Brice and Brice
[2014] FamCA 1008
•20 October 2014
FAMILY COURT OF AUSTRALIA
| BRICE & BRICE | [2014] FamCA 1008 |
| FAMILY LAW – CHILDREN – With Whom a Child Lives and Spends Time – Where there are current orders in place which provide that the children live with the mother and spend time with the father – Where current orders provide that the mother have sole parental responsibility – Where father seeking to substantially change existing orders – Where father proposes the children live with him in Europe and that the children relocate to there – Where father provides for time regimes with the mother in the event she relocates as well or if she does not – Where Court considered as a preliminary matter, whether or not there was sufficient change of circumstances to justify re-litigation – Where father has resided in Europe for some three and a half years – Where Court noted the father sought to relocate to Europe with the children during proceedings of the current orders in place – Where Court not persuaded that there is sufficient change in circumstance, nor that in totality the changed circumstances in this case were sufficient to justify re-litigation and noted such would not be in the children’s best interests. |
| Family Law Act 1975 (Cth), Division 12A |
| Gotch & Gotch [2009] FamCAFC 3 Norsic & Norsic [2013] FamCA 98 Rice v Asplund (1979) FLC 90-725 |
| APPLICANT: | Mr Brice |
| RESPONDENT: | Ms Brice |
| FILE NUMBER: | CSC | 329 | of | 2007 |
| DATE DELIVERED: | 20 October 2014 |
| PLACE DELIVERED: | Cairns |
| PLACE HEARD: | Cairns |
| JUDGMENT OF: | Tree J |
| HEARING DATE: | 20 October 2014 |
REPRESENTATION
| THE APPLICANT: | In person |
| THE RESPONDENT: | In person |
Orders
The father’s initiating application filed 5 June 2014 be dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Brice & Brice has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT CAIRNS |
FILE NUMBER: CSC 329 of 2007
| Mr Brice |
Applicant
And
| Ms Brice |
Respondent
EX TEMPORE
REASONS FOR JUDGMENT
By his initiating application filed 5 June 2014, the father seeks to disturb orders which have been in place in relation to the two children the subject of these proceedings, since they were made by the then Federal Magistrates Coates on 6 July 2007. Pursuant to those orders made in July 2007, the mother was granted sole parental responsibility over the two children (C aged 14 and D aged 13) and their older brother, B, who is shortly to turn 18 years of age and is not the subject of this application. Additionally under the orders, all the children were to live with her and the father was, pursuant to order 7, permitted to spend time with the children in accordance with the detailed arrangements contained within that order. At the time of the proceedings before Coates FM (as his Honour then was) both parties were living in Australia.
By his Initiating Application filed in June, the father seeks to do substantial violence to that regime of orders; particularly he seeks that the younger two children live with him in Europe and that he be allowed to relocate with the children there. In the event that the wife does not relocate to Europe, then he proposes that there be some telephone communication, and that the children spend six weeks of holiday time, with their mother. In the event that the mother were to move to Europe, then he proposes a regime of time which would see the children spend each alternate weekend, Wednesday night and half of school holidays, with their mother.
At an early stage in this litigation, I raised with the parties whether or not there was a sufficient change of circumstance since the 2007 orders to justify the parties being permitted to re-litigate in relation to the children. In doing so, I referred the parties to an earlier decision of mine of Norsic & Norsic [2013] FamCA 98, in which decision I attempted to state the relevant authorities which bear upon the so-called rule in Rice & Asplund. In that case I said as follows:
11. It has long been recognised that the public interest is best served by finality in litigation. That is particularly so in children’s matters in this court where re-litigation between parents has been identified as rarely of benefit to the children. This rule is commonly known as the rule in Rice & Asplund. In Marsden & Winch [2009] FamCAFC 152 the Full Court of this court discussed the modern articulation of the rule largely by reference, with approval, to the earlier decision of Warnick J in SPS & PLS (2008) FLC 93-363.
12. At paragraphs [41] to [50] the court said:-
41. Warnick J in SPS & PLS (2008) FLC 93-363 said at [1]:
The “rule” in In the Marriage of Rice and Asplund…that, where there has already been a final order in respect of parenting issues, before the court embarks on a rehearing of those issues, the applicant must establish a significant change of circumstance – is certainly useful, if not essential. But it is not the primary principle in applications for parenting orders. Nor is its utility or weight uniform across cases in which it might be applied. In particular, those attributes vary, according to whether the rule is applied at the outset of or at the end of a hearing.
42. The application of the rule was again described by Warnick J in [45] – [49] inclusive. Before turning to what Warnick J said of it, it is useful to recall that Rice & Asplund involved an appeal from custody orders which reversed an order made nine months beforehand. In her reasons for judgment (at 78,905), Evatt CJ said of the position of a court confronted with an application to change an earlier order that:
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
43. Evatt CJ went on to say that the threshold question was not necessarily one for preliminary determination.
44. As Warnick J discussed, the purpose of the “rule” is to discourage “endless litigation” In addition, as Nygh J said in McEnearney (1980) FLC 90-866 at 75,499:
…the principle that there be an end to litigation has equal force in custodial disputes and in some respects may have even greater force in custodial disputes. The last thing, of course, that this court would wish to see would be a perennial football match between parents who because the strict principles of res judicata are not applicable might seek to canvass again and again the question of custody of a child with the enormous psychological harm which they would be inflicting not only upon each other but especially upon the child.
45. Warnick J opined in SPS & PLS (supra) that:
58. Another end served by the rule is that it avoids one judge substituting his or her opinion of what is in the best interests of a child for that of another judge, though both opinions are based on the same or similar facts. This "evil" is avoided by a requirement that the previous order should not be altered unless there has been a change of circumstances sufficient to justify that result.
46. Warnick J had earlier said at [48]:
In my view, reflection on the rule shows that:
(i) What the application of the rule can achieve if dealt with as a preliminary matter is different from what it can achieve if dealt with at the end of a full hearing.
(ii) In its original formulation, the rule is directed to application as a preliminary matter. Yet, contemporaneously with that formulation the court in Rice and Asplund determined that the rule could equally be applied at the end of a full custody hearing. The consequences of that determination have received little attention.
(iii) At whatever stage of a hearing the rule is applied, its application should remain merely a manifestation of the "best interests principle".
(iv) Discussion in terms that the rule may be applied as a "preliminary matter" or the primary application be first heard "on the merits" may be unhelpful, particularly because of the implication that, if the rule is applied as a preliminary matter, the parenting application is not then dealt with "on the merits".
(v) The application of the rule is closely connected with the nature of, and degree of, change sought to the earlier order.
(vi) "Shorthand" statements of the rule may contribute to its misapplication.
(vii) Any application of the rule must now measure the evidence against the principles set out in Part VII of the Act, in particular the objects of the Part, the presumption of equal shared parental responsibility and the steps required by the Act consequent upon an order made or to be made in that regard.
47. We agree with those observations. Warnick J went on to consider each of these observations, recognising (at [74]) that once a court refrains from applying the rule as a preliminary matter and embarks upon a hearing the rule should not necessarily be cast aside although its force might be diminished. Importantly, Warnick J made the point that the implication should be avoided that if the rule is applied as a preliminary matter the parenting application is not dealt with on the merits. In particular, he noted that the “paramountcy principle” still applies to the decision to dismiss an application to vary (s 60CA of the Family Law Act 1975 (Cth); see also Newling & Mole (1987) FLC 91-856; F & N (1987) FLC 91- 813; McEnearny (supra)). We agree with the conclusion reached by Warnick J (at [81]) that:
…when the threshold question described in Rice and Asplund is determined as a preliminary matter, it remains a determination “on the merits”. Where 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 some lack of compliance with form and procedure but rather because, assuming the evidence of the applicant is accepted, there is an insufficient change of circumstance shown to justify embarking on a hearing. Though sometimes unstated, the underlying conclusion will or ought be that the interests of the child in not being the subject of further litigation is more powerfully in the child’s welfare than to allow the application to continue.
48. In summary, the best interests issue arises because there are so many changes in the lives of families that the changed circumstances that will permissibly allow re-litigation of a decision must be circumscribed, otherwise there would exist in some cases the spectre of endless litigation finalising only when the child attains 18 years of age and the courts no longer have jurisdiction.
49. However, even that simple formulation must be subservient to the nature of the application itself. This is the genesis of the “rule” in Rice & Asplund and as Warnick J says it is founded on the notion that continuous litigation over the child or children is not generally in their interests. It is usually hoped that the determination of a controversy concerning children by a court will result in at least a reasonable period of stability of those arrangements and freedom from the stressful and conflictual effects of litigation on both parents and children. In addition, recent research demonstrates that conflict between parties is itself harmful to children.
50. Nevertheless, there are significant changes that occur and which do require a court to reconsider decisions previously made. 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.
13. Later at paragraphs [53] and [55] to [58], by reference to the earlier Full Court decision in Miller & Harrington (2008) (FLC 93-383) the Court continued:-
53. The Full Court then cited from the decision of Wilson FM in Cortes & Cabrera [2007] FMCAfam 293 at [19]:
…However, the court may consider that in light of the alleged changed circumstances, it was more appropriate to consider all the facts of the case before deciding whether the changes (sic) circumstances existed. An applicant’s material might disclose no change in circumstance such that the application can be summarily dismissed without a respondent being required to put on evidence. An applicant’s material might raise the suggestion that there is a changed circumstance which requires investigation but after reading the respondent’s material the court might be satisfied that there is nothing in the point raised. The court may, as a matter of discretion determine the threshold issue without testing the evidence. Alternatively there maybe contested issues of fact as to whether there are changed circumstances in which case a court may need to hear from witnesses and allow cross-examination.
55. Given that the application of the rule should always remain a manifestation of the best interests principle, we do not think that that principle can be given its full weight by restricting the application of the rule in Rice & Asplund to two choices, either application of the rule by taking the applicant’s case at its highest, or a full hearing.
56. In our view, depending upon the facts of each case, a broader range of processes should always be considered. This is because the decision is one which must be made in the best interests of the child but may also be because of the need to provide procedural fairness in the manner in which the court determines how the rule will be applied. As the Full Court in Gotch & Gotch [2009] FamCAFC 3 (Bryant CJ, Warnick & O’Ryan JJ) said at [13]:
In Miller & Harrington, the Full Court concluded that, whatever processes were appropriate in a particular case involving the application of the Rice & Asplund principle, it was essential to procedural fairness that there be a clear understanding by the parties and the court of the nature of the court’s enquiry. The Court in Miller & Harrington said, of the particular matter before it:
95. However, if the parties and Barry J assumed that the matter would be determined on the papers, taking the mother’s case at its highest, Barry J went well beyond that parameter.
96. If some other procedure was proposed, that was never made clear to or by the parties. In our view, it is not possible to say that the proceedings were conducted on a mutually understood basis and there is, as a result, merit in the submission that the mother was not accorded procedural fairness.
Discussion of Grounds 1, 3 and 6
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.
I determined that the application of the rule in Rice & Asplund in these proceedings should be dealt with as a preliminary matter for a number of reasons, including the age of the children and the fact that there has been, since 2007, some further litigation in this court in relation to the children as I will explain shortly.
The father asserts that the changes of circumstance sufficient to warrant the re-litigation of the parenting arrangements for the children are as follows. Firstly, that they have changed schools. Secondly, that their new school requires them to travel two hours of a morning and of an evening between where they live and where they go to school, and particularly he says that this would impact upon the practicability of the change-over arrangements (and indeed, the time which the children were to spend with the father) pursuant to the orders of Coates FM. Thirdly he says that the children are now seven years older than they were at the time of the 2007 orders.
He also points to the fact that he is no longer living in Australia and has been living in Europe now for some three and a half years, where he is presently in a stable relationship with a woman.
The mother opposes the father’s application and says that there has been insufficient change of circumstance to justify re-litigation. Against that background, I will consider the father’s arguments, and particularly whether or not there is a sufficient change of circumstance in the children’s and father’s lives to justify re-litigation in this case.
The first matter relied upon by the father is the fact that the children have changed school. In part, this appears to be the consequence of them changing from primary school to high school and I note that they are now attending a Catholic secondary college at Town X which is some distance from where they live in Town Y.
Of course, it must have been within the contemplation of the parties in 2007 that the children would age, and their schooling requirements would necessarily change. Whilst it is true that the children have now gone to high school, that must have been an inevitable matter within the parties’ contemplation at the time of 2007. Moreover, I note that in 2010, the father brought further proceedings in this court which were dealt with by Benjamin J in reasons delivered by his Honour on 5 November 2010, in relation to the application of Rice & Asplund to the father’s then proposals. His Honour there determined that the rule was not an “all duck or no dinner” rule, particularly in the light of Division 12A and proceeded to bifurcate his consideration between the different children in different ways.
Ultimately, his Honour was not persuaded that there was a sufficient change of circumstance to justify re-litigation of the living arrangements of the children, but permitted the father, should he so desire, to seek to litigate the balance of parenting issues in relation to the children in due course. Ultimately, for reasons which were published by Benjamin J on 2 August 2011, his Honour was of the view that he did not need to determine the matter further, as the proceedings had effectively been summarily dismissed in consequence of the father’s non-compliance with earlier procedural orders of his Honour.
Inevitably, it must have been then apparent that the children either had, or shortly would, change school. That does not appear to have been a matter that was particularly raised in relation to either children then, at least from the face of his Honour’s orders, or if it was then it was a matter which his Honour then determined.
I am not satisfied that the fact that the children have changed school is, of itself and without more, sufficient change of circumstance to justify re-litigation.
The second matter relied upon by the father is the fact that the children now have extensive travel, both morning and afternoon, to and from their school. That is not travel which existed in relation to their schooling in 2007. The father says that that is a significant change, because in the event that he were living in Australia, it would impact upon the time which he could spend with the children, particularly on the Wednesday evenings, birthday and the like times which he would be able to spend with them. Whilst that it is true, and indeed the mother concedes that if the father were living in Australia, there would need to be some renegotiation of those orders, the reality is that the father is seeking not to tinker with the orders by way of changing times and the like, but he is seeking to wholesalely overturn the orders and have the children live with him in Europe. Whilst the change in the children’s circumstance occasioned by virtue of the two hours of travel might justify re-litigation, if the scope of the dispute were simply the times that the father was spending with the children in Australia, that change of circumstance cannot be sufficient to justify re-litigation as to where the children live in the world, or indeed, as to which parent they live with, whether it be in Australia or Europe. I am therefore not persuaded, notwithstanding the mother’s concession that were the father living in Australia, there would need to be renegotiation of those orders, that this is a sufficient change of circumstance that would justify re-litigation.
The next matter relied upon by the father is the fact that the children are now seven years older than they were in 2007. In my view that, of itself and without more, is not a sufficient change of circumstance to justify re-litigation. That must have been inevitably a matter within the parties’ consideration in 2007. I am therefore not satisfied that that is a sufficient change of circumstance, nor taken cumulatively, am I satisfied that all of the three changes in the children’s circumstances are sufficient to justify re-litigation.
I then turn to the asserted change of circumstance comprising the father’s residence in Europe. As I have already indicated, he has not been resident in Australia for some three and a half years now. It appears as though he is permanently settled in Europe, and he was adamant in his submissions before me that that he will continue to reside in Europe for the foreseeable future. He says that the fact that he is now living there is a sufficient change in circumstance to justify re-litigation.
However, a consideration of the reasons given by Coates FM on 6 July 2007 makes it plain that the very proposal that was then before his Honour was that the father be allowed to relocate with the children to Europe. His Honour observed that, both in paragraph 2 and paragraph 10 of his reasons. So the fact that the father is now living in Europe is the very matter that he was seeking in front of Coates FM to be permitted to do. Therefore it cannot have then been not reasonably foreseeable to the parties that the father would live permanently in Europe. That was the very thing that he was proposing by his application then dealt with by the court. It must have been, if not the central matter in dispute between the parties, then certainly one of them. The fact that he has now unilaterally chosen to live in Europe must be viewed in the light of the fact that that was the very scope of the litigation conducted in 2007.
By the time of the further litigation before Benjamin J in 2010 and 2011, it appears as though the father had moved to live in Europe between 2007 and 2010, but had returned for some period of time to live again in Australia.
It inevitably must have been at the forefront of both parties’ minds, or at least they must have been conscious of it, that the father might again return to live in Europe. That is not a matter which any party appears to have raised with any vigour before Benjamin J, no doubt because the father was then living in Australia. However, plainly, this is not some recent event; even the father concedes that he has now been living in Europe for some three and a half years.
In the circumstances I am therefore not persuaded that the fact that the father is now permanently residing in Europe is a sufficient change in circumstance from that which prevailed in 2007 to justify re-litigation.
I have also considered whether taken in their totality, all of the changed circumstances would be sufficient to justify re-litigation. I am not persuaded that they are. Part of my reasoning for not being so persuaded is that the further re-litigation would necessarily be a dramatic event in these children’s lives. The father is proposing that arrangements which have now prevailed for some nine years, which have seen the children living in Australia under the primary care of their mother, should now be wholly reversed, seemingly because of three matters, namely, that they have changed school and have longer travel times, that they are now seven years older and the father has chosen to live in Europe.
In my view, the weighing of the consequences of permitting the parties to re-litigate in relation to the children about those changes, shows it is clearly not in the children’s best interests. This is a matter with a long and complicated litigious history. The change in circumstance which would need to be sufficient to justify further litigation of the kind now brought by the father would need to be of some moment. The circumstances relied upon by the father are not of sufficient moment.
I therefore determine that there is not sufficient change of circumstance to warrant the current further litigation between the parties in relation to the two children to be embarked upon.
I have invited the father’s submissions as to the practical consequences of my earlier decision that the change of circumstances relied upon by the father to justify re-litigation in relation to the two children the subject of these proceedings, was insufficient to satisfy the rule in Rice & Asplund.
The father submitted, in substance, that within the scope of the changes proposed in the children’s orders sought by him – namely a change of the residential parent and a change of country where they live – there would be encompassed other less dramatic options, albeit not presently sought by him.
Whilst that is perhaps so, and it is always open to the father to seek to amend the orders which he seeks by an Initiating Application, I am mindful of two things. The first is that the father did not, in fact, articulate any different arrangement which he would be contending for if the litigation were to continue. Indeed, he went so far as to say that if there were to be orders cast upon the assumption – he described it as a hypothetical assumption – that he were living in Australia, that they would be of no benefit, because he does not intend to live here. That is, of course, his prerogative.
The second matter is to be found in the orders of Benjamin J which were made on 2 August 2011 in these proceedings, or more precisely, the third notation to those orders. There, his Honour noted as follows:
It is open for the father to commence proceedings in relation to the time he spends with the children, but it is not open in respect of where the children live or parental responsibility.
The father has had the benefit of that advice now for some three years, but in the face of it, has sought to commence proceedings, not within the scope of that notation, but well outside the scope of the notation, in substance, re-litigating the very issues that were determined in 2007.
Therefore, the argument that is presented by the father, namely that there might be some form of order which he could ultimately seek in these proceedings which might not be defeated by the rule is Rice & Asplund, is not only something which he does not presently seek, but it is something which he has been on notice of now for in excess of three years.
Like Benjamin J, I should make it plain in these reasons that it would indeed remain open for the father to commence proceedings in relation to the time he spends with the children, but it is most unlikely that he would be able to withstand a further argument in relation to Rice & Asplund if those proceedings were to encompass issues of where the children live or parental responsibility. In other words, the difficulties which the present orders would give rise to, given that the father is now resident in Europe, might be able to be met by some revisitation of the time which the father is able to spend with the children in the event that he travels to Australia.
However, that is not what these proceedings seek, and moreover, the father seemed to be at pains to emphasise that he cannot any longer afford to even travel to Australia. Therefore, when one considers whether or not these proceedings should be permitted to continue on, in the hope that the father may modify the relief which he seeks to something which is of a kind that would not be defeated by the rule in Rice & Asplund on the one hand, with dismissing the proceedings with the notation that the father could commence proceedings of the kind contemplated by Benjamin J on the other hand, the fact that he has not today sought to so amend the application is a telling fact.
I emphasise there is nothing in these reasons that would prohibit him from commencing proceedings of the kind identified in the third notation of Benjamin J and nothing in these reasons should be taken as so precluding him; however, so long as the relief that the father seeks is of the kind that he presently does, in my view the only appropriate course is to dismiss the proceedings, and I therefore dismiss the father’s Initiating Application filed 5 June 2014.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 20 October 2014.
Associate:
Date: 20 October 2014
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