Bircher & Bircher
[2022] FedCFamC1F 884
Federal Circuit and Family Court of Australia
(DIVISION 1)
Bircher & Bircher [2022] FedCFamC1F 884
File number(s): BRC 5628 of 2022 Judgment of: JARRETT J Date of judgment: 16 November 2022 Catchwords: FAMILY LAW – PARENTING – application for final parenting orders – where final parenting orders already in place – Rice and Asplund (1979) FLC 90-725 – whether the parties demonstrate a material change in circumstances sufficient to warrant fresh consideration of parenting orders – where the significance of the changed circumstances promoted by the applicant (if they exist) insufficient to warrant revisiting the children’s welfare – applications dismissed Legislation: Family Law Act 1975 (Cth), ss 69ZR, 69ZQ, 70NBA(1) Cases cited: Bircher & Bircher [2020] FamCAFC 214
Defrey & Radnor [2021] FamCAFC 67
Elmi & Munro (2019) FLC 93-912; [2019] FamCAFC 138
Marsden v Winch (2009) 42 Fam LR 1; [2009] FamCAFC 152
Miller & Harrington (2008) FLC 93-383; [2008] FamCAFC 150
Rice & Asplund (1979) FLC 90-725
Searson & Searson (2017) FLC 93-788; [2017] FamCAFC 119
Shan & Prasad (2020) 61 Fam LR 440; [2020] FamCAFC 189
SPS and PLS (2008) FLC 93-363; [2008] FamCAFC 16
Stern & Colli [2022] FedCFamC1A 95
Division: Division 1 First Instance Number of paragraphs: 50 Date of hearing: 3 November 2022 Place: Brisbane Solicitor for the Applicant: Litigant in Person Solicitor for the Respondent: Litigant in Person ORDERS
BRC 5628 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS BIRCHER
Applicant
AND: MR BIRCHER
Respondent
order made by:
JARRETT J
DATE OF ORDER:
16 November 2022
THE COURT ORDERS THAT:
1.The amended application for final orders filed on 18 August, 2022 is dismissed;
2.The response to final orders and the application in a proceeding, both filed on 1 August, 2022 are dismissed;
3.In the event that the respondent seeks a costs order other than that each party shall bear their own costs he must, within 14 days of the date of these orders, file and serve upon the applicant written submissions specifying the precise order sought and the basis upon which he argues those orders ought to be made. The respondent’s written submissions must not exceed five A4 pages in length.
4.In the event that the respondent files and serves written submissions in accordance with order 3 hereof, the applicant may file and serve written submissions in response no later than 14 days after the service of the respondent’s submissions upon her. The written submissions filed by the applicant must not exceed five A4 pages in length.
5.In the event that the respondent does not file and serve written submissions in accordance with order 3 hereof within 14 days of the date of these orders, the order of the court is that each party shall bear their own costs of the applications and response the subject of orders 1 and 2 hereof.
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 a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JARRETT J:
By her amended application filed on 18 August, 2022 the applicant seeks orders discharging, in certain respects, parenting orders made on 27 November, 2019 by a judge of the Family Court of Australia (as it was then known); she seeks alternative orders in their place. The orders concern the parties’ three children, B (15 years of age), C (14 years of age) and D (soon to be 13 years of age). The respondent opposes her application. However, by his own application in a case filed on 1 August, 2022 he too seeks a variation of the orders.
On 13 September, 2022 the respondent also filed an application for contravention in which he alleged that the respondent contravened the November, 2019 orders in certain respects. The hearing of that application was listed before me on the same day as the application to which these reasons relate. I heard and determined the application for contravention first. I gave separate reasons in respect of my determinations and orders on the application for contravention. Although these reasons do not incorporate my earlier reasons with respect to the application for contravention it should be noted that the relief sought by the respondent in his application in a case (which is dealt with in these reasons) was also sought in his application for contravention pursuant to s 70NBA(1) of the Family Law Act 1975 (Cth). For the reasons I delivered with respect to the contravention application, I was not satisfied that I should make the orders sought by the respondent by way of variation of the November, 2019 orders.
The present applications, filed against a long and arduous history of litigation between these parties commencing in 2011, were initially before a judge of the Federal Circuit and Family Court of Australia (Division 2). On 26 August, 2022 a judge of that court made the following order:
That the matter be adjourned for hearing in accordance with the principles of Rice & Asplund at 9:30 AM on 3 November 2022…”
Ample legislative authority exists for the determination of a particular issue or issues prior to a more fulsome hearing of the application before the court. Section 69ZR of the Act provides:
(1)If, at any time after the commencement of child-related proceedings and before making final orders, the court considers that it may assist in the determination of the dispute between the parties, the court may do any or all of the following:
(a) make a finding of fact in relation to the proceedings;
(b) determine a matter arising out of the proceedings;
(c) make an order in relation to an issue arising out of the proceedings.
[…]
(2)Subsection (1) does not prevent the court doing something mentioned in paragraph (1)(a), (b) or (c) at the same time as making final orders.
[…]
Section 69ZQ provides that:
(1) In giving effect to the principles in section 69ZN, the court must:
[…]
(a)decide which of the issues in the proceedings require full investigation and hearing and which may be disposed of summarily;
[…]
Further, it has long been recognised that although parenting orders may be expressed to be final (in that they are not expressed to be until further order) they nonetheless may be suspended, discharged or varied by the court, or alternative orders put in their stead, if the court is satisfied that there has been a significant or material change in circumstances sufficient to warrant the revisiting of the welfare of the child or children who are the subject of the orders. The legislative powers of the court, the history of those powers and some recent jurisprudence on them is neatly laid out in paragraphs 33 to 36 of Elmi & Munro (2019) FLC 93-912. Those paragraphs state:
33.It is obvious that what particular order is in the best interests of a child may change as time passes and as circumstances change. Indeed, the decision in Rice and Asplund accepts this but places a brake on repeated applications by insisting that the change in circumstances must be such as to warrant a reconsideration of the orders.
34.Secondly, again, contrary to the opinion of the trial judge, the Act specifically authorises reconsideration of parenting orders. Section 65D provides:
65D Court’s power to make parenting order
(1)In proceedings for a parenting order, the court may, subject to sections 61DA (presumption of equal shared parental responsibility when making parenting orders) and 65DAB (parenting plans) and this Division, make such parenting orders as it thinks proper.
(2)Without limiting the generality of subsection (1) and subject to section 61DA (presumption of equal shared parental responsibility when making parenting orders) and 65DAB (parenting plans) and this Division, a court may make a parenting order that discharges, varies, suspends or revives some or all of an earlier parenting order.
35.This section is in similar terms to s 64(7) of the Act which applied in 1978 and which was expressly referred to by the Court in Rice and Asplund. It stated:
A court may discharge or vary an order under this section, or may suspend any part of the order and may revive the operation of any part so suspended.
36.Further, as the Full Court pointed out in Poisat, the principle has received express approval by the High Court of Australia and by the legislature. Their Honours said:
12.Such an interpretation derives force from the treatment of the principle in the unreported special leave application in Lowe v Lowe (unreported, High Court of Australia, Mason CJ, Dawson and Toohey JJ, 6 April 1990). Tellingly, there is reference to it by the legislature (albeit as a “principle”) in Notes to both s 44 of Schedule 1 to the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) and s 47(2) of Schedule 1 to the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth). The Explanatory Memoranda to both pieces of legislation, too, refer to “the principle in Rice and Asplund” limiting:
89.… the court’s capacity to rehear matters in two kinds of cases: those where there is a change in the circumstances of the parties where some new factor has arisen which would justify a serious step; and those where there is some factor which was not disclosed at a previous hearing that would have been material.
90.It is not generally in the best interests of the child to have repeated applications concerning them before the courts …
91.The note following sub-item 47(2) directs the reader to the principle in Rice and Asplund. This note is to assist readers, particularly self-represented litigants, to understand how sub‑items 47(2) links to the common law.
(Family Law Amendment (Family Violence and Other Measures) Bill 2011 (Cth), Explanatory Memorandum. See, also, Family Law Amendment (Shared Parental Responsibility) Bill 2006 (Cth), Supplementary Explanatory Memorandum, at [10]-[13]).
Presumably what was intended by the order I have extracted above was that there be a hearing of the issue as to whether either party had established that there has been a change in circumstances since the making of the orders on 27 November, 2019 that is sufficient to warrant revisiting of the welfare of these children. The parties seem to have appreciated that was the issue before the court and made submissions accordingly. Regrettably, however, the parties did not comply with the second order made on 26 August, 2022 which required them to file and serve an Outline of Case (Interim Hearing) no less than seven days prior to 3 November, 2022. Accordingly, I do not have the benefit of those written submissions from the parties, only their oral submissions.
I have had regard to the amended application for final orders filed by the applicant on 18 August, 2022, an affidavit of the applicant filed on 14 May, 2022 and a further affidavit of the applicant filed on 18 August, 2022 (which repeats and adds to the affidavit of 14 May, 2022). Although the applicant has filed other affidavits in these proceedings, they go to questions of service of the proceedings upon the respondent and are not relevant here.
I have also had regard to the response filed by the respondent on 1 August, 2022, an affidavit deposed by him and filed on 1 August, 2022, the application in a proceeding filed by him on 1 August, 2022 and an accompanying affidavit deposed by him on the same day.
The principles
In Rice & Asplund (1979) FLC 90-725, Evatt CJ said (at 78,905):
The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that, to quote Barber J., there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material….
(citations omitted)
In the more than 40 years since Rice & Asplund was decided it has been considered, explained and applied on countless occasions. Notably, in Marsden v Winch (2009) 42 Fam LR 1 the Full Court of the Family Court of Australia said:
57. In Miller & Harrington (supra) the Court posed the question:
105. Adapting the language used by Warnick J in SPS and PLS [supra], the question for consideration is: assuming the evidence of the [applicant] is accepted, is there a sufficient change of circumstances shown to justify embarking on a hearing?
58.That question might be better formulated in another way in the following proposition, namely that there is a requirement:
(1)for a prima facie case of changed circumstances to have been established; and
(2)for a consideration as to whether that case is a sufficient change of circumstances to justify embarking on a hearing.
These remarks were applied or referred to without disapproval by subsequent Full Courts in Searson & Searson (2017) FLC 93-788 and Shan & Prasad (2020) 61 Fam LR 440 at [41].
Most recently, in Defrey & Radnor [2021] FamCAFC 67 after considering what was said in SPS and PLS (2008) FLC 93-363 at [81] and [84], Miller & Harrington (2008) FLC 93-383 at [105] and Marsden v Winch at [58] the Full Court summarised the law concerning Rice & Asplund as follows:
19.In our view, the Rice & Asplund test applies to all applications which seek to revisit parenting orders. Sometimes the test will be easily satisfied even though the issues to reconsider are major ones and sometimes the test will be easily satisfied even though the issues to be revisited are relatively minor in character. In both situations, the overarching test is to be applied, namely, (having regard to the best interests of the child) new events or changed circumstances have to be sufficient to provoke a new inquiry.
20.It is also useful when considering, as a preliminary matter, what issues a parent might be permitted to re-litigate, to remember that under s 69ZQ(1)(a) of the Family Law Act 1975 (Cth) (“the Act”), there is a mandatory requirement to decide which of these issues in the proceedings require full investigation and hearing.
21.The rule in Rice & Asplund involves the exercise of discretion and not merely a process of making factual findings. That is because the “rule” is a manifestation of the best interests principle. All s 60CC(2) and (3) matters, so far as they are relevant, must be considered, to the extent that they can be, based on the material before the court. The rule focuses particularly on s 60CC(3)(l) and the preference to make final orders in parenting matters that are least likely to lead to the institution of further proceedings in relation to the child. Axiomatically that is because unless other considerations are more weighty, it is not in the best interests of a child for that child to be the subject of repeated litigation between his/her parents. There is a focus in an application of this kind upon the change(s) in circumstances that outweigh the negative impact of reopening litigation. Although when considering the preliminary issue, if cross-examination is not permitted, then the evidence of the father is to be taken at its highest, and it is not only the father’s evidence that is considered.
22.Consequently, the challenge to the primary judge’s discretionary decision is one to which the normal principles in House v The King (1936) 55 CLR 499 and Gronow v Gronow (1979) 144 CLR 513 apply. The primary judge’s task was a two-staged process. First, to make findings of fact as to what changes there had been in circumstances since the making of the 2015 orders and secondly, to assess whether or not the father had established that these changes are sufficient to provoke a new inquiry, or put in another way, whether the father has established a prima facie case of changed circumstances that would justify embarking on a second contested parenting hearing as being in the child’s best interests.
These passages were applied by a subsequent Full Court in Stern & Colli [2022] FedCFamC1A 95.
My task then, having regard to the earlier order, the reasons for it and the material on which it was based, is to determine whether either party establishes that there has been a change in circumstances since the making of the orders in 2019, or at least a prima facie case of such a change in circumstances. Thereafter, I must assess whether those changes are sufficient to provoke a new enquiry into the welfare of these children.
Consideration
The orders of 27 November, 2019
The orders made on 27 November, 2019 were made following a trial. Both parties represented themselves, though the Court had the benefit of an independent children’s lawyer, represented by counsel.
The orders provide for the parties to have shared parental responsibility for major long-term issues for their children save that:
(a)the applicant has sole parental responsibility for choosing which high school the children will attend; and
(b)the respondent has sole parental responsibility in relation to all health issues relating to the children.
Subject to the respondent’s written consent, the orders restrain the applicant from making any decision relating to the children's health and from making any appointments or attending any appointments for the children with any medical practitioner, therapist or allied health professional and from taking the children (or causing the children to be taken) to any appointments with any medical practitioner, therapist or allied health professional. There are further orders about restraints upon the applicant concerning the children’s health, including treatment for any ailments and their engagement with healthcare practitioners.
Order 3 deals with the living arrangements for the children, save for the December/January school holidays in each year. The orders provide for the children to live in a week about arrangement, with changeovers each Friday. Orders 4, 5 and 6 deal with the children’s living arrangements during the December/January school holiday period – they are to live with each of their parents for one half of the school holiday period alternating from the first half to the second half each year. Orders 7, 8, 9, and 10 deal with the children’s time with their parents on special occasions. Orders 11, 12 and 13 deal with communication between the children and parents. Orders 14 and 15 deal with changeovers. There are a raft of other orders dealing with various aspects of the children’s parenting including medical treatment, schooling and overseas travel.
The changes sought by the applicant
The applicant seeks wholesale changes to these orders. She seeks:
(1)a rearrangement of parental responsibility such that she is solely responsible for all decision-making in respect of major long term issues for the children;
(2)an order rearranging their living arrangements so that they live primarily with her; and
(3)a rearrangement of how the children spend time with each parent on their birthdays and at Christmas.
Her proposed changes would see B and D living with the respondent every second weekend from after school Friday until before school Monday in odd weeks of the school term and for half of all school holidays “at their discretion”; C would live with her and only spend up to half of the school holidays with the respondent “at [C’s] discretion”.
The changes in circumstances advanced by the applicant
In her affidavit filed on 14 May, 2022 the applicant swears (errors in the original):
3. This is the affidavit in support of varying the living arrangements in the current Parenting Orders made on 27th November 2019 by Justice Carew, as they are not in the children's best interests.
4. A trial for Parenting matters was attended in November 2019, with Justice Carew making Orders that included the children spending half of their time with each parent, in a week about arrangement and half of the Summer holidays and other special holiday orders.
5. These Orders have been in place for over two (2) years now, and the children were not happy after they changed in November 2019. They continue to be unhappy about the current arrangement.
6. The children have been asking for changes to these Orders very soon after, however the Mother encouraged the children to continue with the Orders.
7. The Mother has encouraged the children to continue with the Orders quite a few times since November 2019, hoping that they would settle into a routine and be comfortable with the Orders in place, however this is still not happening and the children are voicing very strong views about changes they want to make, as they are not happy with the current living arrangements.
8. Since the Orders changed in November 2019, all three (3) of the children have become teenagers and their views about how much time they spend with each parent has become a point of concern for them and state that they want to "speak to the Court". Due to their Father informing them about every Court attendance we have had since 2011 and many of the details, they are very aware of the Courts and Orders.
9. The Mother has emailed the Father in an attempt to allow the children to decide where they want to live and for how long, to make a new agreement, however the Father has ignored these attempts. The children have also attempted to speak to the Father about the living arrangements to no avail.
10. The Mother then initiated an FDR session at the […] Family Dispute Resolution Centre to discuss the issue of living arrangements, however the mediation did not proceed, and a certificate was issued. This certificate is attached as a separate document with the initiating application.
The applicant’s affidavit filed on 18 August, 2022 contains two further paragraphs. The first annexes two “discontinuation letters” for two of the children written by a psychologist. The second paragraph annexes the latest child support assessment between the parties.
The applicant’s oral submissions did not advance beyond the matters set out in her affidavits. She argues that the children are voicing “strong” views about changes that they want to make to the present orders and that they were “not happy” with the current living arrangements. She reiterated that they are all now older and are all teenagers (something not strictly accurate in respect of the parties’ youngest child).
However, none of her evidence deals with the changes that the children are apparently suggesting should be made to the orders or why it was that they were not happy with the current living arrangements. Absolutely no specificity is given by the applicant to her claims about the children’s “strong views”. It is impossible to tell from the evidence and submissions just what the changes are that she says the children are seeking (or if they are all seeking the same changes) and whether the changes that she says the children desire are significant or minor. Indeed, it is only by inference that one can conclude that the changes the children might be suggesting deal with the amount of time they spend with their parents. The applicant seems to be suggesting that an order should be made permitting the children to decide for themselves how much time they will spend with each of their parents. Such orders are generally seen as not being in the best interests of children.
On the applicant’s evidence the children have been “unhappy” with the orders and have desired a change of to the arrangements almost since the implementation of the orders in November, 2019. She asserts in her affidavits that the children have attempted to speak to the respondent about the living arrangements “to no avail”. However, no specificity (or indeed any probative evidence) of such attempts is included in her written evidence. The respondent denies that there have been any such discussions or attempts by the children.
The “treatment discontinuation letters” annexed to the applicant’s second affidavit are authored by Ms N, who is described as a “provisional psychologist”. In those letters she records the following:
(a)Ms N engaged with C in two psychological intervention sessions commencing in June, 2022;
(b)C had been experiencing an increase in anxiety, “particularly in relation to the busy family situation and increasing social and emotional demands of high school and friendships”;
(c)recently, “there have been efforts to change the long-standing custody arrangements and this has caused an increase in stress for the family”, although Ms N discusses neither the instigator of those changes nor the reasons for them;
(d)Ms N engaged with B on one occasion “for psychological intervention in the context of a complex family situation, with the potential for long-standing custody arrangements to change over the course of the next year”; and
(e)B reported “that his mood is generally good, and reported experiencing limited anxiety”, although clinical testing suggested that B is experiencing elevated anxiety symptomology, particularly in the areas of generalised anxiety and separation anxiety.
In C’s case Ms N declined to engage with her any further for the following reasons:
Given the current complex family situation and my lack of experience of assessment and intervention in the area of family law, I believe [C] will benefit from psychological intervention from a more skilled psychologist with expertise in the area of family custody arrangements. Given that I am a provisionally-registered psychologist, my overseeing supervisor does not have the capacity to provide ongoing support and supervision around this intervention. Therefore, I will discontinue treatment with [C], however wish her and his [sic] family well. Please do not hesitate to contact me in relation to [C].
Ms N gave similar reasons for discontinuing her engagement with B.
The reasons for judgment
Soon after a three-day hearing, the trial judge delivered reasons for judgment explaining why she made the orders to which I have referred above. It is immediately apparent from those reasons that she was dealing with an application by each of the parties to amend some earlier final parenting orders made in 2014 (and amended in 2015 and 2017). By the 2014 orders the children lived with their parents in a shared care arrangement whereby they lived with the respondent from Thursday to Tuesday each alternate week and otherwise with the applicant. They also spent half the school holidays with each parent. The parents had equal shared parental responsibility for decisions concerning the major long-term issues for the children.
The November, 2019 orders changed the children’s living arrangements from the regime imposed in 2014. However, the move from five nights a fortnight with the respondent to seven nights a fortnight was a relatively mild change.
Relevantly, the trial judge recorded this about the children’s wishes:
61.While a continuation of the current ‘live with’ arrangement has advantages in that it is what the children are used to and change may cause anxiety, there are disadvantages in continuing the current arrangement.
62.Firstly, there is an ongoing issue about the children or at least one of them returning to school on the Tuesday of every second week in the wrong uniform. Secondly, the children’s school week is interrupted in the middle of every week which can create issues about homework. Thirdly, the current arrangement does not accord with the expressed wishes of at least two of the children who have expressed views that an equal time arrangement is their preference and reflects what is “fair”, although [B] most recently told [Mr K] he was worried about the impact of changing the current arrangements. [B] nevertheless stated that there was not much difference in each household.
63.When asked about the influence of the father on the children’s stated wishes, [Dr H] was of the opinion that she had a good rapport with the children who were not afraid to express their views. She was of the view that the children’s developed sense of fairness was the driving force behind their stated wishes. [Dr H] referred to some research that indicates “that if children believe that it’s fair then that can actual[ly] reduce their self sense of loyalty conflict. So even though the external conflict between parents may not be resolved … if the children themselves feel that their own loyalty conflict is even reduced by a small amount that can in some cases have a positive effect”.
64.At times the children have expressed views to get away from their parents e.g. [B] has said he wants to live with friends and [D] has said he would like to move [overseas] or the moon. I consider that such wishes reflect the children’s frustration with their parents’ ongoing conflict.
65.[Mr K] initially opined that there would be a greater need for co-operation and communication with a week about arrangement but ultimately conceded there was unlikely to be much difference between the current situation and equal time. He opined that an advantage with equal time would be an increase in the children’s time with the father who encourages resilience in the children via a greater range of outdoor activity. [Mr K] emphasised the importance for the children engaging in activities independent of the parents and the development of peer relationships. In his view, the continuity of such activities across the households was very important.
66.I have been greatly assisted in this matter by reports and oral evidence of various experts, in particular, [Mr K], [Dr H] and [Dr G]. I generally accept their opinions other than [Mr K’s] apparent preference for keeping things as they are. To be fair to [Mr K], he did say he considered the option of no change to be the safest rather than the best option.
67.It is true that the children will likely spend an extra two afternoons per fortnight in after school care in an equal time arrangement when living with the father but I do not see that as a significant disadvantage.
(emphasis added)
These observations reflected what was said in two reports authored by a consultant social worker, Mr K: the first dated 1 December, 2016 and the second dated 30 August, 2019. B, who was nine at time of the first report told Mr K that he wanted half time between his parents, to be fair. C, who was eight at the time of the first report also told Mr K that “I want one week with dad and one week with mum”. The reason for this is because “I get more time with mum now, I want to see dad more”. D did not express a view about his living arrangements to Mr K for the purposes of this first report.
At the interviews for Mr K’s second report, B told Mr K that he did not want to change the arrangements because there could be more difficulties, saying “you just don’t know”. C adhered to her earlier view that an even amount of time between her parents would be appropriate. Again, D expressed no view.
It is apparent from the trial judge’s reasons for judgment that the views of the children were a significant factor in the case that was addressed by the evidence and carefully considered by her Honour. C had expressed a preference for an equal time arrangement both in 2016 and 2019. So too, B, although, as the trial judge points out, he most recently told Mr K that he was worried about the impact of changing the current arrangements.
It is also clear from the trial judge’s reasons that the weight ascribed to the children’s views was an issue. Her Honour’s reasons deal with the proposition that the children’s views were unduly influenced by the respondent. In paragraph 63 of the reasons she discussed the expert testimony bearing on that issue to the effect that the children’s views were their own. She seemingly accepted that evidence.
An appeal by the applicant against the trial judge’s orders was dismissed: Bircher & Bircher [2020] FamCAFC 214.
A change in circumstances?
The applicant’s evidence gives no shape or form to how, based on the children’s asserted suggestions, the current arrangements should change. An inference is open from the orders that she seeks in her amended application that the children wish to spend less time in their father’s household. However, these things should not be left to inference, especially in a case with such a litigious history and where the parents’ relationship is so poor and fractious.
Even accepting the applicant’s evidence at its highest, I am not satisfied that there has, in fact, been a change in the views of the children from what they were found to be in November, 2019. The applicant’s evidence is so lacking in probative value that I am not satisfied that she establishes a prima facie case of a change in circumstances. On that basis, her amended application should be dismissed.
Discretion
Even if I am wrong about my conclusion that the applicant has not established a prima facie case of a change in circumstances, as a matter of discretion, I do not consider that further litigation about these children will be in their best interests.
That children change their views about their living circumstances is not uncommon. Indeed, one might expect that unless they are living in an ideal environment (and these children are not) it is likely that from time to time their views (or the views of one or two of them) about their living arrangements might change. The views are unlikely to be uniform across the sibship. A change in views, of itself, is unlikely to have the necessary quality to demand that the welfare of the child or children expressing them be revisited. Rather, it is what informs that change of view which is ordinarily critical.
Here, there is no evidence about why the children, and C in particular, have changed their views. It is said that they have not liked the current arrangements but the mere expression of a preference when weighed against the prospect of further engagement in litigation and all that entails (especially when views of the children are relevant – there will be a need for some mechanism to properly establish those) does not tip the balance in favour of the litigation proceeding. These children have been the subject of almost continuous litigation for the last ten years. The evidence of both the applicant and the respondent, each taken separately and at its highest, does not persuade me that it will be in the interests of these children for there to be further litigation about their welfare.
Conclusion – the amended application
The applicant does not establish a prima facie case of a change in circumstances. Moreover, even if it might be said that a change in circumstances based upon the children’s wishes has been established, the applicant does not establish that those changes are sufficient to provoke a new enquiry into the welfare of these children.
The changes sought by the respondent
The respondent seeks the addition of two sentences to order 16 as follows:
The father is exempt from providing the contact details of any treating psychologists to the mother. The mother is restrained from contacting the treating psychologists/counsellor.
In his affidavit filed on 1 August, 2022, the respondent swears to his belief that there has not been a significant change of circumstances in the lives of the parties’ children. He seeks the dismissal of the amended application on the basis that the applicant does not discharge the obligation on her to demonstrate a relevant change in circumstances. He does not contend, for his own part, that there is any relevant change of circumstances either. On that basis, his application for variation of the relevant orders should also be dismissed.
An alternative view is that the respondent’s application might be seen as an attempt to secure further orders consistent with those made in November, 2019 which themselves are designed to secure the welfare of the parties’ children. As I have set out above, the respondent was vested with sole parental responsibility for decisions concerning the children’s health. A range of orders, designed to ensure that the respondent’s exercise of that parental responsibility concerning health was not thwarted by the applicant, were made. The trial judge’s reasons make clear that healthcare for the children was a significant source of conflict between the parties and their conflict about that matter was particularly detrimental to children.
The respondent’s evidence (contained in his second affidavit filed on 12 September, 2022) suggests that the applicant interfered in some way with the engagement of C and B with Ms N. The applicant denies that she did so and her evidence is that the respondent prevented her from contacting Ms N. Ms N’s “discontinuation letters” do not suggest that the applicant had threatened her as the respondent alleges. His claim that “[the applicant] (documented behaviour) threaten the psychologist causing the cancellations” is not corroborated by any evidence, when his case is that it clearly could be. The lack of corroboration is significant in those circumstances.
I referred earlier in these reasons to a contravention application commenced by the respondent that I heard and determined before the applications the subject of these reasons. In that application the respondent sought the same relief – variation of the orders that I ultimately found to have been contravened by the applicant. For the reasons that I gave in the contravention application, I declined to add to order 16 the words sought by the respondent. I see no reason in the context of the present application by him to make those orders either.
His application in a case filed on 1 August, 2022 will also be dismissed.
Disposition
Both parties’ applications will be dismissed. The respondent seeks an order that the applicant pay costs. I am presently minded to make no order as to costs as both parties were unsuccessful. Notwithstanding that, in the event that the respondent seeks to pursue his application for costs he must, within 14 days of the publication of these reasons, file written submissions in support of any application for costs. The applicant may respond to those submissions, in writing, within 14 days thereafter. In the event the parties file submissions in respect of the question of costs, I will make a determination of that issue on the basis of the submissions made by each party without further oral hearing.
I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jarrett. Associate:
Dated: 16 November 2022
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