Bond and Pearcy

[2009] FamCA 933

FAMILY COURT OF AUSTRALIA

BOND & PEARCY [2009] FamCA 933

FAMILY LAW – PRACTICE & PROCEDURE – Institution of Proceedings

Rice & Asplund (1979) FLC 90-725
Edwards & Edwards (2006) FLC 93-306
SPS & PLS (2008) FLC 93-636
Bennett (1991) FLC 92-191
Freeman (1987) FLC 91-857
King & Finneran (2001) FLC 93-079

APPLICANT: Mr Bond

RESPONDENT: Ms Pearcy

FILE NUMBER: NCC 3453 of 2007

DATE DELIVERED: 29 May 2009

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Collier J

HEARING DATE: 29 May 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Austin

SOLICITOR FOR THE APPLICANT: Bridge Street Lawyers

COUNSEL FOR THE RESPONDENT: Mr Jackson

SOLICITOR FOR THE RESPONDENT: Jarrett Webb & Graham

Orders

1. That the mother’s application for dismissal of the substantive application of the father be and is hereby dismissed.

2. That the matter proceed to be re-listed before her Honour Justice Ryan for Continuation of Trial.

3. That the legal representatives of both parties contact Justice Ryan’s Associate by close of business on Wednesday, 3 June 2009 to make arrangements for the re-listing of this matter pursuant to Order 2 herein.

4. That leave be granted to either party to make an application for costs of today’s proceedings, before her Honour Justice Ryan.  In the event her Honour declines or is otherwise unavailable to hear that costs application, leave is granted to the parties to approach Justice Collier’s Associate for the purpose of making that application.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC3453 of 2007

MR BOND

Applicant

And

MS PEARCY

Respondent

REASONS FOR JUDGMENT

Introduction

1. The issue for determination at this point of these proceedings is whether the father should be prevented from continuing proceedings for parenting orders in relation to the parties' only child, a daughter, who is nearly five.  The child lives with her mother or, in the words of the orders of 6 March 2006, resides with her mother and has contact with her father as set out in those orders.

2. The father now seeks to change those orders by, in effect, seeking the child spend equal time with each parent.

3. The wife seeks to retain the orders and to have the father's application dismissed pursuant to the line of authority which is described as the Rice v Asplund[1] line of authority.  That is, of course, a line of authority that has evolved in this Court effectively since its inception.  It is a rule that put, very simply, states that once final parenting orders have been made, whether they be made by consent or following a contested hearing, there must be demonstrated to be either a change in circumstances that has arisen since those orders were made, or there must be a fresh circumstance which requires that the matter be re-investigated.  The rule clearly does not require that a decision has to be taken, that the matter would, if reheard, produce a different result to the existing orders before it is allowed to continue in the face of an application for dismissal.  Rather, what is required is a demonstration that there now exist circumstances which require a reappraisal of the matter and the result achieved by the existing orders. 

   [1] (1979) FLC 90-725

4. These proceedings have been conducted before me as threshold issue.  Through a long line of authority, it has been established that this is an appropriate manner of dealing with such a situation.  It is, of course, not the only manner.  His Honour Warnick J in a matter which I will refer to on more than one occasion in these reasons for judgment, draws the distinction between what can be achieved when such an application is dealt with as a threshold issue rather than when it forms part of a substantive hearing.  Be that as it may, in this case the parties have clearly indicated their wish to have it conducted in this fashion, and the matter has proceeded as a threshold issue.

Background

1. A brief background to the matter is as follows: 

   ·The father was born in 1973 and the mother, in 1976. 

   ·The parties commenced a relationship in August 2002 and the child was born in July 2004. 

   ·The parties separated in August 2005 at which stage the child remained with the mother.

   ·There were then some consent orders signed respectively by the mother on 17 November and the father on 15 November 2005. 

   ·It appears that there was difficulty in obtaining a birth certificate which, of course, would have been needed to ground jurisdiction and, in the event, orders were not made in accordance with the document signed by the parties until 6 March 2006 when they were made by a registrar in chambers.  The orders specified, as I have said, that the child was to reside with the mother and have graduating contact with the father.

   ·On 24 November 2007 the father filed an application for final orders, subsequently amended by an application on 24 December 2007 and eventually by further application filed on 16 April 2008. 

2. The father's position, as I understand it, is that the parties should have equal shared parental responsibility for the child and the child should live in a week about regime with each parent. 

   ·On 25 January 2008 the wife filed a response to final orders in which she sought a dismissal of the husband's application. 

   ·On 30 January interim orders were made before a Judicial Registrar by consent. 

   ·On 24 April 2009 the matter was before Ryan J for the commencement of a less adversarial trial.  During the course of the proceeding on that day, the issue of dismissal, pursuant to Rice v Asplund[2], was agitated before her Honour.  Her Honour set the matter down before me today for the hearing which has just concluded.

   [2] Supra

The Parties’ Material

1. The material before me consisted of the documents that I identify as follows:  the wife relied upon her affidavit of 21 May 2009. 

2. The father relied upon the amended application for orders culminating his further application filed on 16 April 2008.  The father’s affidavits were those of himself filed on 8 May; an affidavit of Mrs Bond of 29 January 2008; and an affidavit of Mr C of 29 January 2008.  Mr C is the father's employer and Mrs Bond, his wife.

The Hearing before Me

1. There were also put before me transcript of proceedings before Ryan J of 20 April 2009 and before the learned Judicial Registrar of 30 January 2008. 

2. After discussion at the commencement of the proceedings concerning onus, the mother accepted that the father's material should be taken at the highest which means, so far as I am concerned, the father’s affidavits to which I have referred, stand effectively unchallenged. 

3. I received most help written submissions from counsel for each of the parties.  At the commencement of the hearing before me there was discussion and argument as to firstly who should commence.  At that stage I determined that the mother, who is the person before me seeking relief, should commence as the applicant before me.  I further determined that there was an evidentiary onus.  That onus, I am satisfied, resides with the mother to seek the relief sought, that is the dismissal of the father’s application. 

4. I heard addresses from counsel for each of the parties.  The mother, through her counsel, put to me that the orders were carefully drawn at the time they were entered into, took account of what might be seen as the usually foreseeable circumstances for the child's future and for the future of each of the parties and should not be interfered with.  Counsel indicated that the evidence did not support that at the time the father was under any disability because of substance abuse, which in any way diminished his capacity at the time he entered into those orders.  He points out that there was a period between the documents being signed and the orders being made, that gave the father some opportunity to reassess his position had he chosen to do so.  He puts the fact that the orders contained no requirement for supervision or testing on the part of the father establishes that there were no real concerns at that stage which enables the husband to say "I was bad then but I'm better now" so as to establish the change in circumstances.

5. Counsel for the wife, in his written submissions and in his oral submissions before me, deals with the issues raised by the father as to what might be called the changes in circumstances that he (the father) relies upon. 

6. These were identified in the written submissions of counsel for the father and he addressed me, as it were, in reverse order. 

7. He put to me that I would take particular notice of the fact that there were changes made to the original orders by consent when the matter was before the learned Judicial Registrar.  He asserts that the mother conceded a need for change, at least in respect of the fourth week of the cycle.  Indeed, there was also - and I am satisfied it was by consent as no challenge has been made to it - an order made that the parties have equal shared parental responsibility.  I am further satisfied that that order is an interim or interlocutory order.  To that extent there is a difficulty.  It was clearly identified by Mr Austin as what he describes as the artificiality of the situation and it is clear that if the mother's application were to succeed and the father's application for substantive relief were to be dismissed, then the parenting orders that have been made on an interim basis must fail in the absence of an application for substantive relief on foot and requiring determination.  It is put that the interim orders could not continue to exist and have effect in that situation.  To my mind there is some real significance in that but I will return to it later. 

8. In addition, it was put to me by the father's counsel that there had been some misapprehension about the earlier orders.  I am not satisfied that of itself can constitute a change of circumstances.  However, I am satisfied on the test that I have imposed (that I put the husband's material at its highest) that he asserts, and is not challenged, that the mother in a meeting before the orders were signed, let alone made, gave him an assurance that they could work something out for the fourth week.  The change may be that since that time, or until further orders were made, there was no time allowed to the father in the fourth week.  The mother does not traverse that situation in specific terms in an affidavit clearly filed as an affidavit in reply. 

9. In addition, the father relies upon what he asserts is a change of his lifestyle as well as his parenting capacity.  He says, to use his own words, his time with the mother was a dark time.  He has placed before me an affidavit by his wife which indicates that he is a man now who is not bedevilled by substance abuse.  Clearly he is also in employment.  The wife, in her affidavit, goes to pains to point out that the husband's history of employment is anything but stable and has, indeed, involved him in a number of jobs over a number of years.  It appears that the husband is no longer working in the hotel industry.  The mother certainly seemed to have indicated that there had been an assurance given by the father even before the terms were entered into that he was no longer using drugs and that clearly seems to be the situation arising from her affidavit. 

10. The last of the matters which Mr Austin identifies as being a potential change is the maturation of the child.  To my mind orders relating to children to some extent take account of that.  I will return to this later in these reasons for judgment. 

The Law to be Applied

1. The law to be applied in this situation is clearly a line of authority commencing with the decision of Rice v Asplund[3]. There have been a significant number of decisions which have dealt with this difficult aspect of the law.  In the proceedings before me today I have been referred to and had the benefit of reading the decision of the Full Court in Edwards v Edwards[4].  I have been referred to a number of other cases and particularly the decision of Warnick J in SPS v PLS[5].  Whilst the other cases to which I have been referred and, in turn, the cases to which they refer have been assistance, I say with the very greatest of respect that I find his Honour's decision of paramount assistance in this case for two reasons:  (1) his Honour is sitting as the Full Court in delivering a judgment which therefore becomes of course binding upon me and, secondly, it is a decision that was handed down after the amendments of 2006 and, indeed, in which his Honour makes reference to the effect of the coming into law of those particular amendments. 

   [3] Supra

   [4] (2006) FLC 93-306

   [5] (2008) FLC 93-363

2. There are a number of paragraphs that, to my mind, have some particular importance and I would go to those briefly.  The first of those is para 48.  In that paragraph his Honour commences by saying:

   In my view a reflection on the rules shows that what the application of the rule can achieve if dealt with as a preliminary matter is different from that which can be achieved at the end of a full hearing.

3. That is a clear distinction.  In its original formulation the rule his Honour found is directed to application as a preliminary matter.  However, in Rice v Asplund[6] the Court determined the rule could be equally applied at the end of a full custody hearing.  A number of further cases such as Bennett[7] and Freeman[8] looked at this distinction between a preliminary determination and a determination at the conclusion of a final hearing.  Not a great deal turns on that, however, it was clear that the matter came before me to be dealt with as a preliminary point and the matter has indeed been dealt with in that fashion.

   [6] Supra

   [7] (1991) FLC 92-191

   [8] (1987) FLC 91-857

4. I then turn to the judgment in SPS & PLS[9].  At para 74 of that judgment, his Honour found (in summary):

   The rule in Rice v Asplund is generally expressed as a rule to be applied as a preliminary matter and if applied in that fashion it may achieve all its purposes and if applied at the end of a full hearing cannot achieve all its ends.

   His Honour then went on in para 81 to say this:

   Thus, in my view, when the threshold question described as the rule is determined, it remains a determination on the merits.  When an application is dismissed at a preliminary stage, it is not dismissed for some technical reason such as the failure of a party to appear or lack of compliance with form and procedure but rather because, assuming the evidence of the applicant is accepted, there is insufficient change of circumstances shown to justify embarking on a hearing.

   [9] Supra

5. His Honour then at para 85 dealt with the changes that had been introduced by the Family Law (Shared Parental Responsibility) Act 2006 and made reference to the schedule which in turn made the statement that the amendments made are not to constitute changed circumstances that would justify an order to discharge or vary or suspend some other parenting order, and the note to that went onto refer specifically to Rice v Asplund. His Honour, at para 87 said that:

   Whilst it is clear that the legislative changes of themselves do not constitute a change of circumstances, a change in relevant facts may take on a significance because of the amendments that it would not have possessed before then.

6. The rule in Rice v Asplund[10] has, at various times, referred to a change in circumstances or fresh circumstances that have arisen since the making of the, what I might call, the first set of orders.  This case, as I apprehend it, has been presented by the father on the basis that there are changes in circumstances, rather than any fresh circumstance, that have arisen since the making of the orders.  I have said in my own decision of King v Finneran[11] that a change can be made by an accumulation of factors or a single significant factor.  To my mind, there has not been demonstrated any error in that statement or proposition. 

   [10] Supra

   [11] (2001) FLC 93-079

7. The husband asserts that I can, indeed, find, if necessary, more than one factor which can accumulatively take on the role of a significant change in circumstances to enable litigation to go forward.  Having said what I have already said, it is clear I agree with that proposition and I can examine the matter on the basis of paying attention to each of the matters raised and as argued for.  Firstly, I can then see if any one of those matters is sufficient to warrant a reinvestigation of the matter and here, I pause to say, that to my mind, and let there be no doubt, the test is not that there would be a change to the orders if the matter were to be re-litigated, but rather that the circumstances now indicate that a re-examination of the matter is necessary in the best interests of the subject child. 

Discussion

1. I then look to the first of the matters dealt with by Mr Austin in his address, the effect of the consent orders of the learned Judicial Registrar.  Firstly, I am satisfied that the orders of the Judicial Registrar were made by consent.  It is put to me that that may not be the case, that there was some reservation on the part of counsel for the mother that indeed the orders were by consent.  My understanding is that I must take the orders as they stand and appear, and I am satisfied that on the face of them they are consent orders which have never been the subject of any challenge or any appeal.  The effect of one of the orders is to confer equal shared parental responsibility on each of the parties. 

2. The order as I understand it is made as an interim order.  It seems to me that as a matter of operation of law, if I dismiss the father's applications then those consent orders must fall in the absence of being in anticipation of and in connection with an outstanding application before the Court. 

3. It would seem that by her consent for the orders, particularly the order for equal shared parental responsibility, the mother, at the time of entering into those orders, acknowledged that this was a proper and appropriate method of conferring responsibility for the future of their daughter between herself and the father.  Had the order for equal shared parental responsibility been made as a final order, I would be required by s 65DA to take into account and consider - "consider" being the operative word of this section - equal or significant or substantial time. Clearly that did not occur before the learned Judicial Registrar.  The consent order did not act as a trigger for further consideration of the relevant following sections of the Act.  Nonetheless, as I have said, the mother's consent and implied intention that that should be the case is a fact of real significance in this present matter.

4. There was clearly, the husband asserts, some misunderstanding about the time he was to spend with the child in the fourth week.  I have difficulty categorising this as a change in circumstances but it does appear uncontroverted that the mother made an assertion to him that they could work something out and that, again, accepting the husband's evidence at the highest, did not occur.

5. The next matter relied upon was the change in the father's lifestyle.  It appeared from the material that I have read that both parties had real difficulties with their lives at the time they were cohabiting.  The father now asserts that his position is much improved.  The mother seems to say that there were really no concerns about his conduct when the orders were made and therefore any change for the better is not a change such as to be taken into account. 

6. Clearly, the husband had made an assertion (see annexure “L” to the wife’s affidavit) that at the time the orders were being contemplated, he was not using drugs.  It would seem that prior to the execution of the terms, he was working in a hotel and it would also seem, on what I could make of it, that he had then or was about to enter into a relationship with his present wife who, as I have said, is on affidavit.  It seems to me that there has been an improvement in the husband's current situation. 

1. As to maturation of the child, so far as I am concerned, this is not a change that either, in isolation or combined with anything else, could be contemplated to be a change such as would entitle relief under Rice V Asplund[12].  Either on its own or even coupled with others, it is not sufficient.  Clearly the orders of 16 March 2006 contemplated that the child would grow older.  It is demonstrated on the face of them that the orders are made in various stages and, clearly, any order made must be founded on the basis that the child will continue to grow.

   [12] Supra

Conclusion

1. To my mind the end result then that I must determine is this:  having found myself satisfied that a change in circumstances can be made out in one of two ways, that is, by a single, significant change, or by a number of lesser changes, does the material before me enable me to be satisfied that that has in fact been achieved.  His Honour, Warnick J in a passage in SP v BLS, dealt with the requirement or the importance of change as against the setting of the bar, if I might use that expression, for determination.  His Honour clearly had a view different to the view I expressed in King v Finneran[13] and without hesitating I defer to his Honour's view.  That would mean to me that that which must be established, must be looked at in the light of the relief sought.  That which the father seeks is a very significantly different situation from that which currently exists under the orders of 16 March 2006.  The situation he now contends for is the child spend equal time with each parent.  To my mind, therefore, the change that has been demonstrated must be quite a significant one to contemplate allowing him to proceed with the application by which he seeks to bring about a substantial change to the existing situation. 

   [13] Supra

2. There are in existence the consent orders of the learned Judicial Registrar specifically the conferring of equal shared parental responsibility.  I must assume the mother could only have viewed it as appropriate and necessary to enter into those orders for the well being of the child.  At para 87 of his Honour’s judgment, to which I have already made reference, his Honour makes it clear that whilst the legislative changes of themselves are not a change in circumstances, a change in relevant facts may take on a significance because of the legislative amendments.  The change in facts, so far as I am concerned, is that the mother appears to have agreed that equal shared parental responsibility is in the best interests of this child.  To my mind, if those orders were to fall because of the dismissal of the husband's application, and there then being no ongoing application before the Court, that would bring an end to a situation that the parties considered highly desirable. 

3. It appears that the mother is in something of a cleft stick.  Were she to say, "Well, I will consent now to making that a final order," (the equal shared parental responsibility order) then, in my view, her application for dismissal must fail because there then is a requirement to give consideration to further matters, and a clear pathway established for this to be done. 

4. Clearly, the order that was entered into before the Judicial Registrar was a recognition of the amendments, and of the Family Law Act as it then stood and operated. The orders reflect the intention of the parties to be bound by and to accept the intention of the legislation. Clearly I must assume that both of them must have considered that to be in the best interests of the child at that time. As I have said to the point of boredom, if that order fails then there is a situation which is clearly not in the best interests of the child by reversion to the orders of March 2006. To my mind, that is a significant change in circumstances. I am also satisfied that there was a misunderstanding between the parties (as to the fourth week) but I am not satisfied that that, of itself, constitutes a significant change in circumstances either alone or coupled with any other factor.

5. I am satisfied that there has been a change in the husband's lifestyle for the better, although to a slight extent.  I am satisfied, as I have said, that maturation aspect need not bother me.  In a finely balanced situation I have come to the conclusion that the father has, just, established that there exist changes in respect of the parties' situation that require the matter be reheard.  I am satisfied that the circumstances are a combination of the equal shared parental responsibility consent order having been made and the father’s improvement in his present lifestyle.  I am satisfied that the situation as it exists before me today demonstrates that there is a change made up by those two factors and that that change so made out requires a further investigation of the best interests of the child and the circumstances in which she should live.

6. I am not to be seen, nor am I for one moment saying that such a re-hearing either, (a) must or, (b) will result in a change to the existing orders, although I suspect that the situation of equal shared parental responsibility may well be a very large and significant factor in relation to any further inquiry and investigation.  In the circumstances, taken together, I am satisfied that the required and requisite change of circumstances is made out and that the husband should be entitled to proceed with his application.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Collier

Associate: 

Date:  24 September 2009