or all of the parenting order that was made before commencement.
I regard this case as precisely the sort of case contemplated in the decision in Rice & Asplund itself. Change is an ever present factor in human affairs. Most of the changed circumstances asserted on behalf of the father amounted, at most, to change that occurs as a result of life itself. To allow the present case to proceed would be to invite potentially endless litigation.
Reading the affidavits of the father and the mother filed in the Family Court proceedings gives me a disturbing insight into the very high level of conflict that they obviously experienced during the course of those proceedings. I urge the father, in particular, to read his affidavits again, focussing on the very many examples he gives in his affidavits of what, he asserts, W and N said to him. I ask the father to not consider these statements from his personal perspective as the one who heard the statement and dutifully recorded them in his affidavit. I ask him to consider the perspective of both W and N at the time these comments were allegedly made. I suggest to the father that the more independent and objective observer reading these affidavits cannot fail to be deeply disturbed by the picture of two boys very much caught up in the conflict between their parents. How could it possibly be in the best interests of W and N to re-litigate the issue that caused such animosity between their parents?
For the reasons set out above, I dismiss the father's application filed 6 February 2007.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Altobelli FM

Associate: Lisa Molloy

Date: 6 September