Barrine and Vance (No.2)
[2018] FCCA 493
•2 March 2018
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 |
| 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., and opportunity for fortnightly contact.
3. That there is fair distribution of birthdays, holidays and other days of religious/spiritual/national significance. By shared time of the day trading off every other year, or otherwise agreed between the parties from time to time.
(i) Two school holidays per year
(ii) Alternating birthdays and holidays:
a. [X]’s birthday
b. Father’s birthday
c. Father’s birthday
d. [holiday]
e. [holiday]
f. Christmas
g. New Years Eve and day
h. [holiday]
i. Easter
4. That transportation responsibility for our son ia shared between Ms Vance and Mr Barrine.
5. That each party let the other party know if our child needs medical attentions while in their care. Parties will advise each other within 24 hours of [X] receiving medical attention.
6. That each party keep each other information of any change in address, or telephone number within (7) days of such an event.
7. That [X] is permitted to travel outside the Commonwealth of Australia ONLY if consent by Ms Vance and Mr Barrine is obtained in conjunction with adequate contact information and itinerary details.”
Later the same month the applicant filed an application in a case on 26 June 2017 which sought that the Judge who made the Orders for the reasons in Barrine v Vance (supra) recuse himself which was also made returnable on 18 September 2017. Prior to this, and on 1 September 2017, the respondent filed a response which sought the application be dismissed and affidavit all on 11 September 2017.
When the current proceedings first came before the Court on 18 September 2017, there was no appearance on behalf of the applicant, and the respondent was represented. The following orders were made:
“1. The matter be adjourned to this Court in the duty list before Judge O’Sullivan on 11 December 2017 at 10.00 am in Dandenong.
2. The Applicant pay the Respondent’s costs fixed in the sum of $1,000.”
When the current proceedings came back before the Court on 11 December 2017, pursuant to the above mentioned orders, the applicant appeared in person and the respondent was represented. The Court made the following orders:
“1. The matter be adjourned for a Rice & Asplund hearing on 31 January 2018 commencing at 10:00 am at the Federal Circuit Court of Australia at Dandenong.
2. The applicant file and serve any further material to be relied on and an outline of submissions addressing the relevant considerations in Rice & Asplund (1979) FLC 90-725; SPS & PLS [2008] FamCAFC 16; Marsden & Winch [2009] FamCAFC 152; Searson & Searson [2017] FamCAFC 119; within 14 days.
3. The respondent file and serve any further material to be relied on and an outline of submissions addressing the relevant considerations in Rice & Asplund (1979) FLC 90-725; SPS & PLS [2008] FamCAFC 16; Marsden & Winch [2009] FamCAFC 152; Searson & Searson [2017] FamCAFC 119; 14 days thereafter.
4. That no further documents shall be filed in these proceedings, save for as set out above, without leave of the Court.
…
A. In the event of non-compliance by any party with the orders, directions, Rules or Regulations of this Court relating to:
(i) the filing of documents;
(ii) the payment of any applicable filing, setting down, mediation or enforcement fee or fees; and/or
(iii) any other procedural issues,
the application may be struck out, the proceedings may be directed to proceed undefended or the trial date may be vacated and the Court may direct that a further date not be fixed until all parties have complied with the said orders, directions, Rules and Regulations.
…”
Notwithstanding those orders, when the proceedings returned to Court on 31 January 2018, the applicant, who again appeared unrepresented, had not filed any further material, whilst the respondent, who appeared represented by Counsel, had filed written submissions and a further affidavit.
The applicant opposed the orders sought by the respondent that the application filed 19 June 2017 be dismissed, relying on the principles in Rice & Asplund (1979) FLC 90-725.
At the hearing, and after those principles were explained to the applicant, the parties identified the material they relied on and made submissions in support of their respective positions.
Material relied on
On 31 January 2018, the applicant told the Court he relied on
a)the application filed 19 June 2017;
b)his affidavit filed 19 June 2017; and
c)his affidavit filed 26 June 2017.
At the hearing on 31 January 2018, the respondent told the Court through her counsel she relied on;
a)the response filed 11 September 2017;
b)the affidavit filed 11 September 2017; and
c)the affidavit of her solicitor filed 5 January 2018; and
d)her submissions filed 5 January 2018.
The orders that were sought by the applicant have been set out earlier. Also, as noted earlier, the applicant had filed an affidavit on 19 June 2017 and an affidavit on 26 June 2017.
Despite being given the opportunity to do so by orders made 11 December 2017, the applicant filed no further evidence with the Court. Whilst at the hearing on 31 January 2018, the applicant alluded to other material which he had elsewhere none had been filed pursuant to those orders or otherwise, when it was pointed out to him that his evidence was, so far as it was properly before the Court, as referred to earlier, the applicant who had had the opportunity to see the duty lawyer and get advice before the matter returned to Court in January 2018 did not seek an adjournment.
Applicant’s material
In his affidavit filed 19 June 2017, the applicant deposed (omitting formalities and his background to the parties’ relationship) as follows:
“…
6. That I have serious concerns regarding the Respondent’s conduct towards me and the child. Those concerns include, but are not limited to: -
a. Physical violence towards me and around our son on 4/3/2013 where I called Police in fear for my safety, 10/1/2014 at my new residence in Suburb B she became agitated, abusive and assaulted me when asked to leave my home, on 22/2/2014 she assaulted me trying to pick our son from the pram.
b. Verbal abuse in conversation including email and text to myself and my family historically and on 19/06/2014 where she sent an email to my mother abusing me and her, 19/06/2014 send abusive texts to my mobile. 15/10/2014 she was removed from mediation when she began uncontrollably calling me names.
c. Property violence and moved without consent on 19/6/2014 clothes and sentimental items left on my drive in the rain, 25/7/2014 Tax papers, painting, and work clothes put in my lodges front porch without my permission, 12/8/2014 left my snowboard, dress shoes and bicycle at a residence in Suburb C I didn’t live at. Nor has she returned my tools, fishing gear and surf board.
d. False allegations made for tactical purpose – to police, courts, child services and others on 22/2/2014 feigned emotion and made false allegations to police, 19/6/2014 falsified safety concerns to police and feigned emotion for an intervention order. Please notice this date as a punctuation in our relationship. The day before on the 18th we had gone on a date where she took pictures of me holding our son and safety concerns were non-existent, later on I revealed I had been with another woman and she acted out the next day on the 19th, 22/7/2014 a final intervention order and my work was contacted. After a brief of evidence was compiled and it was dismissed with no further police action. On 01/10/2014 I was wrongly found guilty in a contested hearing for the assault charges remaining on 22/2/2014. An interesting fact is Ms Vance went back to the police and claimed no contact then came to Court that day and testified against me. What changed? On the 3/11/2014 she went back to police with false allegations, 20/11/2014 Order varied and extended against my will as I was unable to attend due to financial hardship. On 22/4/2015 a final IVO was placed on the respondent after a 2 day contest hearing. …2015 I wished he a Happy Birthday that she claimed as a breach and had me criminally charged. On 1/2/2016 I appealed the order and was refused because I didn’t file 28 days after the final order was made. On 3/3/2016 I was found guilty for breach of intervention order for a birthday wish via text message, 23/5/2016 I applied for leave of Court to apply for appeal out of time and was denied, on 9/6/2016 the Respondent made more false allegations to extend order indefinitely, on 27/6/2016 I reapplied for leave of court to apply for appeal out of time and was denied, on ground that I was likely to contact the Respondent because of a letter that I wrote. I immediately appealed because it infringed on my fatherly rights under the Family Law Act to write letters in regard to child care arrangements. This also sabotaged and left the issue ambiguous in my Family court Case on February 8th and 9th 2017 and made the inference there was an ongoing behavioural issue of which there was none, on 5/18/2017 I finally contested the Order, won my appeal and all orders were dismissed on their meritless and frivolous ground although not in time to undo the damage it did on my Family court case.
e. Parental Alienation, the mother and her family have purposefully tried to undermine our son’s perception about his Father and remove him from his Father. At Present our son is confused about his identity and doesn’t recognize me as his Father. From August 26, 2015 to May 7th 2016 Ms Vance refused to let me see our son. In Late March 2015 My Parents visited Australia for 3 weeks in hopes to visit their Grandson, but were denied access the entire visit. The courts have forced me to visit our son in a miserable supervised sitting that distresses me and for no direct safety concerns for the Childs safety but rather to appease the mother’s anxieties. Over the past year I have been visiting [X] in this setting and Ms Vance has cancelled 5+ visits with no attempt to reschedule. Time has been robbed from me and continues without consequence for the Respondent. My Parenting returned to Australia in February 2017 and wanted to see their Grandchild and again were denied any contact. My mother has requested to visit with [X] over Skype and face time and [X]’s lawyers wrote back that Internet access wasn’t available and it was the Fathers responsibility to facilitate contact. Well its funny how the Internet worked when I lived there and being removed from your son in this capacity makes it very difficult. I accuse the respondent of keeping and withholding our son from his cultural and national heritage.
f. Financial and Coercive control, the later including controlling access to children. During the snow season 2014 [X] tried to have me arrested at work and told all my work colleagues that we both had worked with that I beat her. This circulated around my workplace and subjected me to hatred, creating a hospital work environment and resulted in not being awarded my job back the next season. I also have reason to believe that [X] wrote a complaint about me to resort management to have me removed. In winter of 2015 U worked for [employer] and had multiple breakdowns at work where I found the stress and changes from my personal life too much and hindered me performing my job. During this time I was also going to school full time earning an [qualifications] and found the same difficultly focusing on school due to stress. While working with [employer], taking days off of work to go to court dates and visitation also put strain on my work relationships as well as my finances. Court appearances and defending off her continual allegations distresses me physically, mentally, emotionally and financially. Ms Vance has imposed upon me how, when where and who with I can visit with our son, often putting me in hostile situations with her parents and miserable supervised setting that distresses me.
g. Deliberate delays to court proceedings including failure to supply documents, failure to respond or attend mediation promptly [X] has refused to talk to me since the 18th if June 2014 resulting in delays and misunderstandings. In June 2014 [X] refused me access to our son’s birth certificate requested by immigration to continue forward with my visa. My tax papers mailed to her hour were held then dumped at my door without consent. I organised Family mediation and it look [X] months to set down a date when she lived minutes away from the FMC centre. The respondent has failed to respond countless times during this conflict unable, or unwilling to communicate.
7. I allege the Family courts and Judge Burchardt of Gross negligence
a. Judge Burchardt implemented a family plan that could never have worked and I believe he knew it would fail, was likely to fail or never looked into the viability of the plan, which is his job.
b. Anglicare never had capability to facilitate the ruling judge Burchardt made. Therefore the plan was set up to fail.
c. I felt his ruling was bias, condoned violence for women, impractical, inconsiderate and fundamentally flawed. I have been punished for domestic violence that the respondent instigated in many cases and participated in, I’m at a loss because of my, discriminated for it and the current culture fuels it. I have watched in the past 5 years since my arrival in Australia, government campaigns victimising women and depicting men as perpetrators. I have issues with the victimisation culture because I believe it fragments the issues. Relationship/Partners by definition include two people, and these are toxic relationships with accountability on both sides, sex aside violence is altogether unacceptable, Man or woman. The reason given to me for condoning the respondent’s violent behaviour was that a man is more able to defend himself where as a woman is at a disadvantage. I asked the question is violence condoned or NOT? When is it ok to defend myself? When she is bigger than you, when she has a weapon, I would like to know? I’ve defended myself from physical harm by the respondent and been discriminated for it by the courts, and police because of my gender. The ruling showed no regard for my interests or my family’s interest, nor has it worked any practical sense; this plans has failed miserably in every possible wat and seems a thoughtless inconsiderate ruling to me.
d. I’m left with a fundamentally flawed family plan I work so hard to achieve, a fleeting hope to have a meaningful relationship with our and have a present role in his life and upbringing. The mother and respondent continues to be malicious, scorned and impossible cancelling every other visit and subjected me and our son to the miserable environment of supervised contact with no direct safety reasons to the child, robbing us of free will and choice for our quality time.
e. There is no measure of health to be well adjusted to a profoundly sick society.
g. The Respondents abusive behaviour was ongoing throughout the relationship and increased in severity since the 18th of June including but not limited to:-
* Physical abuse on (4/3/2013), (10/1/2014), (22/2/2014)
* Emotional abuse through verbal name-calling, abusive tests and email to my family and I (19/6/2014)
* Threats that I would never see our son again 22/2/2014, the respondents ex Mr D would beat me up and threatening and coercing my family on multiple occasions via email to sabotage my visa if I didn’t do what the respondent wanted.
* Economic abuse, by trying to have me arrested at work (23/8/2014) and creating a hostile environment, telling me work colleague that I beat her, resulting in not being awarded my job back from false allegations including (22/2/2014)m (19/6/2014), (3/11/2014), (9/6/2016) and financial burden to properly defend myself.
The respondent used intimidation by creating a hostile environment for the father to visit with the child. From 19/6/14 to 26/8/2015 the Maternal grandparents attended every visit I had with [X] against my wishes and would belittle, curse, use loud voices and continually argue with me in front of our son. The Respondent refused to have a friend, her brother, or other neutral agent come to visits with our when I asked in October of 2014 among other occasions.
Property violence, on (19/6/2014), (25/7/2014) , (12/8/2014)
Silent treatment, the Respondent hasn’t spoken to me since (19/6/2014)
Using children and visitation to inflict pain on me for a sense of wrong she feels. Denied Paternal Grandparents contact on 3 separate occasions when they have flown in from over seas. From (26/8/2015) to (7/5/16) the respondent refused to let me visit with our Boy, Since the 7th of may 2016 the respondent has cancelled 5+ visits with our son.”
In his affidavit filed 26 June 2017, the applicant deposed:
1. I allege the Family Courts and Judge Burchartd of Negligence and ask that he excuse himself from any further proceedings with my family.
“a. Judge Burchardt implemented a family plan that could never have worked and I believe he knew it would fail, was likely to fail or never looked into the viability of the plan, which is his job.
b. Anglicare never had capability to facilitate the ruling judge Burchardt made. Therefore the plan was set up to fail.
c. The Judgment was bias, condoned violence for women, impractical, inconsiderate and fundamentally flawed. I have been punished for domestic violence that the respondent instigated in many cases and participated in, I’m at a loss because of my, discriminated for it and the current culture fuels it. I have watched in the past 5 years since my arrival in Australia, government campaigns victimising women and depicting men as perpetrators. I have issues with the victimisation culture because I believe it fragments the issues. Relationship/Partners by definition include two people, and these are toxic relationships with accountability on both sides, sex aside violence is altogether unacceptable, Man or woman. The reason given to me for condoning the respondent’s violent behaviour was that a man is more able to defend himself where as a woman is at a disadvantage. I ask the question is violence condoned or NOT? When is it ok to defend myself? When she is bigger than you, when she has a weapon, I would like to know? I’ve defended myself from physical harm by the respondent and been discriminated for it by the courts, and police because of my gender. The ruling showed no regard for my interests or my family’s interest, nor has it worked any practical sense; this plans has failed miserably in every possible wat and seems a thoughtless inconsiderate ruling to me.
d. A thoughtful plan in my eyes would have included equal shared parental responsibility with our child continuing to live with the Mother, unsupervised contact with the child increasing time, equal and fair distribution of birthdays and holidays, and opportunity for meaningful regular contact.
e. This is taken directly from an Australian Citizenship application and seems pyocritical from my experience. Ideals need to be actively practied to take on any real meaning and substance:
“I understand that Australian citizenship is a shared identity, a common bond that unites all Australians while respecting their diversity.
I understand Australian society values respect for the freedom and dignity of the individual, freedom of religion, commitment to the rule of law, parliamentary democracy, equality of men and women and a spirit of egalitarianism that embraces mutual respect, tolerance, fair play and compassion for those in need, and the pursuit of the public good. Australian society values equality of opportunity for individuals, regardless of their race, religion or ethnic background.”
f. I am left with a fundamentally flawed family plan I work so hard to achieve, a fleeting hope to have meaningful relationship with our sson and have a present role in his life and upbringing.
g. My liberty (the state of being free within society from oppressive restrictions imposed by authority on one’s behaviour or political views) has been raped and this ruling has hindered my pursuit of happiness.
h. The Mother/Respondent continues to be malicious, scorned and impossible. Cancelling an unacceptable amount of visits, for frivolous reasons, and subjecting our son and I to the miserable environment of supervised contact because the Respondents anxious.
i. There is absolutely no direct safety reason to the child that justifies continuing supervised contact. Supervised contact has been continued on grounds that otherwise the Respondent would be anxious about contact. Supervised contact is distressing to me and robs [X] and I of free will and choice
j. My personal experience with the Respondent paired with diagnostic criteria over a period of 4.5 years would suggest to me Antisocial/Narcissistic personal disorder. My concerns have been largely ignored in the court and judge Burchardt was content to disregard my concerns and rest his ruling upon a superficial hour and a half session with a psychiatrist that didn’t specifically assess for this condition nor rule it out.
k. The Police and courts have been used dishonestly and tactfully as a weapon to alienate me from our son. I have warned the courts multiple times of its use as a weapoin but my concerns have been largely ignored having negative impact on our son [X], my mental and physical health and my ability to parent.
l. Magistrates … of the Town 2 County Court unjustly extended and IVO request by the Respondent that sabotaged my family court hearing and infringed on my fatherly rights. I have since won my appeal of the IO where all existing orders were struck down for their meritless nature, but not before it did its damage. The Respondent did this tactfully where she falsified safety concerns. Also making the issue ambiguous and making the inference that there was an ongoing behavioural issue, and safety concern, where in fact there was absolutely none. This was explained clearly and specific to Judge Burchardt as a tactical use of Courts and Police with maliciour intent to remove me from our son. My concerns were ignored; Judge Burchardt puished me in his ruling for it and against condones
m. Judge Burchardts ruling has been negative and damaging to all Family involved. I’m forced to return to the courts after years of anguish and heartache because I DO NOR consent to the final orders made. Costing both sides time energy and resources.
n. Judge Burcahrdt badmouthes me for pages in his Judgment. Shaming me for the same behavior he pardoned for the Respondent. Calling me “strange” and my positions “completely utterly unfeasible”. I find little truth and merit to his reasoning because of his bias assumptions on issues that conflict with my personal experience and the utter failure of his final orders in real life practicality.
o. I have crossed oceans and moved mountains pursuing a meaningful relationship with our son and his questioning, or me having to prove my love for our son is insulting. I loved our son from the news of his conceptions, when I delivered him into the world and grows everyday. The idea that I need to continually prove my love for our son by running the gauntlet he’s devised is absurd.
p. Truth is a pathless land and my actions have taken me where my heart wants to go. I seek for better and stray from Judge Burcahrdt’s ruling.
q. The Respondent chose to be in a relationship with me, the Respondent chose to say yes and to my marriage proposal, The Respondent chose to lay with me and bare my son. Although she chooses different now she made the choice long ago, for me as this boy’s father, and not something she can go back on. It is also my view that my relationship with our son should not be harmed, burdened or diminished by the Respondents inability to accept those facts, or by Judge Burcahrdt’s ruling that does the same.”[emphasis and errors in original]
Respondent’s material
In her affidavit filed 11 September 2017, the respondent deposed:
“1. That I am the Respondent Mother.
2. That I refer to the Final Orders made in this matter by His Honour Judge Burchardt on 31st March 2017. A true copy of those Orders is annexed hereto and marked “V 1” (“the Orders”). The Orders were made after a two day contested hearing in relation to the matter before His Honour Judge Burchardt on the 8th and 9th of February 2017. The Applicant Father appeared at that final hearing in person. I was represented by Counsel. The Independent Children’s Lawyer was also represented by Counsel.
3. That I say and having regard the material set out in the Applicant’s Affidavit sworn 19th June 2017 that the Father’s Application filed 19th June 2017 (“the Application”) effectively seeks to Appeal the decision of His Honour Judge Burchardt made 31st March 2017. I say that the time for lodgement of an Appeal has expired and as such I seek that the Application be dismissed.
4. Alternatively, the Application might be categorised as an Application to vary or discharge the Orders made by His Honour. If that is so, I say that there has been no change in circumstances arising since the making of the Orders sufficient to justify the filing of the Application. As such, I seek that the Application be dismissed.
5. The Orders and in particular Orders 3 and 4 provide in essence that the Father spend time with the child [X] at the Anglicare Contact Centre at Town 2 for two hours, such time to increase by one hour every four months, up to four hours. The first hour of such time to be supervised and the balance to be unsupervised.
6. I deny the assertion made in paragraph 5(b) of the Father’s Affidavit to the effect that “Anglicare never had the capability to facilitate the ruling Judge Burchardt made”. The Father does not provide any evidence to support this assertion. To my knowledge Anglicare were at all times able to facilitate the Orders and continue to be able to do so. It is my understanding that the Father has never requested that Anglicare provide facilities on a fortnightly basis as contemplated in the Orders and the Father has only ever requested monthly visits. Further, I was informed by Anglicare on 14th July of this year that the Father had “cancelled” any further visits until November of this year. I believe this is likely due to the Father returning to the [Country B]. I note that the Father has requested that he attend the hearing of this matter by electronic communication.
7. I also deny the assertion made in paragraph 5(d) of the Father’s Affidavit that I have cancelled “every other visit”. Again, the father provides no evidence to support this assertion and it is incorrect. I did request that two proposed visits, one in April and one in June be changed (as opposed to cancelled) due to personal reasons including on one occasion the death of my grandmother. However, I made it clear at all times that I was able to facilitate the visits at any other time upon reasonable notice. In fact the father has only visited the contact centre and spent time with the child on two occasions since the making of the orders. However, I say that any responsibility for non-attendance otherwise is entirely a matter for the father. I have always been willing to facilitate the orders and remain so.
8. Other than the matters referred to in paragraphs 6 and 7 above, I say that the contents of the Father’s Affidavit as filed in this matter are irrelevant and inadmissible. The various matters raised are largely historical in that they refer to events alleged to have occurred prior to the making of the current orders. Many of the matters raised by the Father were raised by him during the hearing, resulting in the making of these orders. I say that the Father is attempting to re-litigate matters that have already been dealt with and decided upon.
9. In summary, I seek that the Application as filed by the Father herein be dismissed. I seek that the Father pay my legal costs incurred and on an indemnity basis. ….”
Respondent’s written submissions
In her written submissions filed 5 January 2018, the respondent’s position was:
“1. According to the rule in Rice and Asplund, the court will entertain fresh proceedings in relation to children who are the subject of existing orders only in certain circumstances, based on the understanding that it will only be in the child's best interests to expose them to further proceedings if there has been a significant change in circumstances since the making of the order.
2. On 31 March 2017 Judge Burchardt of the Federal Court of Australia made Final Orders in the matter of BARRINE & VANCE [2017] FCCA 581, after a two-day hearing.
3. Inter alia, the orders provided that the mother have sole parental responsibility for the child; that the child live with the mother; and that the child spend time with the father each alternate weekend for a period of two hours at the Anglicare Victoria Town 2 Contact Centre with the first hour supervised and the second hour unsupervised, with the unsupervised time to be increased by one hour every four months until the child spends three hours with the father unsupervised.
4. The Court considered evidence from: the mother, the father, expert psychiatrist Dr E, Ms F from the Anglicare Victoria Town 2 Contact Centre, and report writer Ms G.
5. The Court also heard submissions from the Applicant Father, the Respondent Mother and the Independent Children's Lawyer.
6. The Court made the following findings at paragraph 64: there has "undoubtedly been family violence ... [and] an order for equal shared parental responsibility is plainly utterly unworkable and therefore not in the child's best interests."
7. In addition, the court stated at paragraph 89, “it is plainly impractical to contemplate the sort of regime that the father presses for, as set out in his most recent affidavit. To move to the periods of time he has in mind and the regime he has in mind, in circumstances where the child's relationship with him is at such an early and still plastic stage, is just plainly utterly contraindicated. It is not consistent with the independent evidence of Ms G and I am not prepared to order it.”"
8. As to the regime the Applicant Father was pressing for, the father's position was described as, “at times 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.”(Paragraph 1).
9. On 19 June 2017 the father filed an Initiating Application seeking, inter alia, that the mother and father “have shared equal responsibility" and that “visitation is unsupervised and living arrangements be a dynamic process of reflection and revision..."
10. The Initiating Application was listed on 18 September 2017.
11. In the Initiating Application, the Applicant Father stated that there were no existing orders in the matter (part 50a).
12. The Applicant Father filed an Affidavit dated 23 June 2017. It is submitted by the Respondent that the Affidavit of the father dated 23 June 2017 does not disclose any changed circumstances or new factors to warrant the Court entertaining fresh proceedings pursuant to the rule in Rice and Asplund.
13. On 26 June 2017 the Family Law Registry at Dandenong received an Application in a Case signed by the father seeking, “I ask that Judge Burchardt excuse himself from future proceedings with my family. I request that if negligence is found that his slandering judgement (sic) be taken from the record.”
14. On 18 September 2017 the matter was listed before Judge Burchardt. The Respondent Mother travelled from Town 1, Victoria to appear at court and was represented by counsel. There was no appearance by the Applicant Father. There was no answer on the phone number provided by the applicant father pursuant to a request to appear via electronic communications. Judge Burchardt transferred the Application to another judge on a date to be fixed.
15. On 11 December 2017 the matter was listed before his Honour Judge O'Sullivan. Judge O'Sullivan adjourned the matter for a Rice and Asplund hearing on 31 January 2018 and made further orders in relation to the filing of further material and submissions, with the Applicant to file within 14 days and the Respondent to file 14 days thereafter.
16. The Applicant Father has / has not filed further material and submissions.
17. The Respondent submits that the material filed by the Applicant does not satisfy the rule in Rice and Asplund, and that the Applicant has not demonstrated that there has been a significant change in circumstances since the making of the order sufficient to justify exposing the child to further proceedings.
18. The Respondent submits that the Application is utterly without merit.
19. The Respondent seeks an order that the Application be struck out.
20. The Respondent advised the Applicant on 11 September 2017 via email that the Application is without merit and that the Respondent would seek that the Applicant pay the Respondent's costs on an indemnity basis.
21. The Respondent seeks costs on an indemnity basis.”
Respondent’s oral submissions
At the hearing on 31 January 2018, Counsel for the respondent, by reference to the material his client relied on, the reasons for decision in Barrine & Vance (supra) and the Orders carefully traversed the relevant consideration set out in the authorities for the orders sought by his client.
Counsel for the respondent addressed the circumstances leading up to the trial in February 2017, the evidence that was before the Court at that time, and the reasons for decision in Barrine & Vance (supra). Counsel for the respondent also referred to the findings made at paragraphs [62] to [89] in Barrine & Vance (supra) and the Orders made as a result before moving to submissions that the applicant could not on his own case make out a case of changed circumstances.
Counsel for the respondent submitted there was no evidence the applicant had moved closer to the child’s residence, or any change to the other significant matters addressed on Barrine & Vance (supra) (e.g. an updated psychological report on the applicant or a positive report from Anglicare in Town 2 of the time he spent with the child).
Counsel for the respondent noted not only had the applicant not spent time with the child, pursuant to the Orders, since before July 2017 (presumably at his own election) but the evidence he had filed was just a “litany of complaints” about the orders and the reasons in Barrine v Vance (supra) and insufficient to show either significant changed circumstances or that a rehearing was in the child’s best interests. Counsel for the respondent noted this was not an appeal from the Orders, they continued to be in the child’s best interests, and relying on the written submissions filed on behalf of his client and her material submitted the application should be dismissed.
Applicant’s oral submissions
In his submissions before the Court, the applicant made clear he opposed the orders sought by the respondent that the application be dismissed applying the role posed by the decision of Rice & Asplund (supra).
The applicant told the Court he believed there had been significant changes, and that he had “little or nothing to do with” “the child” and this was “something he’d” like to change.
The applicant claimed he had spoken to Anglicare in Town 2 since the Orders were made about concerns he had regarding what the Orders provided. The applicant variously claimed he had only missed visits at Anglicare due to a “misunderstanding” before moving to acknowledge he had not availed himself of time pursuant to the Orders since July 2017 when he returned to the [Country B].
The applicant told the Court upon his return to Australia in November 2017 he also hadn’t done so, as the Orders were “not appropriate” and from his point of view it was better to go back to Court to get unsupervised visits.
Whilst the applicant had abjured the opportunity to file submissions pursuant to the orders made on 11 December 2017 and had not filed any affidavit material since June 2017, he claimed the successful appeal of the intervention order constituted changed circumstances. The applicant claimed the existence of the intervention order had “sabotaged” the trial in February 2017.
The applicant also made claims of alleged breaches of the Orders by the respondent, (e.g. that she had failed to seek help as provided in the Orders and instead of spending money on lawyers, she should be getting counselling.). Finally, the applicant told the Court he believed the Court should “lift the flight ban”.
The Orders
On 31 March 2017 and for the reasons set out in Barrine & Vance (supra.) the following final parenting orders were made for the child (the Orders):
“1. The mother have sole parental responsibility in relation to the child [X] born … 2013 (“[X]”).
2. [X] live with the mother.
3. [X] spend time with the father each alternate weekend for a period of two hours on days and times as nominated by the Anglicare Contact Centre at Town 1 (“the Town 1 Contact Centre”) with the first hour to be supervised and the second unsupervised and the father be permitted to take [X] outside the centre for the second hour.
4. The unsupervised time in order (3) be increased by one hour every four months from the date of these orders until the child spends three hours with the father unsupervised.
5. The father and mother communicate with each other in writing and this is limited to issues in relation to the child.
6. The mother keep the father informed in writing of all issues so far as practicable in relation to the child’s health and schooling.
7. The father be permitted to obtain information directly in relation to the child’s kindergarten or school directly from the kindergarten or school.
8. Both the father and mother keep each other informed of their current residential address in writing and provide the other parent with the details of any change of address within 7 days of that change in writing.
9. Until further order, the mother and her servants and agents be restrained from removing or attempting to remove the child [X] from the Commonwealth of Australia.
10. Until further order, the father and his servants and agents be restrained from removing or attempting to remove the child [X] from the Commonwealth of Australia.
11. Until further order, the child [X] be restrained from leaving the Commonwealth of Australia.
12. That the mother undertake counselling with a counsellor as recommended by the Independent Children’s Lawyer to assist her with her anxiety.
…
A. The Marshal and all officers of the Australian Federal Police and of the police forces of the various states and territories take all necessary steps to give effect to these orders, including all things necessary to include and retain the said child’s name on the airport watch list in force at all points of arrival and departure in the Commonwealth of Australia, and to maintain the said child’s name on the airport watch list until further order of the court.”
The reasons in Barrine & Vance
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 Facts
4. 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.
In Barrine & Vance (supra), His Honour then went on to record his assessment of the affidavit material of the parties (at paras [10] to [14]), the reports and affidavits of the independent witnesses (at paras [15] to [28]), the evidence in and the submissions made by the parties at trial (at paras [29] to [55]) before turning to the statutory pathway for making parenting orders under the Act and the credibility of witnesses (at paras [56] to [61]). His Honour then made the following findings:
“62. As the Full Court made clear in Goode & Goode, the statute operates in such a fashion that the Court must consider an order for equal shared responsibility unless it is the subject of a family violence exemption and/or not in the child’s best interests.
63. This brings us to the competing versions of the relationship propounded by the two parents. Having seen and heard them give their evidence, while I suspect that to an extent the mother may have stood up for herself rather more than she now concedes, there is no doubt whatever in my mind that the father did indeed assault the mother and the child, causing them to fall down an embankment, as the mother asserted. He did not plead guilty but was found guilty, albeit that no formal conviction was recorded. No one has made any submissions as to issue estoppel but, even leaving that matter aside, having seen the parties give their evidence, I have no doubt that the mother’s version is correct. Furthermore, the objective evidence (such as the father’s concession to Dr E that he has a short fuse) only goes to buttress the impression that I formed from the demeanour of the father during his time in the Court. He lost his temper on this occasion because the mother was not doing what he wanted and, in my view, the evidence amply supports the finding I am prepared to make that he was a controlling and domineering and short-tempered partner throughout the relationship. The relationship was characterised by angry and petulant behaviour on the father’s part (including his several brief returns to the [Country B] and his extraordinary decision to send the mother a photograph of himself in a sexual relationship with another woman on one occasion while he was there). He undoubtedly directed foul abuse to her from time to time. Ms G tended to downplay the violence but as earlier indicated I do not agree. In my view, the violence is enough of itself to set aside the presumption of equal shared parental responsibility in this case.
64. Not only has there undoubtedly been family violence, but in any event, an order for equal shared parental responsibility is plainly utterly unworkable and therefore not in the child’s best interests. As I find, the father is a controlling personality who would only use an order for equal shared parental responsibility to endeavour to coerce (or, as he would put it, persuade and/or discuss) the mother to do what he wanted. The fact is that the child presently lives almost all his time with the mother and, given the distance between where the parties live, there are serious practical difficulties with the exercise of joint parental responsibility, in any event. Overarching all these difficulties, however, is the toxic relationship between the parents and their utter failure to communicate in a sensible way. An order for equal shared parental responsibility is utterly unworkable in the circumstances and, furthermore, would give rise to continuing anxiety on the mother’s part which would certainly not be in [X]’s best interests.
Equal Time and/or Substantial and Significant Time
65. The Court is, of course, required to consider equal time and/or substantial and significant time within the meaning of the Act. The father, indeed, seeks equal time and indeed, although scarcely clearly articulated, that the child live primarily in his care over a period of time. This is of course plainly utterly impracticable at the present time. On his own case he does not have suitable accommodation for the child to spend any overnight time with him. He lives hundreds of kilometres from where the mother lives. An equal time regime is further contraindicated by the fact that the parties have communication difficulties and the very poor interpersonal relationship that I have indicated.
66. Much the same can presently be said about any prospect of substantial and significant time within the meaning of the Family Law Act 1975 (Cth) (‘the Act’). The fact is that [X] has never spent more than two hours with his father. Although, as Ms G says, he knows that his father is an important person in his life, he has not yet (and not least because the mother has not encouraged it at all) truly come to appreciate that Mr Barrine is his father. The suggestion that one should be moving to substantial and significant time forthwith as the father seeks is misconceived.
The Orders in [X]’s Best Interests – Section 60CC(2) of the Act
67. The formal position of all of the parties is that it is to [X]’s benefit to have a meaningful relationship with each of his parents. The position of the mother, in truth, is somewhat different, but that is at least the formal position.
68. All of the parties refer to the need to protect [X] from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence. The mother has a vivid fear that the father will, in effect, lose his temper with [X] and injure him. I note that Dr E had no particular fears about either parent. I note further that Ms G is of the view that the father would not deliberately harm the child.
69. Nonetheless it is a fact that the father has assaulted the mother and been found guilty of the assault. He also, I have no doubt (and this is all too obvious from the various messages that he has sent the mother that are before the Court) had a tendency to control and abuse the mother during the relationship. However, the relationship has now ended, and without in any sense diminishing the importance of the father’s past conduct as I have found it, I note that the two independent experts do not share the mother’s vivid fears of the father’s likely conduct if [X] is in his care. It should also be noted that the regime proposed by the Independent Children’s Lawyer and supported by the mother contains careful safeguards, at least in the immediate short term, inasmuch as a substantial amount of the time would be supervised and the amount of time proposed is, in any event, short.
Section 60CC(3)(a)
70. [X] has expressed no views, given his age.
Section 60CC(3)(b)
71. The child has an excellent relationship with his mother who is his primary carer. For my part I would have some reservation about the intensity of the mother’s emotions towards the child, understandable as they are, in part, because of the difficult history of the relationship with the father. [X] is now coming up to three and a half years old and I would expect him to start sleeping in his own bed. If he remains enmeshed with his mother, this is likely to be a difficulty for him. Nonetheless the mother has a very close and loving relationship with [X] for whom she cares devotedly. It would appear that [X] also has a close and well-established relationship with the maternal grandparents, a relationship strongly encouraged, it would appear, by the mother.
72. [X]’s relationship with his father is more complex. I have already recorded the passages in which Ms G records her observation of the father and [X]. I also have regard to the contact centre report. Scarcely surprisingly, given the amount of time [X] has spent with his father, with the implicit disapproval of his mother lurking in the background, the relationship has not developed yet as might ultimately be hoped. Nonetheless there is no reason to doubt that the father does indeed love his child dearly.
Section 60CC(3)(c)
73. No criticism can be advanced of the way in which the mother has made decisions about the child and spent time and communicated with him. She is his primary carer. The father’s behaviour has, however, been erratic. I have not traversed in detail the story of his comings and goings. Nonetheless it has to be said that, whatever his past shortcomings, he now clearly does wish to participate properly in [X]’s life.
Section 60CC(3)(ca)
74. The remarks made immediately above have some applicability to this subsection. Nonetheless, as I understand it, the father has asserted without challenge that he pays child support (presumably as assessed) and also presumably at a low level, given the fact that his business is only in its early stages. The father has not fully discharged his obligations at all times, but this matter has already been commented on above.
Section 60CC(3)(d)
75. Significant additional separation from the mother is likely to be extremely difficult for [X] to cope with. He is really, in truth, only in the process of getting to know his father. Furthermore, whether rightly or wrongly, the mother will feel exceptionally anxious in the event that any significant increase in time were to be ordered. There is of course no question of rewarding unreasonable points of view and making them into a kind of self-serving criterion. Equally, however, it must be accepted that the mother, who is the primary carer, is vital to [X], and anything that is going to cause her difficulty or anxiety is a factor that, as a matter of practical politics needs to be taken into consideration.
Section 60CC(3)(e)
76. This matter is given particular focus by the reality of where the parties live. As best I can see it on the map, the mother’s home is approximately 100 kilometres beyond Town 2. The father lives in Melbourne. It is a long journey just for each of them to get to Town 2. This is a serious and significant practical difficulty. The father has hinted vaguely that he will relocate closer to [X]’s residence but, in truth, there is nothing in the materials or in what he has said to the Court that would indicate that any relocation is likely to occur soon. There is of course expense involved in such travel and neither of these parties is wealthy. All of these matters are clearly relevant.
Section 60CC(3)(f)
77. There is no serious challenge to the mother’s capacity to look after [X] in a day-to-day sense. The father’s capacity to do so remains largely untested but, as Ms G pointed out, this is because the mother has created this chicken and egg problem. It is my view that Ms G’s characterisation is entirely appropriate.
Section 60CC(3)(g)
78. [X]’s personality does not emerge with sufficient clarity, wholly unsurprisingly given his age, for any assessment in any meaningful way to be made. The father struck me as lacking in insight, somewhat self-obsessed and clearly totally unaware of the extent to which his own misconduct (which he continued vividly, in truth, to deny) might operate upon the way the mother responds to him. He struck me as being, and I regret having to make such a finding, frankly somewhat strange. His correspondence style rather speaks for itself and indeed was wholly consistent with the impression that I formed of him in the Court.
79. As I have indicated, the mother struck me, notwithstanding her various concerns, as being also extremely irritated with the father and having a clear dislike of him.
Section 60CC(3)(h)
80. This is not relevant.
Section 60CC(3)(i)
81. The father’s attitude to the responsibilities of parenthood has been, as indicated earlier above, by no means entirely appropriate at all times. He absented himself early on in the piece and has been, to an extent, erratic in his participation. Nonetheless he has pressed his application through to trial, and clearly wants to have a relationship with [X], albeit expressed at times in somewhat highfalutin and verbose terms. The father blames the mother for all his misfortunes, wholly inappropriately in my opinion, and this lack of insight is a difficulty because it impacts upon what his notion of parenting is. His references to the desirability of a united family from time to time, while sound in principle, ignore the practical realities of the position the parties are in.
82. The mother’s attitude towards parenthood is, in one sense, exemplary. She is devoted to her child and is his primary carer. Nonetheless her detestation (not too strong a word as I find) of the father leads her, in truth, to a view that it were better the father have as little as possible time with [X]. Indeed, I have formed the clear view that she would allow the father no time whatsoever if she thought she could. The father would put this as payback for his behaviour during the relationship. He might, in part, even be right. What he would ignore in making such an assertion, however, is that his own behaviour was lamentable during the relationship. He assaulted the mother and the child. It is scarcely surprising that she entertains a very anxious point of view about his behaviour in the future. It is important to remember in all aspects of this case that the Court is not ultimately, or even primarily, concerned with allotting blame between the parties, but trying to assess how [X]’s best interests can be met. The mother’s lack of desire to foment a relationship with the father is a matter that requires to be taken into consideration, even though one might feel it is scarcely surprising in the circumstances.
Section 60CC(3)(j)
83. This section is of course very important but has already, effectively, been dealt with above. There has undoubtedly been family violence, both within the broad definition contained in section 4AB of the Act, but even in simple terms of physical assault.
Section 60CC(3)(k)
84. It appears that there is a still an extant Intervention Order but quite what the status of the various appeals and other proceedings are is far from clear to me. There have certainly been Intervention Orders in the past and this forms part of the family violence background to which I have referred.
Section 60CC(3)(l)
85. These parties are neither of them wealthy. True it is that [X] is young, but, in my view, it is plainly extremely desirable to bring the proceeding to an end and give the parties a clear template with which to move forward. As counsel for the Independent Children’s Lawyer correctly submitted, if the father can show a change of circumstances (the most obvious being that he might move far closer to where [X] lives), then he would plainly be able to press any necessary further application. Nonetheless the circumstances of the parties as they presently stand seem, on the evidence, likely to continue for the foreseeable future, and the Court is therefore going to make orders designed to bring the matter to a conclusion in the light of those circumstances.
Section 60CC(3)(m)
86. There are no other additional relevant circumstances.
Conclusions
87. Bearing all of the above matters in mind, it is clear, in my view, that the recommendations for time set out by Ms G should be adopted. Time for [X] should increase slowly over a protracted period of time to four hours every fortnight. This will impose a burden on the father in terms of travel and expense, but if he loves his son as much as he says he does (and this is one aspect of his evidence I accept) then he will make the necessary arrangements to attend. It is not possible to progress the matter further, as the counsel for the Independent Children’s Lawyer rightly submits, because the future is simply not clear.
88. The mother should be ordered to undertake counselling to assist her with her anxiety. This will obviously help her, but in so doing will also, by diminishing her anxiety, provide [X] with a more settled and secure home environment which will be to his benefit.
89. It is plainly impracticable to contemplate the sort of regime that the father presses for, as set out in his most recent affidavit. To move to the periods of time he has in mind and the regime he has in mind, in circumstances where the child’s relationship with him is at such an early and still plastic stage, is just plainly utterly contraindicated. It is not consistent with the independent evidence of Ms G and I am not prepared to order it. The orders otherwise as proposed by the Independent Children’s Lawyer seem to be eminently sensible and should be made. I will additionally make the watch list order and order the mother to seek counselling to address her anxiety, as recommended by the Independent Children’s Lawyer. The Court will formulate orders consistent with these conclusions and they will of course be published, together with these reasons for judgment.”
Should the rule in Rice & Asplund be applied?
Turning then to consider the question as to whether the rule in Rice & Asplund should be applied in light of the evidence upon which the parties rely and the submissions that they have made.
In Rice & Asplund (1979) FLC 90-725, Her Honour Evatt CJ said that:
“…a Court should not lightly entertain an application to reverse an earlier custody order, as to do so would be to invite endless litigation as change is an ever present factor in human affairs.”
The rule in Rice & Asplund was considered by the Full Court in Carriel & Lendrum [2015] FamCAFC 43 (“Carriel & Lendrum”). In that case, the issue of whether, when applying the rule in Rice & Asplund, it is necessary to address in detail, or even at all, the factors in s.60CC of the Act arose. The Full Court addressed that issue at paragraphs [49] through to [61], the details of which are set out below:
“49. Ground 2 raises an interesting question, and one that we feel has not been directly answered by a court to date. That question is whether when applying the principle in Rice & Asplund, it is necessary to address in any detail, or even at all, the factors for determining what is in a child's best interests contained in s 60CC of the Act?
50. A prime example of what has been said to date in relation to this question is what Warnick J said in SPS & PLS (at [48(iii)]), namely:
“At whatever stage of a hearing the rule is applied, its application should remain merely a manifestation of the ‘best interests principle’.
51. This was echoed by the Full Court in Miller & Harrington where their Honours said this (at [72]):
“It may be, however, that neither the expressions “summary dismissal” or “striking out” is the best term to describe the procedure when, in a parenting case, the rule in Rice and Asplund is considered at a preliminary stage. This is because, as we seek to emphasise, at whatever stage the rule in Rice and Asplund is applied, the court is bound to take into account best interests considerations and also because specific requirements, including legislative requirements, apply.”
52. As can be seen these pronouncements do not provide a direct answer to the question posed above.
53. However, the Full Court in Poisat & Poisat (2014) FLC 93-597 did take the issue one step further in saying at [42], it is readily apparent that…while the nature of the hearing undertaken at either stage will have the best interests of the relevant child/ren as its paramount consideration (s 60CA [of the Act]), the hearing by which those best interests is determined may have characteristics which differ with the circumstances of the case.
54. We consider that that statement fits neatly with what Warnick J also said in SPS & PLS set out above at [30], and with what Nygh J, with whom Barblett and Fogarty JJ agreed, said in the Full Court decision of Newling & Newling; Mole (Applicant) (1987) FLC 91-856 at 76,467:
“Since the principle that the welfare of the child is the paramount consideration applies in all matters affecting children, it is, in my view, not appropriate to speak of cause of action estoppel. What this rule really illustrates is that it is, generally speaking, not in the interests of the child to have repeated applications concerning its custody and access before the Court. …”
55. This approach is also consistent with the recent pronouncement by the Full Court in SCVG & KLD (2014) FLC 93-582 to the effect that the nature and extent of the consideration of the mandatory statutory considerations must, of course, depend upon the circumstances of the case, including the nature and breadth of the issues the subject of the proceedings.
56. This analysis leads us to the view that where the principle in Rice & Asplund is being considered, it will not be appropriate or necessary to discretely address many of the factors in s 60CC of the Act in determining where the best interests of the child might lie.
57. In a case where the principle in Rice & 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 child/ren at the time of its making. Second, the fact that an order has been made reflects that disputation between parties to a parenting dispute, such dispute being inherently contrary to the best interests of the child/ren 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 child/ren to embark upon further litigation enquiring as to the child/ren’s best interests unless it is first demonstrated that a sufficient change in circumstances has occurred since the parenting order was made.
58. Thus, it is entirely understandable, and in our view, not erroneous, for his Honour to address the issue of “best interests” by reference to whether it is in the interests of the child for there to be the further litigation proposed by the mother. Indeed, we note that this was how the issue was framed in the mother’s outline of argument presented to his Honour at the commencement of the hearing. She said this (at paragraph 3):
The central question for consideration by the Court was encapsulated by Warnick J in the following terms (para 81, at page 310):
“… Though sometimes unstated, the underlying conclusion will or ought to 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.”
59. This approach, when the principle in Rice & Asplund is in play, can also perhaps be seen as a product of the related question of whether an order dismissing an application on the basis of the principle in Rice & Asplund is a parenting order or not. If it is a parenting order then the Act requires a consideration of all of the factors that bear upon the best interests of the child. This has been touched on in several cases. For example in SPS & PLS Warnick J said this:
77. An order simply dismissing an application to vary or discharge an earlier parenting order may not neatly fit within the definition of “Parenting Order” as set out in s 64B, although a variation or discharge of the earlier order would. However, the paramountcy principle still applies to the decision to dismiss an application to vary, because of the terms of s 60CA which are:
Child’s best interests paramount consideration in making a parenting order
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.
78. Authority supports this view. Speaking of the rule in Rice and Asplund, Nygh J with whom Barblett and Fogarty JJ agreed, said in In the Marriage of Newling and Mole (1987) FLC 91-856 at 76,467 [quoted earlier in these reasons]…(Emphasis in original)
60.This issue was taken up by the Full Court in Poisat where their Honours said this:
53.The application by the father is an application for a parenting order and, thus, the Act mandates that such matters as are relevant pursuant to s 60CC must be taken into account in determining the relevant child’s best interests.
54.Her Honour did so. However, we have considerable doubts as to whether the order dismissing the father’s application is a “parenting order” as defined in the Act. The (wide) definition in s 64B does not include dismissal of an application. Seen in the context of Part VII as a whole, the omission seems plainly intentional. For example, if an order dismissing an application was a “parenting order” the court would be obliged to apply the presumption in s 61DA and to consider the matters in s 65DAA in circumstances where the court was determining that no parenting order should be made.
6.1 For our part, we agree with the comments of Warnick J in SPS & PLS and the Full Court in Poisat, and we seriously doubt whether an order dismissing an application such as the mother’s here is a parenting order. We are not able to come to a concluded view though because we have not heard any argument directed to this issue.”
In addition to the authorities referred to above the Full Court in Walter & Walter (2016) FamCAFC 56 (Walter & Walter) referred to the decision in CDW v LVE (2015) WASCA 247 at [85] where it was said of a change of circumstance that:
“… Plainly a circumstance can only constitute a relevant 'change' if it is a circumstance which was outside or beyond the contemplation or consideration of the parties and the court at the time the original parenting orders were made. Put another way, if the current circumstances were within the contemplation of the parties and were considered by the court at the time the original parenting orders were made, there is no basis upon which they can be said to constitute a change which would justify the prospect of continuing litigation with respect to parenting arrangements, given the adverse effect which uncertainty and unpredictability with respect to parenting arrangements can be assumed to have upon the interests of the child concerned…”
In Walter & Walter the Full Court said:
102. 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. Central to Mr North’s arguments it can, I think, be accepted that the rule might also be applied at any point between the two – for example, as Mr North would contend, after receipt of a Family Report.
103. In SPS, Warnick J said:
… [I]n my view, when the threshold question described in Rice & 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 upon a hearing. Though sometimes unstated, the underlying conclusion will or ought to 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.
104. And, in so deciding:
… the facts that relate to the best interests of children per se and to the determination of such questions as whether there has been a change of circumstances of sufficient magnitude to justify a fresh consideration of parenting arrangements are likely to be identical or at least intertwined and to the extent that the facts are otherwise, they may well not be susceptible of identification or assessment for weight until all of the evidence bearing upon factors that relate to a child’s best interests are before the court. The nature of the hearing that follows if the Rice & Asplund rule is not applied as a preliminary matter, as described by authority, may well be the wise and practical choice.
105. Yet, where the rule is applied at a preliminary stage, as it was in this case, the court’s jurisdiction and power is invoked in respect of two separate questions, albeit that, as Warnick J points out, the best interests of the relevant children runs as a common thread through both and they can be “intertwined”. As authority demands the first question is, are “the interests of the child[ren], in not being the subject of further litigation … more powerfully in the child[ren’s] welfare than to allow the application to continue”. The second question, namely what new parenting orders are in the children’s best interests, falls to be answered only if the first question is answered in the negative.”
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)
Consideration
This matter proceeded on the papers with submissions made by or on behalf of each of the parties. In considering this matter, I have referred to the material on which the parties relied and for the purposes of these reasons for decision taken the applicant’s material at its highest and had regard to the past circumstances at the time the Orders were made.
The Full Court in Marsden & Winch [2009] FamCAFC 152, at paragraph [50] stated:
“…in a particular case a court should be willing to embark upon another hearing concerning the child and parent, or whether to do so would itself be demonstrably contrary to the best interests of the child, is a decision to be made in each particular case. How is that decision to be made? The court must look at:
(1) The past circumstances, including the reasons for the decision and the evidence upon which it was based.
(2) Whether there is a likelihood of orders being varied in a signifncant way as a result of a new hearing.
(3) If there is a such a likelihood, the nature of the likely changes must be weighed against the potential detriment to the child or children caused by the litigation itself. Thus, for example, small changes may not have sufficient benefit to compensate for the disruption caused by significant re-litigation.’
The application of the rule involved a two-step process. The Full Court in Marsden & Winch (supra) at paragraph [58], described a two-step process to be followed:
“…there is a requirement:
(1) for a prime facie case of changed circumstances to have been established; and
(2) for a consideration as to whether that case is a sufficient changed of circumstances to justify embarking on a hearing.”
In Carriel v Lendrum (supra) at [57], their Honours stated (emphasis added):
“In a case where the principle in Rice 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 child or children at the time of its making. Second, the fact that an order has been made reflects that disputation between parties to a parenting dispute, such dispute being inherently contrary to the best interests of the child 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 child to embark upon further litigation enquiring as to the child’s best interests unless it is first demonstrated that a sufficient change in circumstances has occurred since the parenting order was made.”
The authorities referred to earlier make clear that for the purposes of this application I should take the applicant’s case at its highest. There is a requirement for a prima facie case of changed circumstances to have been established and for this to be a sufficient change of circumstances to justify embarking on a new hearing on what is in the child’s best interests.
The applicant’s concerns and reasons why the Orders should be discharged were set out in his affidavit/s. The respondent’s affidavit material responds to these claims. The evidence before the Court firmly established that the applicant in the earlier proceedings was seeking orders similar to the orders sought in this application. I accept the criticisms made by the respondent of the applicant’s claims of a change of circumstances.
The applicant made claims about concerns he had regarding the ability of the Anglicare to provide the service/s referred to in the Orders. However, the applicant provided no independent evidence from Anglicare to corroborate those claims and on his own admission had not availed himself of the opportunity to spend time with the child since July 2017. The applicant’s admission in submissions before the Court was telling (i.e. he chose to pursue an application to change the Orders and had not spent time with the child as provided for therein).
Similarly, the applicant’s claims that the respondent not attending counselling as provided for in the Orders had no independent support in the evidence beyond his claim to that effect.
There were attached to the applicant’s affidavit, letters of support from his family members, (but these were not properly before the Court) and there was no independent medical evidence or current reports from Anglicare.
The respondent’s submission characterising the applicant’s material as a “litany of complaints” about the reasons for decision in Barrine & Vance (supra) along with the applicant’s implicit admission in submissions before the Court that he had chosen to file another application rather than pursue an appeal of the Orders accurately summarises the state of the evidence before the Court.
The issue of the applicant’s location (or living arrangements and proximity of those to the child’s residence) and whether the arrangements he sought were either in the child’s best interests or reasonably practicable was very much central to the previous proceedings.
The previous controversy, noting that it is exactly the same applicant seeking live with orders, was determined on 31 March 2017. The applicant in submissions before the Court pointed to the appeal and dismissal of the intervention order as constituting changed circumstances and did not at that time contend any other circumstances were outside or behind the contemplation or consideration of the parties and the Court at the time the Orders were made.
As the authorities make clear, the purpose of the ‘rule’ in Rice & Asplund is to prevent endless litigation between parties over children. There must be a real likelihood of the Orders being charged, and even then the likely change must be weighed against the potential detriment to the child caused by the litigation itself.
While I accept that the intervention order is no longer in force since the Orders were made, I find the change has minimal impact on the fundamental concerns raised by the Court when this issue was litigated in early 2017.
The circumstances referred to in Barrine & Vance (supra) at inter alia paragraphs [54], [65], [66], [87] & [89] appear to remain (even on the applicant’s own case).
Even giving every allowance for a self-represented litigant, the critical lack of evidence before the Court of a relevant material or significant change in circumstances that would warrant the litigation between the applicant and respondent being reopened tells in favour of the application being dismissed.
The only changed circumstances that I can find in the evidence is that the intervention order no longer exists. I must weigh that change and the significance or otherwise of it against the circumstances that the child is currently living in and how his best interests would be met. Having considered all of the evidence, I am satisfied that it is in the child’s best interest for this application to be dismissed.
Conclusion
Therefore, having regard to:
(a) the material of the applicant taken at its highest;
(b) the past circumstances;
(c) and the Orders,
the Court is not satisfied the applicant has demonstrated a case of changed circumstances or that there is a likelihood the Orders could be varied in a significant way. The Court is satisfied that the child’s best interests in not being the subject of further litigation are more powerfully in his welfare than to allow the application to continue.
For those reasons, the application filed 19 June 2017 will be dismissed.
I certify that the preceding fifty eight (58) paragraphs are a true copy of the reasons for judgment of Judge O’Sullivan
Date: 2 March 2018
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