Barrine and Vance (No.2) - [2018] FCCA 493

FEDERAL CIRCUIT COURT OF AUSTRALIA

BARRINE & VANCE (No.2)

[2018] FCCA 493

Catchwords:
FAMILY LAW – Parenting – final parenting orders in March 2017 – where applicant files new application for parenting orders in June 2017 – where respondent mother seeks dismissal of new application on basis of rule in Rice & Asplund – application dismissed.

Legislation:

Family Law Act 1975

Federal Circuit Court Rules 2001

Cases cited:

Barrine & Vance [2017] FCCA 581

Carriel & Lendrum [2015] FamCAFC 43
CDW v LVE (2015) WASCA 247
Marsden & Winch [2009] FamCAFC 152
Searson & Searson [2017] FamCAFC 119
Rice & Asplund (1979) FLC 90
SPS & PLS [2008] FamCAFC 16
Walter & Walter (2016) FamCAFC 56

Applicant:

MR BARRINE

Respondent:

MS VANCE

File Number:

MLC 3096 of 2015

Judgment of:

Judge O'Sullivan

Hearing date:

31 January 2018

Date of Last Submission:

31 January 2018

Delivered at:

Dandenong

Delivered on:

2 March 2018

REPRESENTATION

Applicant:

In Person

Counsel for the Respondent:

Mr Hoare

Solicitors for the Respondent:

Warren Graham & Murphy

ORDERS

The application filed 19 June 2017 be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Barrine & Vance (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

MLC 3096 of 2015

MR BARRINE

Applicant

And

MS VANCE

Respondent

REASONS FOR JUDGMENT

Before the Court are proceedings between Mr Barrine (the applicant) and Ms Vance (the respondent).
The applicant is 32 years of age, initially gave his address for service as Suburb A, Victoria (but at the hearing changed this to [Country B]) and his occupation as “[tradesperson]”. The respondent is 36 years of age, gives her residential address as Town 1, in regional Victoria, and is a public servant by occupation.
The parties were in a relationship that began in 2012 and ended in 2014. There is one child of that relationship: [X], born … 2013 (the child).
On 31 March 2017, and following a two day trial beginning 8 February 2017 where the applicant appeared in person, the respondent was represented and there was an Independent Children’s Lawyer, final parenting orders (as that term is defined in the Family Law Act 1975 (the Act)) were made for the child for the reasons in Barrine & Vance [2017] FCCA 581.

Current Proceedings

Shortly thereafter, the applicant commenced the current proceedings by application filed 19 June 2017, supported by an affidavit filed the same day. This application was given a first return date of 18 September 2017.
The orders sought by the applicant in this latest application filed 19 June 2017 were:
“1 That Ms Vance and Mr Barrine have equal shared parenting responsibility for our son, [X].
2. That visitation in unsupervised and living arrangements be a dynamic process of reflection and revision considering [X]’s age and developmental needs, [X]’s own wishes, maintaining regular contact with both parents and their families, developing practical arrangements based around work schedules, school changeovers etc.,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Barrine and Vance (No.2)

Details

AGLC: Barrine and Vance (No.2) [2018] FCCA 493
Case: [2018] FCCA 493
Decision Date: 2 March 2018

CaseChat Overview and Summary

This matter concerned a parenting dispute between the applicant father and the respondent mother regarding their young child, [X]. The father sought orders for joint parental responsibility and a gradual increase in his time with [X], ultimately aiming for an equal time regime. The mother sought sole parental responsibility, with [X] living with her and spending supervised time with the father. The Independent Children’s Lawyer recommended joint parental responsibility but with limited, supervised and unsupervised time with the father. The court was presided over by Judge O'Sullivan.

The primary legal issue before the court was whether there had been a sufficient change in circumstances since the previous orders were made to justify altering those orders, in accordance with the principles established in cases such as *Rice v Asplund* and *SPS & PLS*. This involved determining whether the father's application should be dismissed at a preliminary stage, without a full hearing, due to a lack of demonstrated change in circumstances sufficient to warrant further litigation. The court also considered the overarching principle of acting in the best interests of the child, and the need to avoid "endless litigation" and the psychological harm it can inflict on children.

Judge O'Sullivan applied the "rule in Rice & Asplund", as explained in *Searson & Searson*, to determine the application as a preliminary matter. The court noted that this rule is a practical application of the best interests principle, designed to prevent repetitive litigation where there has not been a material change in circumstances. The judge found that the previous orders, which granted the mother sole parental responsibility and stipulated a specific time regime with the father, were to be maintained unless a significant change in circumstances was demonstrated. The court's reasoning indicated that the father had not presented sufficient evidence of a change in circumstances to justify disturbing the existing orders, and that continuing the litigation would be detrimental to the child's welfare.

The application filed on 19 June 2017 was dismissed.

Orders

Orders of the court

The application filed 19 June 2017 be dismissed.

Background

Background to the litigation

As indicated earlier, the Orders were made for the reasons set out in Barrine & Vance (supra) which provided, inter alia:“1. This is a parenting dispute about the best interests of a young child [X] born on … 2013. The applicant father’s position has at times been difficult to pin down but in essence he seeks an order for joint parental responsibility and a slowly expanding process whereby his time with [X] becomes unsupervised and ultimately achieves an equal time regime. The mother’s countervailing position is that she should have sole parental responsibility, that [X] should live with her and spend supervised time with the father until at least 2019. The Independent Children’s Lawyer’s position is that there should be an order for joint parental responsibility but that [X] spend time with his father each alternate weekend for two hours on days and times as nominated by the Anglicare contact centre at Town 1 with the first hour to be supervised and the second hour unsupervised. The Independent Children’s Lawyer posits a further and more significant regime of time in the event that the father were to relocate from Melbourne where he now lives to the area where the child lives, but that proposition does not immediately appear to be likely to occur in the presently foreseeable future.2. Each parent has expressed concern that the child may be extracted from Australia, and I would indicate that it is appropriate that there be a Watch List order. Both sides seem to want one and the father in particular struck me as being capable of impulsively taking [X] overseas.3. For the reasons that follow I propose to make an order that the mother have sole parental responsibility, and that the spend time regime be as recommended by the Independent Children’s Lawyer.Agreed or Uncontested Relevant Facts4. It should be noted that the affidavit material of the parties is by no means entirely satisfactory. This is more the case with the material filed by the father much of which is irrelevant or objectionable for a variety of reasons, unsurprisingly perhaps given his self-representation. His affidavits contain little by way of detailed factual background to himself and to an extent in relation to the matters before the Court. The mother’s material while more structured, as one would expect given her legal representation, likewise is by no means completely informative. Some of what is taken in this passage of the judgment comes from what the parties told either the expert psychiatrist Dr E or the report writer Ms G.5. The mother was born on … 1981 in Australia. She has trained and in the past worked as a public servant, although she is now employed as a medical professional. She lives in Town 1, which from looking at a map appears to be southeast of Town 3 and approximately 100 or more kilometres east of Town 2. [X] lives with her and has done so since his birth. According to what the mother told the report writer Ms G, [X] sleeps in her bed on a routine basis.6. The father was born on … 1985 in the [Country B] of which of course he remains as citizen. His current visa status in Australia has never been made entirely clear. His family, unsurprisingly, is in the [Country B].7. The parties met in … 2012 and commenced cohabitation, it would appear, towards the … 2012. Their relationship was characterised perhaps as on/off and the father returned on at least one occasion to the [Country B] in 2013. [X] was not a planned child but following his birth on … 2013, the parties separated on a final basis in January 2014. The father went to the [Country B] between … 2014.8. On 1 October 2014 the father pleaded guilty to assault of the mother in (“the assault”). He may not have been the subject of formal conviction but he undoubtedly pleaded guilty to an assault. He has also been the subject of an Intervention Order made on 20 November 2014 with a final expiry date of 22 July 2016. There have been other Intervention Order proceedings between the parties. The mother suggests that the Intervention Order may be extended but this is not entirely clear.9. On any view of the matter the father has spent little time with [X]. Initially he spent some time with [X] in the company of the maternal grandparents, with whom it is clear his relationship is strained. Between May 2016 and December 2016 the father has spent supervised time with [X] at Anglicare Victoria in Town 2, which time is the subject of an affidavit from Ms F affirmed 3 February 2017.

Evidence

Evidence Before The Court

Of great assistance to trial Judges was the recent summary of the principles in these cases, articulated recently by Justice Murphy in Searson & Searson [2017] FamCAFC 119, which I respectfully set out now:“8. It is well settled that the “rule in Rice & Asplund” can be applied at the outset of a hearing or proceedings or at the end of a hearing.9. In the important decision of SPS & PLS (“SPS”) Warnick J held that the discussion of the rule in the various authorities had “not always used consistent terminology”. His Honour noted, in particular, that the term “threshold” has had different connotations. His Honour went on to say that he would in that judgment “refer to the situation arising when the question is posed and answered at the outset of a hearing as treatment of the question as a ‘preliminary matter’”. It is in that sense that the expression is used in these reasons of mine. As it seems abundantly clear to me, the treatment of the rule in that manner is what was contemplated and undertaken by the parties and by her Honour in the proceedings below. 10. In SPS, Warnick J went on to hold that: “... At whatever stage of a hearing the rule is applied, its application should remain merely a manifestation of the “best interests principle”.…The application of the rule is closely connected with the nature of, and degree of, change sought to the earlier order. 11. His Honour went on to say this: ... [I]n my view when the threshold question described in Rice and Asplund is determined as a preliminary matter, it remains a determination “on the merits”. Where an application is dismissed at a preliminary stage, it is not dismissed for some technical reason, such as the failure of a party to appear or some lack of compliance with form and procedure but rather because, assuming the evidence of the applicant is accepted, there is an insufficient change of circumstance shown to justify embarking on a hearing. Though sometimes unstated, the underlying conclusion will or ought be that the interests of the child in not being the subject of further litigation is more powerfully in the child’s welfare than to allow the application to continue.(Emphasis added)12. Yet, as his Honour was at pains to point out, the rule is not the application of some esoteric principle but rather, the practical application of a principle designed to avoid “endless litigation” to the detriment of the relevant children in circumstances where otherwise the principles of res judicata do not apply.13. Thus, for example, Nygh J said in McEnearney & McEnearney: “... the principle that there be an end to litigation has equal force in custodial disputes and in some respects may have even greater force in custodial disputes. The last thing, of course, that this court would wish to see would be a perennial football match between parents who because the strict principles of res judicata are not applicable might seek to canvass again and again the question of custody of a child with the enormous psychological harm which they would be inflicting not only upon each other but especially upon the child.”14. To similar effect, Warnick J said in SPS: Another end served by the rule is that it avoids one judge substituting his or her opinion of what is in the best interests of a child for that of another judge, though both opinions are based on the same or similar facts. This “evil” is avoided by a requirement that the previous order should not be altered unless there has been a change of circumstances sufficient to justify that result. (Emphasis added)15. The “evil” referred to is the undoubted harm to children of “a perennial football match between parents” and the canvassing “again and again” of issues relating to their best interests…” (Citations omitted)

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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