BIRRI & VASCO

[2018] FCCA 2484

FEDERAL CIRCUIT COURT OF AUSTRALIA

BIRRI & VASCO [2018] FCCA 2484

Catchwords:
FAMILY LAW – Parenting – consideration of the principles of Rice & Asplund.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA

Cases cited:

DL & W [2012] FamCAFC 5
Goode v Goode [2006] FamCA 1346
In the Marriage of Bennett (1990) 14 Fam LR 397
In the Marriage of Langham (1981) FLC 91-014.
In the Marriage of McEnearney [1980] FLC 90-866
In the Marriage of Rice and Asplund (1978) 6 Fam LR 570
King & Finneran [2001] FamCA 344
Marsden & Winch [2009] FamCAFC 152
Re F: Litigants in Person Guidelines (2001) FLC 93-072
Searson& Searson [2017] FamCAFC 119

Saad & Saad (1993) FLC 92-332

Applicant: MS BIRRI

Respondent: MR VASCO

File Number: MLC 8574 of 2008

Judgment of: Judge Williams

Hearing date: 13 August 2018

Date of Last Submission: 13 August 2018

Delivered at: Melbourne

Delivered on: 7 September 2018

REPRESENTATION

The Applicant appeared in person

The Respondent.	appeared in person
Counsel for the Independent Children’s Lawyer:		Mr Mark Finn

Solicitors for the Independent Children’s Lawyer: Clark Family Lawyers

ORDERS

1. The Initiating Application of the mother filed on 23 February 2018, and Amended Initiating Applications filed on 4 June 2018, 26 June 2018, 7 August 2018 and 13 August 2018 in proceeding MLC 8574 of 2008 are dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Birri & Vasco is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 8574 of 2008

MS BIRRI

Applicant

And

MR VASCO

Respondent

REASONS FOR JUDGMENT

Introduction and procedural history

1. The applicant, Ms Birri, and the respondent, Mr Vasco, are the parents of the child, [X] born 2003 (“[X]”). [X] is aged 15 years and 5 months.

2. Final parenting orders in relation to [X] were made by Judge Riethmuller on 29 November 2017. Paragraph 1 of the November 2017 orders provides that the orders of 5 October 2015, and paragraph 3 of the orders dated 13 September 2017 remain in full force and effect.

3. Additionally, paragraph 5 of the November 2017 orders provide:

   The mother spend time with the child at such times as agreed between the child and the mother.

4. In summary, the orders made by Judge Small by consent on 5 October 2015 provide that:

   a)the father have sole parental responsibility for educational decisions pertaining to [X], and otherwise, the parents have joint parental responsibility;

   b)[X] live with the father, and spend each alternate weekend with the mother, and limited special occasions;

   c)specified changeover venue;

   d)telephone time for each parent;

   e)notification by each parent to the other of:

   i)any urgent medical attention required by [X];

   ii)the child’s treating medical practitioners.

   f)mutual restraints on the parties as follows:

   i)discussing the proceedings, parenting issues or disputes in the presence of the child;

   ii)denigrating the other parent;

   iii)passing messages through the child;

   iv)unreasonably questioning the child about the other parent or the other parent’s household.

5. The parents have been involved in litigation about [X] since 2005. The parties separated on 29 April 2005, when [X] was just over two years old.

6. The various proceedings may be summarised as follows:

   a)on 16 May 2008, his Honour Cronin J made final orders providing for:

   i)equal shared parental responsibility;

   ii)[X] to live with the mother;

   iii)[X] to spend time with the father each alternate weekend, for a meal each Wednesday, special occasions and half school holidays;

   b)on 18 September 2008, the father filed an Application for Contravention arising from the mother’s alleged failure to comply with orders of Cronin J made 16 May 2008. The contravention application was subsequently discontinued on 23 October 2008;

   c)in 2008 or 2009, the Department of Human Services filed a protection application in the Children’s Court, as the mother alleged that the father had physically and sexually abused [X];

   d)on 12 September 2011, Magistrate Levine of the Children’s Court placed [X] in the care of the father. He has remained living with the father since that time;

   e)between September 2011 and July 2013, the protection proceedings continued in the Children’s Court;

   f)on 14 June 2013, the father issued an Initiating Application in this Court, seeking orders that [X] live with him and spend time with the mother. That application was finalised by the final orders of Judge Small of 5 October 2015;

   g)on 8 July 2017, the mother filed a Contravention Application. That application was finalised by the orders of Judge Riethmuller made by consent on 29 November 2017;

   h)on 23 February 2018, the mother filed an Initiating Application seeking a change of [X]’s residence;

   i)on 9 July 2018, the mother filed a further Contravention Application. That application was withdrawn by her on 30 July 2018;

   j)on 26 June 2018, 7 August 2018 and 13 August 2018, the mother filed Amended Initiating Applications.

7. During the Children’s Court proceedings and the proceedings in this Court, [X] has been assessed by numerous professionals.

8. The application of the mother filed on 23 February 2018 was listed before me on 18 April 2018. On that date, I made orders appointing an Independent Children’s Lawyer and for the parties and [X] to attend an assessment pursuant to s.11F of the Family Law Act 1975 (Cth).

9. On 19 April 2018, the matter was listed before me for the oral report of the family consultant. I ordered a transcript of the evidence of the family consultant, and the matter was otherwise adjourned to 6 June 2018 before Judge Riethmuller.

10. On 6 June 2018, orders were made by his Honour adjourning the matter to 13 August 2018 for argument of the issue of Rice & Asplund.

11. The notation to the June 2018 orders is as follows:

    The parties are referred to the decisions of the Family Court in Rice and Asplund [1978] FamCA 84; SPS and PLS [2008] FamCAFC 16; and Kulat & Azzarudin [2018] FamCAFC 97, all of which are available for download from without payment of any fees or charges.

12. The father and the Independent Children’s Lawyer sought that the mother’s application should be dismissed under what is commonly referred to as the principle in In the Marriage of Rice and Asplund[1] (“Rice & Asplund”).

    [1] In the Marriage of Rice and Asplund (1978) 6 Fam LR 570.

13. On 13 August 2018, both the mother and the father were self-represented. The Independent Children’s Lawyer, Mr Finn, appeared. Prior to the commencement of submissions, the mother sought and was granted a brief adjournment to enable her to obtain legal advice from the duty lawyer. She obtained that advice prior to commencement of submissions. Both parties were advised by me that the matter would proceed as a threshold issue by submissions, and that there would be no cross-examination. I also advised the mother and the father of requisite matters relating to submissions, in accordance with the guidelines referred to in Re F: Litigants in Person Guidelines (2001) FLC 93-072.

The Applicable Law

Rice & Asplund

1. In Rice & Asplund, the judgment which gives rise to the often-quoted principle, the mother sought to revisit parenting orders nine months after final parenting orders were made. The trial judge allowed the mother’s application, and varied the previous orders. However, on appeal, the Full Court of the Family Court of Australia, at 572, said:

   The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for, …change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that, …there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material…

2. As has been noted, it is normal to expect some change in circumstances following a contested hearing, and with the expiration of time. However, should it eventuate that at the time of the hearing there existed a factor which was not disclosed, which would have been material, then a further hearing may be warranted.[2]

   [2] In the Marriage of Langham (1981) FLC 91-014.

3. In King & Finneran [2001] FamCA 344 (“King & Finneran”), Collier J considered the rationale of the principle as follows (at [41], [44], [49]):

   41.    The rule in Rice v Asplund is a rule evolved to protect children from involvement in further unnecessary litigation.  To require a court to make a detailed determination of the matters set out in section 68F would defeat the purpose of that protection…

   …

   44.    To apply the test in Rice v Asplund is to make an assessment on the material then available to the court as to whether or not the matters raised in that material make it necessary or proper in the best interests of the children, the subject of litigation, to allow further proceedings…

   …

   49.    …To be either significant or substantial is to indicate that a matter is of importance, of consequence, of real worth, of ample or considerable amount, quantity, size etc.  When related to a change in circumstances, this clearly requires that the change or changes relied upon must be of consequence and must be more than that which would occur by the passage of time or in the usual course of human activity.

4. The public policy aspect was further noted by Nygh J, in the decision In the Marriage of McEnearney [1980] FLC 90-866.

5. The Full Court in Marsden & Winch [2009] FamCAFC 152 (“Marsden & Winch”) stated, at [50]:

   50. …Whether 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 significant way, as a result of a new hearing.

   (3)     If there is 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.

6. The application of the rule involves a two-step process. The Full Court in Marsden & Winch at [58] described a two-step process to be followed:

   58.    …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.

7. The dual considerations of the rule were further developed by the Full Court in DL & W [2012] FamCAFC 5 (“DL & W”). Their Honours considered an appeal from a Federal Magistrate at first instance, dismissing a father’s application to re-litigate parenting matters where the Court found significant changes in circumstances, but on consideration of the potential costs and benefits to the child from a new trial, dismissed the application.

8. In determining the second step of the process, the Court is not required to follow the legislative pathway of Goode v Goode [2006] FamCA 1346, nor is it required to undertake an assessment of all of the s.60CC factors. The Full Court in DL & W at [77] adopted the view of Collier J in King & Finnernan, that to require the Court to do so would defeat the entire purpose of the rule in Rice & Asplund.

9. The principle was again the subject of consideration by the Full Court in Searson& Searson [2017] FamCAFC 119 (“Searson”). At [27] of Searson, the Full Court provided guidance how to determine whether a prima facie case of changed circumstances is established:

   27.    The evidence before the court at the time the orders were made and, axiomatically, the evidence upon which those orders were founded needs to be compared and contrasted with the evidence before her Honour in respect of the central issue which confronted her.

The Independent Children’s Lawyer’s submissions

1. I will firstly address the submissions of the Independent Children’s Lawyer in relation to Rice & Asplund. As both parties were self-represented, I considered it would assist them if they were able to hear the submissions of the Independent Children’s Lawyer prior to making their own submissions.

2. The Independent Children’s Lawyer submitted:

   a)the “rule” in Rice & Asplund required the Court to be satisfied as to a substantial and significant change of circumstances prior to permitting the parties to embark on re-litigating parenting issues;

   b)the “rule” was to ensure that children were not continually exposed to litigation;

   c)the mother had failed to establish a prime facie case of a substantial change of circumstances since the making of the last final orders in November 2017;

   d)the mother’s assertions in support of her application were not factually based, and in any event, did not constitute a significant change in circumstances. Her assertions could be summarised as follows:

   i)[X] had engaged in self harming and self-mutilation;

   ii)the father had continually been non-compliant with orders for the child to spend time with her;

   iii)the father had breached the orders for equal shared parental responsibility, including relocation of the child’s residence from Suburb A to Town B;

   iv)the father was emotionally manipulative towards the child.

3. I will address each of the assertions individually.

[X] engaged in self-harm and self-mutilation

1. The mother asserted in Court on 6 June 2018 that [X] had engaged in self-harming behaviour. She alleged that [X] had been biting his knuckles, and cutting himself around his ankles.

2. The Independent Children’s Lawyer met with [X] fairly recently, and advised that [X] denied any such behaviour, and indeed attempted to demonstrate to Mr Finn that he had no scars on either his legs or arms, and that he was concerned as to why his mother would make such allegations.

3. The s.11F assessment prepared on 19 April 2018 also refers to the mother’s allegations that [X] engages in self-harming behaviours, and that his medical needs are being neglected.

4. The assessment refers to [X] continuing to do well at school and being well supported, which was consistent with [X]’s self-reports. There were no concerns raised by the family consultant in this regard.

Continual non-compliance with orders for [X] to spend time with the mother

1. The mother continues to assert that the father does not comply with orders for her to spend time with [X]. However, she does not seem to understand that paragraph 5 of the orders of 29 November 2017 provide for [X]’s time with the mother to be as agreed between the two of them.

Breach of orders for equal shared parental responsibility

1. The mother asserts that the father has breached the orders for equal shared parental responsibility. She alleges that the father relocated [X] from Suburb A to Town B, in December 2017, without her knowledge or consent. Furthermore he did not advise her of the move, and she did not find out [X]’s new address until during the course of the proceedings.

2. The Independent Children’s Lawyer submitted that if there had been a breach of an order for equal shared parental responsibility, then that of itself would not satisfy the legal threshold for a change of circumstances.

The father’s emotional manipulation of the child

1. The mother asserts that the father has engaged in continual emotional manipulation of [X], and has effectively prevented the relationship between [X] and the mother.

2. The Independent Children’s Lawyer’s observations in relation to his meeting with [X] were as follows:

   a)[X] was exceptionally bright, talented and articulate;

   b)he excelled maths;

   c)excelled at music;

   d)was a high academic achiever.

3. [X]’s perspective was that he did not miss his old school, except for the opportunity to build robotics. He was otherwise happy at school, had made new friends, enjoyed music, and having his family around him in his home in Town B.

4. [X] articulated his sadness at the prospect of further litigation, and was aware that the mother had recently initiated proceedings. He was aware that litigation had continued most of his life, and he did not want it to continue. He loves his mother, and wanted to see her in accordance with the current orders.

The mother’s submissions

1. The mother relied on her affidavit filed on 7 August 2018 in support of her opposition to the rule in Rice & Asplund. Much of that affidavit referred to historical matters, and many of the earlier proceedings.

2. Paragraph 13 of her affidavit sets out the alleged change in circumstances which would warrant embarking on a further litigious path. However, at [14], the mother acknowledges that most of the evidence regarding [X]’s medical treatment referrals and decline in school dates predate the current final orders, however, she was not aware of those circumstances as at November 2017.

3. The matters warranting further litigation are as follows:

   a)the father’s unilateral relocation from Suburb A to Town B (Town B), and removal from his then school;

   b)the father’s knowledge that due to his working hours, it would be impossible to comply with the current orders, as there is no public transport in Town B to enable [X] to travel independently to Melbourne to see the mother;

   c)previous contraventions of existing orders;

   d)concerns that the father has denigrated the mother to [X]’s teachers;

   e)her concerns that the father has failed to follow up referrals to eadspace and Victims of Crime counselling, despite the orders of 29 November 2017;

   f)the medical assessment and report for [X] was not provided in a timely manner, in compliance with the orders of 19 April 2018;

   g)the decline in [X]’s academic performance since changing schools.

4. I will address each complaint of the mother.

Complaints which existed prior to November 2017 orders of which the mother was unaware

1. The mother submitted a number of issues which existed prior to the November 2017 orders, however at the time of making the order she was unaware of them, as follows:

   a)in September or October 2016, the school had referred [X] for counselling at either Headspace or Victims of Crime. She referred to paragraph 33, and Annexures B-3 and B-4 to her affidavit filed on 7 August 2018. Paragraph 33 alleges that the father did not allow [X] to attend any such counselling. Annexure B-3 is a student chronicle report from [X]’s previous school, dated 7 September 2016. Annexure B-4 is a student chronicle report from [X]’s previous school, dated 17 October 2016. Both annexures refer to [X]’s problems with writing, which the father attributes to [X] having written so many statements about the mother’s allegations of abuse. This had resulted in psychological damage, restricting his ability to use a pen to write. The document demonstrates that [X]’s teacher suggested at a parent teacher night that [X] obtain support for his writing problems, allegedly caused by the mother, and that the school psychologist had recommended a follow-up with either Victims of Crime or Headspace;

   b)paragraph 37 of the mother’s affidavit of 7 August 2018 refers to a decline in [X]’s academic performance and schooling, which the mother asserts she did not know about as at November 2017. She asserts that [X] had previously been an exceptionally high achiever at his previous school, however, he is now repeating year eight at his new school;

   c)during her oral submissions, the mother submitted that [X] had been self-harming and bedwetting, and that this has been occurring since June 2017. It was not clear from her submissions whether she was aware of this alleged issue as at November 2017.

Issues which have arisen subsequent to November 2017 orders

1. In December 2017, the father unilaterally relocated [X]’s home from Suburb A to Town B without her knowledge or consent. This also involved a change of schools for [X]. There is no public transport in Town B, and the change of residence would inhibit and frustrate the mother’s time with [X].

2. The mother asserts that she was aware of the father’s a breach of orders prior to the proceedings in November 2017, however his breaches have been ongoing subsequent to those orders. From her perspective, that resulted in her filing a Contravention Application.

3. The mother also asserts that [X] wishes to have a relationship with her, but that is being frustrated by the father. It is apparent from the documents before the Court that allegation has previously been made by the mother.

The father’s submissions

1. The tenor of the father’s submissions was that [X] had been the subject of litigation for, effectively, all of his life. The litigation had commenced when he was two years old, and he was and remains aware and involved in the protracted court proceedings.

2. [X] is an exceptionally talented child, who is doing well, and he simply does not want to be involved in further court proceedings.

3. [X] loves his mother and wants to have a relationship with her however on his terms. The father wants to protect [X] from any further court proceedings, which would no doubt involve further interviews and assessments by professionals.

4. Involving [X] in further court proceedings against his will at the age of 15 ½ years would be contrary to his best interests.

Discussion and conclusion

1. As correctly identified by the Independent Children’s Lawyer, the starting point in such applications is for the applicant to establish a prima facie case of change.

2. The reasons offered by the mother do not, in my view, satisfy the requirement for significant or substantial changes, and may be regarded as changes “…which would occur by the passage of time or in the usual course of human activity” as referred to by Collier J in King & Finneran (supra).

3. Many of the mother’s reasons have been a constant theme in the dynamic between the parties, including allegations of parental neglect, medical problems allegedly suffered by [X], and non-compliance with orders by both parents, which has resulted in a plethora of contravention applications, commencing in 2008, and continuing to July 2018.

4. From the mother’s perspective, she is unlikely to ever concede that [X] is happy in the father’s care, and does not suffer, to any significant degree, from the medical problems that she alleges.

5. In my view, the mother does not identify in her material any prima facie change of circumstances, other than the relocation of [X]’s home to Town B. However, as the orders of November 2017 specify that [X]’s time with the mother is as agreed between them, the previous orders made in October 2015 (which provide for alternate weekends), are subject to agreement with [X]. She is unable to refer to any other specific change in circumstances which have arisen since the making of the November 2017 orders, which warrants embarking on further litigation to reassess [X]’s living arrangements.

6. If I am mistaken in my assessment that there are no significant changes in circumstances, in my view, re-opening further litigation to investigate [X]’s living arrangements is not in his best interests.

7. [X] is presently aged 15 ½ years. It is highly likely that a trial would not be able to be allocated until September / October 2019, when [X] would be 16 ½ years old. A decision may not be made for a number of months after the completion of proceedings. It is almost inconceivable that final orders would be made pertaining to a soon-to-be 17-year-old, expressing strong views about his living arrangements, to provide for a change of residence. [X] needs time in his life that is free of involvement in and the constraints of litigation between his parents. It is remarkable that he has achieved so much to-date, given the litigation which has hung over his head since he was two years old.

8. The s.11F assessment conducted on 19 April 2018 refers to [X]’s attitude towards further litigation. He reported to the family consultant the following:

   [X] presented as articulate, intelligent and frank. He advised that he likes Town B and stated 3 times that he feels “betrayed” by his mother. [X] reported that he “specifically” told his mother not to take matters back to court again however she did.  He stated “this is like the 4^th time. I wanted to be at school today so I’m annoyed.”

9. I cannot contemplate that any further litigation would be in [X]’s best interests, and may well place his relationship with the mother at a severe risk. The mother admitted during the course of her submissions that further litigation will be damaging for her son. However, notwithstanding such comments, she is urging the Court to embark upon litigation. That demonstrates a remarkable lack of insight into her son’s needs, and what is in his best interests.

10. I intend to make orders dismissing the Initiating Application of the mother filed 23 February 2018, and all subsequent Amended Applications.

11. The Independent Children’s Lawyer urged me to impose restrictions on the mother from filing further applications. As the mother is a self-represented litigant, I do not consider it appropriate to make orders imposing such restrictions at this stage. However, if the mother issues proceedings in the near future, she may well face restrictions such as obtaining a psychiatric report from Dr A, who previously conducted a psychiatric assessment in the proceedings, prior to issuing proceedings. She may also face cost applications from both the father and Independent Children’s Lawyer. The mother is on notice.

I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Judge Williams

Date: 7 September 2018