Beach & Watson
[2021] FedCFamC1F 64
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)Beach & Watson [2021] FedCFamC1F 64
File number(s): PAC 6212 of 2020 Judgment of: HARPER J Date of judgment: 20 September 2021 Catchwords: FAMILY LAW - CHILDREN - Rice & Asplund preliminary issue determination – Where previous judgment given by the Court in 2017 – Where the mother has sole parental responsibility for the child, and the child lives with the mother – Where existing orders provided for father to spend time with the child as agreed with the mother or as ordered by the Court – Where the parties have attended family dispute resolution and have failed to agree on overnight time – Where the Father seeks equal shared parental responsibility and overnight time with the child – Where sufficient change of circumstances has been established to provoke a new enquiry. Legislation: Family Law Act 1975 (Cth) ss 60I, 68L, 69ZQ Cases cited: Defrey & Radnor [2021] FamCAFC 67
Edwards & Edwards (2006) FLC 93-306; [2006] FamCA 1230
Galloway & Steele [2021] FamCA 508
Gotch & Gotch [2009] FamCAFC 3
Jaynes & Rundle [2020] FamCAFC 292
Judd & Pryor (No. 2) [2020] FamCA 934
King v Finneran (2001) FLC 93-079; [2001] FamCA 344
Marsden & Winch (2009) 42 Fam LR 1; [2009] FamCAFC 152
Miller & Harrington (2008) FLC 93-383; (2008) Fam LR 654; [2008] FamCAFC 150
Poisat & Poisat (2014) FLC 93-597; [2014] FamCAFC 128
Reid & Lynch (2010) FLC 93-448; (2010) 44 Fam LR 141; [2010] FamCAFC 184
Rice & Asplund (1979) FLC 90-725; (1979) 6 Fam LR 570; [1978] FamCA 84
Sandler & Kerrington (2007) FLC 93-323; [2007] FamCA 479
SPS & PLS (2008) FLC 93-363; (2008) 39 Fam LR 295; [2008] FamCAFC 16
Division: Division 1 First Instance Number of paragraphs: 33 Date of hearing: 8 September 2021 Place: Sydney Counsel for the Applicant: Ms Haughton Solicitor for the Applicant: Soden Legal Counsel for the Respondent: Mr Schonell Solicitor for the Respondent: Frank Law ORDERS
PAC 6212 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR BEACH
Applicant
AND: MS WATSON
Respondent
ORDER MADE BY:
HARPER J
DATE OF ORDER:
20 SEPTEMBER 2021
THE COURT NOTES THAT:
A.The Court is satisfied that the Applicant Father (“the father”) has established a sufficient change of circumstances to justify permitting his Initiating Application filed 12 November 2020, seeking variation of final parenting orders made on 15 March 2017, to progress.
B.The Court declines to make any order dismissing the father’s Initiating Application filed 12 November 2020 as a preliminary determination.
THE COURT ORDERS THAT:
1.The interim relief sought by the Respondent Mother (“the mother”) in her Response filed 16 February 2021 be dismissed.
Independent Children’s Lawyer
2.Pursuant to s 68L of the Family Law Act 1975 (Cth) (“the Act”) an Independent Children’s Lawyer is appointed for:
(a)B, born … 2013 (“the child”).
3.Legal Aid NSW is requested to make arrangements as soon as possible for appropriate representation for the child and forthwith upon such appointment, the Independent Children's Lawyer file a Notice of Address for Service.
4.The Court advise the Senior Solicitor, Family Law Litigation Section of Legal Aid NSW of this order forthwith.
5.Each party make available to the Independent Children's Lawyer within 7 days of notification or filing of the Notice of Address for Service copies of all applications and affidavits upon which that party relies together with any existing orders and copies of any relevant reports.
6.Leave is granted to the Independent Children’s Lawyer to issue such subpoenas as they consider necessary for the appropriate conduct of the matter and/or as is reasonably requested by a party.
Child Impact Report
7.Pursuant to s 62G of the Act, the parties and the child are directed to attend with a Court Child Expert (practicing under their appointment as a family consultant) nominated by the Court Children’s Service (“the Court Child Expert”) for the purposes of the preparation of a Child Impact Report at the dates and times below, or as otherwise directed by the Court Child Expert.
(a)Part 1 of the event will occur by video, using Microsoft Teams, on 25 November 2021, with:
(i)the Applicant to attend at 9.00am; and
(ii)the Respondent to attend at 10.30am.
Microsoft Teams links will be provided to the parties by the Court Child Expert prior to the event.
(b)Part 2 of the event will occur in person at the Sydney – Lionel Bowen Building registry at 97-99 Goulburn Street, Sydney on the morning of 29 November 2021. Specific details regarding the attendance of the parties and the child on this date will be provided to the parties in Part 1 of the event.
8.Each party will do all things necessary to ensure the child attend upon the Court Child Expert pursuant to s 62G(3A), unless otherwise determined by the Court Child Expert that s 62G(3B) applies.
9.The parties and the child shall continue to attend at such times, dates and places as the Court Child Expert may advise.
10.Not later than 4.00 pm on 27 September 2021 the parties must provide their contact telephone numbers and email addresses to …@fcfcoa.gov.au.
11.Pursuant to Order 6 herein, the Court Child Expert shall provide a written report to the Court and the report shall deal with the following matters:
(a)any agreement reached between the parties;
(b)identification of key issues requiring resolution;
(c)any views expressed by the child and any matters (such as the child’s maturity or level of understanding) that would affect the weight that the court should place on those views;
(d)the impact of the issues/dispute before the Court on the child;
(e)any other matters that the Court Child Expert considers important to the welfare or best interests of the child.
12.Upon completion, the Child Impact Report shall be provided to the Associate to Justice Harper for release to the parties, including by way of order made in Chambers.
13.The Court Child Expert shall be at liberty to inspect any material filed by the parties.
14.The Independent Children’s Lawyer appointed in accordance with the orders has leave to relist the proceedings on 7 days’ notice before a Judicial Registrar.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Beach & Watson has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HARPER J
INTRODUCTION
These are parenting proceedings between Mr Beach (“the father”) and Ms Watson (“the mother”) concerning B, born in 2013 (“the child”).
Judgment making final parenting orders in respect of the child was delivered on 15 March 2017 by her Honour Justice Rees ("the final judgment"), after a four day hearing ("the 2017 orders").
In summary, the 2017 orders provided as follows:
·The child live with the mother;
·The mother have sole parental responsibility for the child;
·The mother notify the father of any proposed decisions of long term care and welfare of the child including school enrolment, medical treatment and take into consideration any views expressed by the father;
·The child's name to be registered with NSW Registry of Births, Deaths and Marriages and not be changed without the consent of both parents or by order of the Court;
·From 6 May 2018 the father spend time with B on an unsupervised basis having built up from 3 hours a week with the paternal grandmother supervising, to full days unsupervised from 9.30am to 5pm each Sunday;
·The father was also to spend "special" days with B;
·After 2 years, changeover was to take place at C Town Shopping Centre;
·The mother was permitted to suspend B's time with the Father for a period up to two weeks, twice per year for the purpose of going on a holiday with B;
·The mother and father to communicate by text message or email and keep each other informed of contact details; and
·The mother and father to enrol in the "AA Course" parenting orders program and the "Circle of Security" program.
Order 24 of the 2017 orders provided as follows:
24. That, if the mother and the father are unable to reach an agreement about the child spending overnight time with the father after she has reached the age of seven (7) years, they shall do all acts and things necessary to arrange mediation provided by an Accredited Family Dispute Practitioner during Term 3 of the 2020 school year, and both parents shall attend the mediation and make a genuine attempt to reach an agreement about the issue of the child commencing to spend overnight time with the father.
The parties attended a mediation in early 2020, but failed to reach any agreement. On 8 May 2020, Ms BB of Family Relationships Centre issued the father with a certificate pursuant to s 60I of the Family Law Act 1975 (Cth).
On 12 November 2020, the father filed an Initiating Application seeking to vary the 2017 orders. The father seeks a range of orders, but in summary, he seeks discharge of the 2017 orders, an order for equal shared parental responsibility, and for the child to spend time with him each alternate weekend from after school or 3.00 pm on Friday until before school or 9.00 the following Monday, and half school holidays. He continues to accept the child should live with the mother. He also seeks orders for special occasions.
On 8 September 2021, there was listed before me a hearing concerning the application of the principles in Rice & Asplund (1979) FLC 90-725. The parties conducted the hearing before me on the basis that the mother pressed for a threshold application of those principles, contending the father's Initiating Application should be dismissed with costs.
The father relies upon the following documents:
(1)Initiating Application filed on 20 November 2020;
(2)Notice of Child Abuse, Family Violence or Risk filed on 20 November 2020;
(3)Application – Contravention filed on 20 November 2020;
(4)Application – Contravention filed on 6 May 2021;
(5)Affidavit of Mr Beach filed on 10 August 2021;
(6)Affidavit of Ms M Beach filed on 10 August 2021; and
(7)Case Outline filed 7 September 2021.
The mother relies upon the following documents:
(1)Response to Final Orders filed 16 February 2021;
(2)Affidavit of Ms Watson filed 27 August 2021;
(3)Affidavit of Mr CC filed 30 August 2021;
(4)Parenting Questionnaire filed 26 October 2016; and
(5)Case Outline filed 7 September 2021.
APPLICABLE LAW
A preliminary hearing concerning the threshold application of the principles in Rice & Asplund is common in this Court. In Judd & Pryor (No. 2) [2020] FamCA 934 at [16] and [17], Austin J set out the applicable approach as follows:
16. The infinite vicissitudes of life mean no parenting order can ever be truly immutable, which reality is recognised in the Act (s 65D(2)). However, it is well established that no parenting orders, intended to be final, will be revised unless an applicant seeking to vary the orders can demonstrate a material change of circumstance to warrant the revision (Rice & Asplund; SPS & PLS [2008] FamCAFC 16; (2008) FLC 93-363 at [1]; Marsden v Winch [2009] FamCAFC 152; (2009) 42 Fam LR 1 ("Marsden v Winch") at [48]; Langmeil & Grange [2013] FamCAFC 31 at [43]- [48]; Poisat & Poisat ([2014] FamCAFC 128; 2014) FLC 93-597 ("Poisat & Poisat")).
17. The question of whether there has been a change in circumstances of sufficient magnitude to warrant revision of existing orders may be determined either by way of preliminary enquiry or comprehensive hearing (Poisat & Poisat at [39]-[41]; Marsden v Winch at [46]-[47]; Miller & Harrington [2008] FamCAFC 150; (2008) FLC 93-383 ("Miller & Harrington") at [80]-[83]) but, at whichever stage the determination is made, the application of the Rice & Asplund guideline is merely a manifestation of the paramountcy principle (Poisat & Poisat at [18], [19], [40], [42]; Marsden v Winch at [55]; Miller & Harrington at [101]) and procedural fairness should always be observed (Marsden v Winch at [56]).
Since the hearing was limited to the determination of the Rice & Asplund question as a preliminary issue, while the best interests of the child remain paramount, it is not necessary to take account of and weigh all of the primary and additional considerations prescribed by s 60CC of the Family Law Act 1975 (Cth) (“the Act”). This would defeat the object of shielding children from involvement in further unnecessary litigation: King v Finneran (2001) FLC 93-079 at [41]; Reid & Lynch (2010) FLC 93-448 at [252] – [259].
In Poisat & Poisat (2014) FLC 93-597 at [34] (“Poisat”), the Full Court said:
[t]he 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 (see, for example, SCVG & KLD (2014) FLC 93-582).
However, where there are long standing existing arrangements, as is the case here, ss 60CC(3)(d) and (3)(l) need particular attention, since they "relate to the effect of change in the children's lives and the benefit to the children of finality in litigation" (Poisat at [32]). Section 60CC(3)(a) and the child's views, bearing in mind her age, should also be considered.
Where a Rice & Asplund question is determined as a preliminary issue, the hearing is conducted on its merits and not upon the principles of summary dismissal: Marsden & Winch (2009) 42 Fam LR 1 at [47] citing Warnick J in SPS & PLS (2008) FLC 93-363 ("SPS & PLS") at [74]; Jaynes & Rundle [2020] FamCAFC 292 at [12] – [14]. To afford procedural fairness, the parties must be clear that the preliminary issue may be determinative of the application: Edwards & Edwards (2006) FLC 93-306, [97]-[99]; Miller & Harrington (2008) FLC 93-383 at [95] – [96]; Gotch & Gotch [2009] FamCAFC 3 at [13]; Marsden & Winch, at [56]. This was clear to all parties in this matter.
In Defrey & Radnor [2021] FamCAFC 67 ("Defrey"), the Full Court (Ainslie-Wallace, Watts and Tree JJ) endorsed this approach at [19] – [22]:
19. In our view, the Rice & Asplund test applies to all applications which seek to revisit parenting orders. Sometimes the test will be easily satisfied even though the issues to reconsider are major ones and sometimes the test will be easily satisfied even though the issues to be revisited are relatively minor in character. In both situations, the overarching test is to be applied, namely, (having regard to the best interests of the child) new events or changed circumstances have to be sufficient to provoke a new inquiry.
20. It is also useful when considering, as a preliminary matter, what issues a parent might be permitted to re-litigate, to remember that under s 69ZQ(1)(a) of the Family Law Act 1975 (Cth) ("the Act"), there is a mandatory requirement to decide which of these issues in the proceedings require full investigation and hearing.
21. The rule in Rice & Asplund involves the exercise of discretion and not merely a process of making factual findings. That is because the "rule" is a manifestation of the best interests principle. All s 60CC(2) and (3) matters, so far as they are relevant, must be considered, to the extent that they can be, based on the material before the court. The rule focuses particularly on s 60CC(3)(l) and the preference to make final orders in parenting matters that are least likely to lead to the institution of further proceedings in relation to the child. Axiomatically that is because unless other considerations are more weighty, it is not in the best interests of a child for that child to be the subject of repeated litigation between his/her parents. There is a focus in an application of this kind upon the change(s) in circumstances that outweigh the negative impact of reopening litigation. Although when considering the preliminary issue, if cross-examination is not permitted, then the evidence of the father is to be taken at its highest, and it is not only the father's evidence that is considered.
22. …The primary judge's task was a two-staged process. First, to make findings of fact as to what changes there had been in circumstances since the making of the 2015 orders and secondly, to assess whether or not the father had established that these changes are sufficient to provoke a new inquiry, or put in another way, whether the father has established a prima facie case of changed circumstances that would justify embarking on a second contested parenting hearing as being in the child's best interests.
The onus is on the father to not simply establish a prima facie case of change, but a prima facie case of sufficient change. On the question of sufficiency, in Galloway & Steele [2021] FamCA 508 at [70] I expressed the view, which I adhere to, that:
The concept of sufficiency in this context does not mean that any change of circumstances will necessarily be enough to provoke a fresh enquiry. An assertion of sufficiency will be properly tested by consideration not only of what has changed, but also what has not changed. It should also be emphasised that a change is relevantly sufficient if it provokes a new inquiry. Clearly, some changes may provoke resistance to a new inquiry, even if they are material. Then any changes must be weighed against the negative impact of reopening litigation.
For the purposes of determining the preliminary question, since no cross-examination took place, I take the father's evidence at its highest, in the sense that it is untested and unchallenged directly in cross-examination: Defrey at [21]. However, this acceptance is not unqualified. I also take account of all other evidence before the Court, including the mother's evidence. It is open to the Court to make findings of fact or resolve factual disputes in a limited way, to the extent possible and necessary to determine the question of whether the mother has established a prima facie case of changed circumstances that would justify embarking on another contested parenting hearing as being in the child's best interests: Miller & Harrington (2008) FLC 93-383 at [81], Poisat & Poisat (2014) FLC 93-597 at [44]; Jaynes & Rundle at [12].
DISCUSSION
In this matter, the mother submitted that there had been no change of circumstances in at least five respects. Difficulties at handover remained a constant for the parties, the continuance of poor communication between the parties, the parties' inability to reach to agreement, the expressed wishes of the child, and the mother's relationship with her new partner, Mr CC, remain unchanged since before the final judgment was handed down.
However, I am satisfied there are at least seven factors since the 2017 orders sufficient to provoke a new inquiry and which warrant permitting the proceedings to go forward.
First, the child is older. She is now eight. When the 2017 orders were made, she was three and not attending school. The child now attends school. Her circumstances, such as her daily routine, are clearly quite different to her circumstances in 2017. While the mere fact of the child growing older may not of itself constitute a sufficient change of circumstance, it does when coupled with her now attending school.
Secondly, according to the evidence, changeovers have been fractious and school may be a suitable place for a new regime of changeover. The mother argued that tension at changeover is nothing new between these parents. I will accept that as true. But now the child is eight. Unlike a three year old, she would not just witness the unpleasant interactions between the parents at changeover but she will have a greater understanding of the conflict which she witnesses.
Thirdly, the 2017 orders obliged the parties to engage in mediation about overnight time with the father in the event the parties could not agree (Order 24). As the father pointed out, at [239] to [251] of the final judgment, Rees J specifically addressed the issue of the child's time with the father progressing to overnight time, and made Order 24 over the opposition of the mother. The parties have been unable to agree about the child's time progressing to overnight and the required mediation failed. This leaves the question of overnight time with the father at an impasse, with the possibility of agreement through mediation apparently exhausted. I accept the submission of the mother that Rees J in making Order 24 must have contemplated the possibility that mediation may fail. But this does not change the fact there now exists the failed mediation. This is a material change. Prior to the failed mediation Order 24 provided a mechanism to bring about overnight time between the child and the father. That mechanism is no longer effective, in the sense that although the parties could theoretically engage in further mediation at any time without Court order, the probable impossibility of any agreement between the parents about the child spending overnight time with the father has been laid bare. This is a material change.
Fourthly, the father alleges there have been contraventions of the 2017 orders by the mother. In Sandler & Kerrington (2007) FLC 93-323 at [49] Warnick J expressed the view that contraventions could constitute a change of circumstances. But in that case, contraventions were established. At present, contraventions have been alleged but not established. While these allegations remain to be determined, the possibility of contravention of the 2017 orders by the mother is a material change.
Fifthly, the child has now spent some five years of supervised and unsupervised time with the father in accordance with the 2017 orders. It is clear the child's relationship with the father has developed. In light especially of s 60CC(2)(a) and the question of the benefit of a meaningful relationship between the child and the father, this is a material change. The father's evidence, supported by the paternal grandmother, is that the child's relationship with him is strong, warm and loving.
Sixthly, the evidence of the father is that child often says she wants to spend more time with him and has asked for overnight time.
Seventhly, for her part, the mother alleges that as the child has grown older, the father has become more "emotionally manipulative" of the child, and that she regularly says she does not want to go with the father. According to the mother, the child has said "I don't want to go with dad" or "I don't like my dad, I kept running away from him and not letting him touch me at all." At a preliminary hearing of the threshold issue I am unable to resolve this factual difference. But I accept, as the father submitted, the evidence of the mother about the child's attitude to the father, if true, would raise the question of adjusting the final orders anyway. Moreover, the disagreement in the evidence about the child's views raises the inference that the child is possibly saying what she believes each parent wants to hear, and is suffering a damaging conflict of loyalties, while caught between her warring parents.
In my view these seven factors, in combination and cumulatively, establish a prima facie case of changed circumstances that justify embarking on a second contested parenting hearing as being in the child's best interests.
I have taken account of the mother's arguments that there has been no change to the inability of the parties to agree, to communicate respectfully, that changeover has always been fractious, and the father has long had a problem with the mother's partner, Mr CC.
However, in my view the conclusion reached at [27] above is supported even if those submissions of the mother about no change of circumstances are otherwise accepted for the purpose of this judgment.
The mother also argued that the final orders sought by the father could never be made, in particular, an order for equal shared parental responsibility because even on his own evidence the conflict between the parties was deep and intractable. That may be true. But for the purposes of a determination of the preliminary issue, this is not of great relevance. Even if no order for equal shared parental responsibility is ultimately made, other orders for time spent with the father may be made. The proceedings are at an early stage and the evidence is not complete. The immediate question is only whether the father has established a sufficient change of circumstance to provoke a new inquiry. As already stated, I am satisfied that he has.
I decline to make the orders for dismissal of the father's Initiating Application sought by the mother.
In light of the serious conflict between the parties, I am satisfied an Independent Children's Lawyer should be appointed.
I will order the proceedings to progress to a Child Impact Report.
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Harper. Associate:
Dated: 20 September 2021
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