Blanco and Perkins

[2013] FCCA 1095

FEDERAL CIRCUIT COURT OF AUSTRALIA

BLANCO & PERKINS [2013] FCCA 1095

Catchwords:
FAMILY LAW – Whether Rice & Asplund principle applies.

Legislation:  
Family Law Act 1975 (Cth), ss.62B, 65DA(2), 65DAA, 69ZN

Federal Circuit Court Regulations 2001 (Cth)
Federal Circuit Court Act 1999 (Cth)

Rice & Asplund (1979) FLC 9725

SPS & PLS (2008) FLC 93 363

Applicant: MS BLANCO

Respondent: MR PERKINS

File Number: DGC 4028 of 2007

Judgment of: Judge Phipps

Hearing date: 6 June 2013

Date of Last Submission: 6 June 2013

Delivered at: Morwell

Delivered on: 6 June 2013

REPRESENTATION

Counsel for the Applicant: Ms Dellidis

Solicitors for the Applicant: Wakefield & Vogrig Lawyers

Counsel for the Respondent: Mr Holmes

Solicitors for the Respondent: Tyler Tipping & Woods

ORDERS

1. The matter be fixed for Final Hearing on 29 October 2013 at 10.00am in the Federal Circuit Court of Australia at Dandenong with an estimate of 3 days.

2. The applicant do file and serve all further affidavits and other material to be relied upon by not later than 28 days prior to the trial date.

3. The respondent do file and serve all further affidavits and other material to be relied upon by not later than 14 days prior to the trial date.

4. That all parties do file and serve an Outline of Case document in an appropriate form by not later than 72 hours prior to the trial date.

5. The husband’s application for summary dismissal is dismissed.

6. The costs of today are reserved.

7. Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

8. The party responsible for the payment of any fee including a setting down or hearing fee do pay or cause to be paid such of the Fees as shall be payable by that party in accordance with, and within the time specified in, the Federal Circuit Court Regulations 2001 (Cth).

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MORWELL

DGC 4028 of 2007

MS BLANCO

Applicant

And

MR PERKINS

Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

1. The husband applies for dismissal of the application applying the Rice & Asplund principle.

2. The parties have two children, [X] born [in] 2003 and [Y] born [in] 2005.  The wife applies to discharge existing orders and have new orders made concerning the living arrangements for the children.  Current orders were made by consent on 29 February 2008.  They provide for the parents to have equal shared parental responsibility for the children and that the children live with the husband each alternate weekend from 4.30pm Friday until 6.00pm Monday, each Wednesday from 4.30pm until 9.00am Thursday with provision for holidays and special occasions. Otherwise the orders provide for the children to live with the wife.

3. Commencing 1 February 2010 until 1 February 2013, when [Y] commences Grade 2, the children live with the husband each alternate weekend from 4.30pm Thursday until 6.00pm Monday and each alternate Wednesday from 4.30pm until 6.00pm the following Thursday.  Holiday provisions and special occasions remained the same.  Otherwise the children live with the wife.

4. Commencing 1 February 2013 or when [Y] starts Grade 2, whichever is the earlier, the children live with the husband each alternate week from 4.30pm Friday until 4.30pm the following Friday and then otherwise the provisions for school holidays and special occasions remain the same. The children live with the wife in the other week from 4.30pm Friday until 4.30pm the following Friday. 

5. The wife’s application is to change the orders. She proposes orders that the children live with her and spend alternate weekends with the father.  The wife has now adopted an alternative proposal made by Ms S, a family report writer, that the children spend time with their father two weekends out of three from after school Friday to before school Monday and then in one of those three weeks, an overnight on a Wednesday.

6. The husband’s proposal is that there should be no change and he makes the application which I have already described. 

7. The brief background is that the parties commenced a relationship in November 1996.  They married [in] 2001 and separated in January 2007.  They subsequently divorced in July 2008.  Proceedings, which finished with final orders in 2008, were commenced by the husband on 2 October 2007 and progressed through various interim orders until the final orders were made by agreement. In the course of those proceedings, a report was prepared by Ms S and what the parties eventually agreed on was largely in line with the recommendations made by Ms S. 

8. Rice & Asplund (1979) FLC 9725 is a case decided by the Full Court of the Family Court of Australia.  There is an oft quoted statement by Evatt CJ in that report as follows:

   Courts should not lightly entertain an application to reverse an earlier custody order.  To do so would be to invite endless litigation for changes an ever present factor in human affairs.  Therefore the court would need to be satisfied by the applicant that there is some change in 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.

9. Many authorities have applied the Rice & Asplund principle.  Warnick J examined the authorities in SPS & PLS (2008) FLC 93 363. His Honour was there sitting as a Full Court on appeal from a Federal Magistrate. There is a two-step process in considering a Rice & Asplund principle, first a person wishing to change existing orders must show, prima facie, that there is a change of circumstances and second must show that that change of circumstances is such that the court should engage in a full hearing of the application.

10. The Rice & Asplund principle can be considered at any stage of the proceedings.  It is not necessarily something which has to take place at the very commencement. What should be taken into account can vary depending upon the stage at which the application is made.  In this case at the first court date on 19 December 2012, the parties agreed on an order that a family report be prepared by Ms S.  That was done.  On 5 March 2012 when the matter was again in court, further orders were made.

11. The matter was fixed for final hearing in the week of the circuit at Morwell with directions for that hearing. There were notes to that order that the mother intends to request a report at her expense from the professionals involved with the children, after providing them with a copy of the parties’ affidavit material filed in these proceedings, including the report of Ms S.  Those people are Dr C, paediatrician, Dr K, psychologist and Ms C, a speech pathologist. The parties ought to have also noted that the order of 29 February 2008 remained in full force and effect, which meant that from 1 February 2013, the children are spending equal time with each parent. That is continuing. 

12. The change of circumstances that the wife relies on can be put under three headings. The first is that the children have developed or been diagnosed with serious medical conditions.  The second is that the mother has moved her residence to [W] some 70 kilometres and 45 minutes drive from the father’s home in [M].  The third is that the parties’ relationship or the parties’ ability to communicate has deteriorated. At the time the orders were made, the mother was living in [omitted] only a few minutes from [M].  She then moved to [omitted] in 2008 or shortly after 2008 which is perhaps 20 minutes away.  She re-partnered some 12 or 13 months ago and subsequently moved to [W] with her new partner.  He purchased a house at [W] and she has moved in with him and wishes to pursue a life with him.

13. Her partner has an 11 year old son, who spends alternate weekends with him.  In the more recent family report of 22 February 2013, Ms S describes serious medical conditions that the children have been diagnosed with.  If I read paragraph 14:

    [X] has been diagnosed with ADHD, that is attention deficit hyperactivity disorder, by the paediatrician, Dr T, as well as language disorder diagnosed by Ms C, the speech therapist.  Also auditory processing disorder as well as having below average intelligence assessed by Mr H, psychologist on 5 June 2012.  [Y] has a congenital heart disease and she has had that from birth and she has been diagnosed with attention deficit hyperactivity disorder and was diagnosed as being of the autism spectrum disorder with reasonably serious diagnosis in November 2012 by the psychologist, Dr K, referral was from Dr T.  [Y] also has auditory processing disorder, a conduct disorder and language disorder.  Both children have aides at school.  She has regular speech therapy and both children attend the psychologist, Dr K.

14. [X] was born with a hip displacement, a physical condition that has apparently rectified itself.  The mother relies on the children being diagnosed with various serious conditions. [X] has since been diagnosed as being on the autism spectrum disorder as well. This requires regular attendance on various professionals, Dr K, the psychologist, the speech therapist and other professionals as well. 

15. The mother puts in her affidavit that she is the person who has been organising attendances, attending with the children and liaising as necessary.  It is common ground that Mr Perkins has attended many medical appointments.  He has attended at Dr T.  He has attended for the regular checks that [X] must have because of her heart disease.  He has not seen the psychologist, Dr K, who has been seeing the children since 2010. 

16. The mother puts this as a change of circumstance, because she says this involves her as the one who is principally involved in organising the children and taking them to the various professionals they have to see.  The week about arrangement makes it that much more difficult.  Whether the children had symptoms of the various problems that they have back in 2008 or a little earlier is an issue.  In 2008, when the first family report was ordered and the orders were made the children’s medical conditions seem not to be in point because they are not mentioned in the original family report apart from the hip dysplasia and the heart disease problem. 

17. The mother puts forward her move to [W] as a changed circumstance.  The mother has sworn two affidavits, 14 November 2012 and 13 May 2013.  The father has two affidavits as well. Either annexed to affidavits or tendered by agreement are reports by Dr K who is a psychologist, reports of Ms C speech pathologist, report of Ms C a psychologist, and a report of Dr T, a consultant paediatrician, and two family reports of Ms S.  Amongst the professionals there are differing views about how the children might be affected by the type of change that mother proposes.  Dr T saw the children after the mother had relocated. 

18. The children continue to attend school in [omitted].  In the week living with the mother, she does the return trip twice a day taking the children to school 45 minutes each way, three hours travelling for her each day.  Dr T says that he believes that it is likely to cause excessive physical demand on [Y].  It should be avoided if possible.  He says the relocation to a new school would only be beneficial if [Y] was going to live full-time with Ms Blanco with weekends and holiday access by her father. He refers to [Y]’s increased time with Mr Perkins since February 2013.  He says it may be very hard for her to understand intellectually and emotionally why she should have to cut back substantially.  Ms S in her recent report makes a similar remark, that both children might find it difficult if their time with their father was suddenly drastically reduced.  The other, Dr K, has a more nuanced approach, as Ms Dellidis put it, that if handled properly the children will cope with the change because if there is a change to living predominantly with their mother part of that proposal is that they would change schools to [omitted]. The mother proposes that the professionals the children see would remain the same.  She would continue to take them. 

19. The first change in circumstance that the mother refers to is the deteriorating relationship.  Ms S remarks in her first report that she sees the parties as having the ability to cooperate. In her second report she says in paragraph 72:

    There is a high level of conflict between Ms Blanco and Mr Perkins which seems to have increased in intensity over the years rather than settle down.  There is no trust.  They have not developed a parenting relationship, and are unable to communicate appropriately about [X] and [Y].

20. Ms S elaborates.  She refers to the unilateral decision by the mother to relocate with [X] and [Y] prior to the matter being heard in court which has exacerbated the conflict. Ms S is critical of Ms Blanco for relocating without notifying the father.  Ms S comments on the amount of travel which is involved and says the children probably can cope with that because many children in both city and country areas in Australia travel for 45 minutes each way to and from school and for longer.  She says it may affect their mother and that in turn would have an effect on the children.  In terms of recommendations, Ms S has two proposals.  One is to continue the shared care arrangement week-about with the mother driving their children to and from school.  The second is the least time they should be spend with their father would be two out of every three weekends from after school Friday to the start of school Monday and possibly in the third week on the Wednesday overnight.  That would be seven nights out of 21.

21. However, there is independent evidence that the parties’ ability to cooperate has deteriorated significantly.  There is now a high level of conflict between them.

22. Mr Holmes, for the father, says that the mother has brought the change of residence about unilaterally and that she should not be able to use that as a means of changing the orders.  It may be that Ms Blanco can be criticised.  The matter has to be looked at from the point of the view of the children.  It is a question of looking at the best interests of the children.  That is at the heart of the Rice & Asplund principle.  The mother has now moved. 

23. In terms of the provisions of the Family Law Act 1975 (Cth), I have to bear in mind s.69ZN which means that in determining how cases should be heard the court has to take in account the effect on the children. The children are again exposed to Family Law proceedings. They have attended for the family report and are the subject matter of Family Law proceedings. Significance in this case is the reasonable practicability provisions in s.65DAA of the Family Law Act 1975 (Cth). There is currently an order for equal shared parental responsibility. There is no proposal that that should be changed. That means that s.65DAA applies, the provision which requires the court to consider whether equal time with each parent would be in the children’s best interests and reasonably practicable. Subsection 5 of that section contains the matters the court must consider in determining what is reasonably practicable. They include how far the parents live from each other, the parents’ current and future capacity to implement an arrangement for the children spending equal time or substantial and significant time with each of the parents, the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind and the impact an arrangement of that kind would have on the child.

24. The fact is that the parents are now living a 45 minute drive apart. Of the next two, which is the parent’s current and future capacity to implement the arrangement and the parent’s current and future capacity to communicate, there is the independent expert evidence of Ms S that the capacity to do both of those things has deteriorated and deteriorated significantly. So that in terms of the reasonably practicable considerations which must be considered, there are matters of significance. 

25. I am satisfied that there is a prima facie change of circumstances for all three reasons put by the mother.  The diagnosis of the attention deficit hyper-activity disorder, speech disorders, cognitive disorders, and autism spectrum disorder have all occurred since the orders were made in 2008. The parties’ ability to communicate has deteriorated. 

26. There is a prima facie case that it has.  The husband’s response is that that is something which has come from the wife’s side, and that may be true.  Even if it is the fact, the matter is that prima facie their capacity to communicate has deteriorated. The wife has moved, and again it might be possible to say she should not have.  The fact is that she has moved.  There is prima facie a change of circumstances. 

27. Next, I have to consider whether it is such a change that there should be a full re-hearing of the whole case.  It will take perhaps three days.  It may involve all of the expert witnesses that I have referred to.  It will be a stressful and expensive matter for the parties.  I do consider that there is a potential for change.  The orders were made in December 2008, four and a half years ago.

28. The changes may mean that equal time is not something which ends in the children’s best interests.  The difference, which is proposed, is quite large.  It is not a small change.  It is quite a large change and, if it is not given a full hearing and considered, whether the current arrangement works or not and is in the children’s best interests, will not be explored. 

29. I am satisfied that there is sufficient, in what the wife has put forward, to justify a full hearing of the case.  I mention, briefly, the summary dismissal provisions of the Federal Circuit Court Act 1999 (Cth).  They say that a case can be summarily dismissed if there is no reasonable prospect of success.  What I have said shows that test is not satisfied here. 

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Phipps

Date:  16 August 2013