Brooks & Brooks - [2022] FedCFamC2F 751

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Brooks & Brooks [2022] FedCFamC2F 751

File number(s): CAC 1302 of 2021

Judgment of: JUDGE W J NEVILLE

Date of judgment: 5 May 2022

Catchwords: FAMILY LAW – Parenting – Application to re-open proceedings following final consent Orders being made in 2018 – Consideration of Rice v Asplund principles – no sufficient change in circumstances to qualify re-opening proceedings – re-commencing litigation not in the best interests of the children – Application dismissed with an Order for costs in favour of the Mother

Legislation:
Family Law Act1975 (Cth), s 117

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), Rules 1.31, 5.08

Cases cited:
Carriel v Lendrum (2015) 53 Fam LR 157

CDW v LVE [2015] WASCA 247

In the Marriage of F and N (1987) FLC ¶91-813

In the Marriage of McEnearney [1980] FamCA 43

King & Finneran [2001] FLC 93-079

Mahoney & Dietrich (2020) FLC 93-955

Marsden v Winch (2010) 42 Fam LR 1

Miller v Harrington (2008) 220 FLR 300; (2009) 39 Fam LR 654

O’Brien & O’Brien [2017] FamCAFC 219

Phillips v Hansford (No.2) (2020) 60 Fam LR 160

Poisat & Poisat (2014) FLC 93-597

Rice & Asplund (1978) 6 Fam LR 570; (1979) FLC ¶90-725

Searson & Searson [2017] FamCAFC 119

Shan & Prasad (2020) 61 Fam LR 440

SPS & PLS (2008) 217 FLR 164; (2008) FLC ¶93–363; (2009) 39 Fam LR 295

Swenson & Brantley (No.2) [2020] FamCAFC 205

Walter & Walter [2016] FamCAFC 56

Spencer Bower & Handley: Res Judicata 5^th edition (London: LexisNexis, 2019)

Division: Division 2 Family Law

Number of paragraphs: 49

Date of hearing In Chambers on the papers

Date of last submission/s: 19 April 2022

Place: Canberra

Counsel for the Applicant Mr J Haddock

Lawyer for the Applicant KJB Law

Counsel for the Respondent Mr G Howard

Lawyer for the Respondent Parker Coles Curtis

ORDERS

CAC 1302 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN: MR BROOKS
Applicant

AND: MS BROOKS
Respondent

ORDER MADE BY:

JUDGE W J NEVILLE

DATE OF ORDER:

5 MAY 2022

ON A FINAL BASIS, THE COURT ORDERS THAT:
1.X (born in 2004) spend time with her Father in accordance with her wishes.
2.The Father’s Application, filed 20 June 2021, otherwise be dismissed.
3.Within 60 days of the date of these Orders, being by 4 July 2022, the Father pay the Mother’s costs, either as agreed or taxed.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Brooks & Brooks has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE W J NEVILLE
Introduction

The following reasons, which were delivered orally, have been revised from the transcript.
In December 2018, the parties entered into final Consent Orders, which the Court duly made. Among other things, those Orders provided for those children of the relationship who had not attained their majority, upon reaching the age of 13 years, to spend time with each parent in accordance with their wishes.
By an Application, filed 20^th June 2021, the Father seeks to re-visit the 2018 Final Consent Orders. The Mother resists that course. For the reasons that follow, the Father’s Application must be dismissed with costs because it does not even approach, let alone get over, the relevant standard of there being a significant change in circumstances to warrant the parenting Orders being re-considered by the Court. Indeed, on the Father’s own evidence, there is no change in circumstances, and the only child of the relationship for whom the Court may properly have regard because of her age – 11 year old Y – has a good relationship with the Father.
Orders sought by the Applicant
The Applicant’s Final Orders sought were contained in the Application for Final Orders filed on 20^th June 2021 and were as follows (emphasis in original):
1.That Orders 18 to 39 of the Consent Orders of 10 December 2018 shall be discharged.
2.That the parties shall have equal shared parental responsibility for the children X born in 2004 (“X”) and Y born in 2011 (“Y”) (herein after referred to collectively as “the children”).
X
3.That unless otherwise agreed between the parties in writing, X shall live and spend time with the parties according to her wishes, except:
3.1That the parties shall ensure that X spends time with the Father on at least one occasion per week for at least four hours, with such time to be nominated by X and failing X nominating a time, X shall spend time with the Father from 3:15pm to 7:15pm each Friday evening; and
3.2On special occasions, X's time with the parties shall be as outlined in Order 7 below.
4.That the parties shall do all things necessary to ensure that X attends upon Family Counselling with the Father and for those purposes:
4.1 The Counsellor to be appointed shall be agreed between the parties and failing agreement, the Counsellor shall be nominated by the Father;
4.2 Counselling shall be at such frequency and for such duration as determined by the Counsellor;
4.3 The parties shall share equally in the cost of such counselling; and
4.4 Any time spent between X and the Father for the purposes of Family Counselling will be in the addition to the time X spends with the Father pursuant to Order 3 above.
Y
5.That unless otherwise agreed between the parties in writing, Y shall live with the Mother and the Father on a week about basis with handover to take place at the conclusion of school (or 3:15pm on a non-school day) each Friday.
6.That the parties shall ensure that Y is attending upon a Psychologist for the purpose of mental health treatment and for those purposes, the Psychologist to be appointed shall be as agreed between the parties and that:
6.1 Failing agreement as to the Psychologist to be appointed:
6.1.1The Father shall provide to the Mother in writing the names of three proposed Psychologists;
6.1.2 Within seven days of receipt of the list of names provided by the Father pursuant to Order 6.1.1 above, the Mother shall choose from that list of names the Psychologist to be appointed and shall notify the Father in writing;
6.2 The parties shall share equally in the cost of such treatment; and
6.3 The parties shall ensure that Y is receiving treatment and/or medication in accordance with the reasonable recommendations of the Psychologist.
Special Occasion Time
7.That regardless of Orders 3 and 5 above and unless otherwise agreed between the parties in writing, the children shall spend time with the parties for special occasions as follows:
7.1 For Father's Day, if the children are not already spending time with the Father, the children shall spend time with the Father as agreed but failing agreement from 9.00am to 5.00pm on Father's Day;
7.2 For Mother's Day, if the children are not already spending time with the Mother, the children shall spend time with the Mother as agreed but failing agreement from 9.00am to 5.00pm on Mother's Day.
7.3For each of the children's birthdays each year, the children shall spend time with the Mother and the Father as agreed but failing agreement, as follows:
7.3.1Should the child's birthday fall on a school day, the children shall spend time with the parent that does not have care of the children that night from 3.15pm after school until 7.00pm; and
7.3.2Should the child's birthday fall on a non-school day, the children shall spend time with the parent that does not have care of the children that night from 9.00am to 12.00pm.
7.4For the Father's birthday each year, if the children are not already spending time with the Father, the children shall spend time with the Father as follows:
7.4.1Should the Father's birthday fall on a school day, the children shall spend time with the Father from 3:15pm after school to 7:00pm; and
7.4.2Should the Father’s birthday fall on a non-school day, the children shall spend time with the Father from 9:00am to 5:00pm.
7.5 For the Mother's birthday each year, if the children are not already spending time with the Mother, the children shall spend time with the Mother as follows:
7.5.1Should the Mother's birthday fall on a school day, the children shall spend time with the Mother from 3:15pm after school to 7:00pm; and
7.5.2Should the Mother's birthday fall on a non-school day, the children shall spend time with the Mother from 9:00am to 5:00pm with the Mother.
7.6 For the Paternal Grandfather's birthday each year the children shall spend time in the Father's care on the Saturday closest to the Paternal Grandfather's birthday from 12:00pm until 2:00pm.
7.7For Christmas in each year ending in an odd number:
7.7.1The children shall spend time with the Mother from 4:00pm until 7:00pm Christmas Eve; and
7.7.2The children shall spend time with the Father from 7:00pm Christmas Eve until 9:00am on Boxing Day.
7.8For Christmas in each year ending in an even number or zero:
7.8.1The children shall spend time with the Father from 4:00pm until 7:00pm Christmas Eve; and
7.8.2The children shall spend time with the Mother from 7:00pm Christmas Eve until 9:00am on Boxing Day.
Changeovers
8.That changeovers shall, unless otherwise agreed in writing, occur at the children's school where possible or if the children are not at school at the time, then changeovers shall take place at the McDonalds carpark in Suburb C, ACT.
Makeup time
9.Unless otherwise agreed between the parties in writing, where the parties agree to vary arrangements for the children, make up time must be provided to the parent whose time is affected, with such time to take place at a time and on a day to be nominated by the affected parent.
10.For the purposes of Order 9 above, the affected parent shall not require make up time to take place over any special occasion affecting the other parent except as agreed in writing between the parties.
Telephone/electronic contact
11.That the children shall have telephone or other electronic means of contact with the parent who does not have care of the children at least once per week at times to be agreed and failing agreement, at 5:00pm each Wednesday and at other times as requested by the children.
12.That for the purposes of the contact scheduled to take place pursuant to Order 11 above, such contact shall take place by way of the non-resident parent calling the telephone of the resident parent and the resident parent shall:
12.1Ensure that the children are free to speak to the other parent at that time; and
12.2Ensure their mobile telephone is free, turned on, adequately charged, within mobile reception and available to the children at the scheduled time.
Travel and passport
13.That neither parent shall travel with the children, or otherwise permit the children to travel, outside of the Canberra/City D region for more than 24 hours without the express written consent of the other party and if such travel is agreed, the travelling parent shall provide the other parent with information of where the children will be staying and a contact number if different from the travelling parent's usual telephone number no less than 24 hours prior to the intended time of departure.
14.That unless otherwise agreed, each parent shall be permitted to travel overseas with the children for the purposes of a holiday during their time with the children pursuant to these Orders, provided that they ensure the safe return of the children and provided that no later than 21 days before the intended departure date, the travelling parent shall provide the other parent with:
14.1A detailed itinerary including dates of travel;
14.2Flight/ship numbers;
14.3Intended destinations;
14.4Addresses where the children will be staying; and
14.5Means of contacting the children during the travel period.
15. That the parties shall sign an Australian Passport Application including a Passport Renewal Application for the children, within 7 days of a written request from the other parent to do so.
16. In the event either parent refuses to sign the Passport Application Application for the children, then the Registrar of the Family Court of authorised to sign the children's Passport Application and Passport Renewal Application and any supporting documentation necessary to allow the children to travel overseas.
Other
17.That unless in case of emergency (at which time phone calls and text messages are permitted) the parties shall communicate by way of email in relation to the children and the parties shall ensure that communication is responded to within 24 hours of receipt UPON NOTING THAT the Father's email address is … com.
18.That the parties shall not abuse, insult, denigrate or criticise the other parent or the other parent's family in the presence or hearing range of the children nor allow another person to do so in the presence or hearing range of the children AND THAT if the children are exposed to such communication or comments while in either party's care, the caring parent shall immediately remove the children from the presence or hearing of those communications or comments.
19.That the parties shall encourage and not undermine each child's relationship with the other party and are restrained from discouraging the children to spend time with the other parent, or otherwise negatively impacting the children's willingness to spend time with the other parent.
20.That the parents are restrained from being at the children's school except for the purpose of attending events to which parents are normally invited.
21. That each party shall advise the other parent of any change to their address, telephone number, email address and other contact details within 48 hours of such change.
22.The parties shall advise each other as soon as possible by the best available means in the event of the following occurring:
22.1The children being injured or falling seriously ill;
22.2The children requiring urgent medical treatment by a doctor or ambulance crew; or
22.3The children being admitted to hospital.
23.That in the event the parties take one or both of the children to a medical or health appointment, within 24 hours following the appointment taking place, the party that has taken the child or children to the appointment shall notify the other party if the outcome of the appointment, shall provide details of any formal feedback received and shall permit the other parent to liaise with the professional consulting with the child or children.
24.The parties are at liberty to obtain all medical records and to consult with the children’s medical, dental practitioners, psychologists, counsellors and any other treating professionals to obtain any information he or she may require and service of a sealed copy of these Orders upon such medical or dental practitioners is sufficient authority for that purpose.
25. The parties are permitted to attend any school attended by the children at any reasonable time and to attend any school event occasion which parents are invited to.
26. That in the event either parent receives correspondence from either of the children's schools relating directly to the children or any health professional consulting with the children, they shall provide a copy of that correspondence to the other parent within 24 hours of receipt.
27. The parties shall authorise in writing the principal or alike at the school attended by the children to supply both parties with copies of school reports, progress reports, notices relating to pupils attending the school, school letters, invitations to events and carnivals, sporting or social functions, notices of and any invitations to parent teacher interviews and any other notices directed to the parents of a child attending such school and service of sealed copy of these Orders will be sufficient to discharge this Order.
28. That the parties are each restrained from attending the other parent's home except with the express written consent of the other parent.
29.In the event of any dispute as to the interpretation, implementation or enforcement of this Order (including any claim by a party that it should be varied), the parties shall first attend Family Dispute Resolution (FDR) with an FDR practitioner appointed by the parties and make a genuine attempt to resolve the dispute.
30.That the Mother shall be restrained from:
30.1Co-sleeping with either of the children.
30.2Discussing these proceedings with, or in the presence of, the children; and
30.3Changing the children's school without the express written consent of the Father.
31.That within seven days of the date of these Orders, the Mother shall ensure that the Father's details are given to the children's schools as the second parent AND THAT both parties shall forthwith ensure that both parents' names are included on future enrolment and contact forms for the purposes of the children's schools, medical practitioners, allied health practitioners and any other professional or organisation with which the children are involved.
32.That the Respondent Mother shall pay the Applicant Father's costs of and incidental to this Application on an indemnity basis or as otherwise Ordered.
Orders sought by the Respondent
The Respondent’s Final Orders sought were contained in the Amended Response to Final Orders filed on 16^th March 2022 and were as follows (emphasis in original; colour text omitted):
That the Initiating Application filed by the Applicant father on 20 June 2021 be dismissed and the Applicant father pay the Respondent mother's costs on an indemnity basis.
1.~~General~~
~~That orders 22 to 24 of the Orders made by consent on 10 December 2018 be discharged.~~
Y
2.~~That Y, born in 2011 (“Y”), lives with the Mother and spends time with the Father, as per her wishes.~~
3.~~That the Mother makes her best endeavours to encourage Y to spend time with the Father.~~
X
4.~~That X, born in 2004 (”X”) lives with the mother and spends time with the Father, as per her wishes.~~
5.~~That the Mother makes her best endeavours to encourage X to spend time with the Father.~~
Report of Ms E
Family Consultant Ms E prepared a Child Inclusive Report, dated 22^nd November 2021. It should be taken to be admitted into evidence. In my view, the sections of this Report most relevant to the current Application, by virtue of the ages of the girls interviewed, were as follows (emphasis added):
X AND Y
31. X was interviewed on her own by video at her mother’s home. Y was mainly interviewed on her own at her mother’s home. However, Y was tearful towards the end of her interview, and requested her mother’s support, and this was organised. The mother only spoke to Y to encourage Y to speak.
32. Video interviews can have some limitations, as it is not always clear to what extent children are affected by external factors, or are comfortable with the remote process. At the start of the interview, the author spoke with each child about their environment, and they each confirmed that they were in a private space. Each child’s presentation was mostly consistent with their chronological age. X impressed as an anxious child, and often took deep breaths and wafted her hands in front of her face (seemingly in an attempt to control her anxiety), especially when discussing her father. Y willingly engaged with the author, nonetheless, she presented as cautious when discussing her parents. There was no overt information to suggest that the children’s views had been influenced by any adult.
33. X said that it was “really enjoyable” when her father used to take her camping once a year. X stated that she chose to stop spending regular time with her father, because when this occurred, she felt that she was there “for the sake of it”, and “killing time”, and was “very bored”. X said that her father would collect her from school on Friday and take her and her sisters food shopping, and that they would eat the same meal all weekend (e.g. sausages), and that he would not buy enough food. X reported that she and Ms F (eldest sister) often argued with their father regarding trivial issues, and during those disputes he raised his voice. X explained that one contentious issue was her socialising with her friends in his care, and that when she wanted to do this, he told her that she should do it when she is with her mother, because she (X) spends more time with the mother. X advised that after her father re-married, her step-mother mostly talked to her, rather than her father when she visited him. X commented that her step-mother is “great”. However, it seemed that X had wanted her father to pay her attention. X reported that it feels a “bit awkward” when she spends time with her father once a year on her birthday, and said that her step-mother mainly engages with her during these visits.
34. Y advised that she enjoys using the PlayStation with her father. Y said that she sometimes likes talking with her step-mother about places they could visit. Y did not identify any concerns regarding her father. Y initially did not report any concerns about her step-mother, however, at the end of her interview Y began crying, and said that she had something to tell the author, but wanted her mother present. Y stated that she does not want to cause her step-mother to feel upset, but that she (Y) dislikes it when her step-mother calls her “sweetie”.
35. X and Y each spoke warmly of their relationship with their mother. Both children advised that they like watching movies with their mother. X stated that she also likes it when her mother takes her to practise driving. Y commented that she enjoys trips to the beach and cafés with her mother. Neither child reported any concerns regarding their mother.
36. X said that she sometimes wishes that she had a father around, so that he could take her to the oval to kick a ball, or take her to practise driving. X also advised about twice a month, she has to care for Y for her mother, whilst her mother works or socialises. X said that if she had a father around, he could care for Y on these occasions, and it would free her (X) to do other activities. Y did not have any wishes for her family.
37. X stated that she wants to continue living with her mother, and choosing when she spends time with her father, and said this is because she finds it “draining” spending time with him. X also commented that she has limited time available to spend time with her father, because of her school commitments, sport commitments, and working as an after school care assistant. The author suggested to X that counselling might help her to rebuild her relationship with her father. X disliked this suggestion, and said that she did not believe her father has the capacity to change.
38. Y reported that she wants the current parenting arrangements to continue, because “It works fine for me”. Y expressed concern that if she spent more time with her father, then it would limit the time she could spend with her friends who are also her mother’s neighbours.
ISSUES FOR X AND Y
39. X and Y each presented as anxious children.
40. There appears to be tensions in X’s relationship with her father.
41. The children may not have been adequately protected from the parental dispute.
Written submissions on behalf of the Applicant

The written submissions on behalf of the Applicant were filed on 4^th April 2022; they were as follows (emphasis in original):
Background
1.This outline of submissions addresses the application made by the mother to dismiss the matter, according to Rice & Asplund, noting such was only made adequately on 16 March 2022. The application also seeks indemnity costs.
Authority Concerning Rice & Asplund
2.Counsel for the mother has set out certain authorities that apply accurately. However, several essential authorities apply that are omitted.
3.First, the mother has failed to acknowledge how the father's evidence must be treated on the basis that his evidence is accepted: see [57] Marsden & Winch [2009] FamCAFC 152 and [60] of Searson & Searson [2017] FamCAFC 119.
4.Second, the purpose of the rule is essential in terms of what is styled the 'perennial football match' by Nygh J in In the Marriage of McEnearney [1980] FamCA 43, and later referred to as the 'evil that should be avoided' by Warnick J in SPS & PLS [2008] FamCAFC 16.
5.Third is the comments adopted by Warnick J at [66] of SPS & PLS that suggest that the rule can only properly apply after a litigated determination. One notes that the mother has neglected to mention in her submissions that the Final Orders are, in fact, Consent Orders. There has been no intervention or judicial determination.
The Evidence of the Mother
6. The mother filed an affidavit on 8 February 2022. In paragraph 5, the mother sought leave to rely on another affidavit. No argument has been made in submissions nor a formal application for leave under r 1.31 for relief from r 5.08, especially noting that in its totality, the mother's material is 88 pages long and also breached the rules of the Court concerning the length of annexures. Leave should not be granted. It would be inappropriate and procedurally unfair to do so.
Submissions
7. The mother's application is misconceived and fails to understand the purpose and history of Rice & Asplund. The authority exists to prevent the harm of the relitigating of Final Orders after a hearing has determined them. Here the facts are plain; the parties did not litigate but resolved matters through an Application for Consent Orders. There was no litigation nor a final determination of a range of issues in terms of findings. The purpose of the rule is not to act as some summary judgment bar; it is to mitigate the fact that res judicata does not apply in parenting matters. Even if the Court did not accept that position, the mother could not seriously assert that the risk here is the children's exposure to the 'perennial football match' in circumstances where at best, the initial game was a forfeit before the commencement of play began.
8.The father points towards several critical changes in circumstances that he says warrant revisiting the matter. The father deposed to his understanding of the joint intention as to his relationship with the children, which did not eventuate. He says the substratum of the agreement was his understanding that the mother would encourage a meaningful relationship and she has not; indeed, it is not clear from her evidence that she has. He says there has been a severe deterioration of the co-parenting relationship, which the mother agrees is the case. He further says there have been significant mental health changes in terms of Y. These matters are significant, material, and warrant revisiting the 2018 Orders.
9.The seriousness of the father's case cannot be understated. In his case, there has been a gradual undermining of his relationship with the children by the mother. The Court would be particularly concerned that the mother's evidence is replete with selected quotes of what the Y apparently says to her but nowhere contains a single instance of the mother reassuring the child or encouraging the relationship with the father, although she had the opportunity to do so. Further, the mother deposes that she felt the father's behaviour got to the point that she told him if he did something, she would call the police for breaching the Orders, which suggests that things have deteriorated markedly on her evidence since 2018. The Court would also be concerned that much of what the mother told the Child Court Expert about Y's views at the CIC Memorandum was rather conclusively debunked by the child herself in that interview. These matters lend credence to the seriousness of the father's case and point towards a fuller investigation and testing of the allegations by the Court.
10.Further to what the changes the father says are, the mother's case has a range of deficiencies and is significantly at odds with her evidence and previous positions. No submission is made to the Court by the mother that properly engages with the considerations of King & Finneran [2001] at [41, 44, and 49] as set out by Collier J. The mother does not assist the Court with any analysis of the matters previously before the Court- precisely because she cannot because they were never before the Court. Indeed, the importance of engaging in such a process was best described in [27] of Searson & Searson [2017] FamCAFC 119.
11.The mother filed a Notice of Family Violence, Child Abuse or Risk in these proceedings. In item 34, she deposed in fulsome terms to her concern that the child Y is at risk. Presumably, she was serious in that expression of concern, which in the form is described as a 'significant concern about safety and wellbeing'. It is difficult to reconcile the mother's expression of concern in her sworn document to a position she takes on the current application that it is in Y's best interests to have nothing done to address a concern as to her daughter's mental health. The mother's Notice of Child Abuse, Family Violence or Risk provides a further counterpoint to her present argument in item 35, where she sets out details of an event in 2019 that she says meets one of the serious categories outlined in the body of question 35. It is difficult to understand how the mother says this event occurs, describes it in terms of item 35, yet says to this Court that it should do nothing.
12.The ultimate relevance of the mother's Notice of Child Abuse, Family Violence or Risk is in item 36, where she says that Y should spend time with the father in accordance with her wishes. It is difficult to understand how the mother can say on 20 August 2021 that the best interests of Y warranted a significant change to the 2018 Orders in this way, yet somehow now claims that they do not, and the matter should not be revisited. The mother's affidavit evidence fails to articulate any basis for her change in position.
13.The father's evidence is that Y has anxiety and that the mother has refused her engagement with a psychologist. That evidence must be accepted, and it is a serious issue that needs to be addressed by the Court as the parties cannot resolve the matter between themselves. The father's expression of the child having anxiety appears to receive support from the mother's description of behaviours at her [26], despite the mother seeking to give some form of expert evidence about the child's anxiety at her [28]. One notes that despite her affidavit, the mother made concessions as to behaviours that could only be called anxious at [6] of the CIC Memorandum
14.A plank of the father's case is that the mother has interfered with his relationship with Ms F and X. He points towards behaviours that have occurred since 2018. That cannot have been a matter considered in 2018 when that behaviour had not occurred. As a counter, the mother made new allegations about Y fearing her father and a range of behaviours that the mother says resulted in [21] of the CIC Memorandum and further criticism at [22]. Taken together, the mother conceded to the Court in her responding material and later in her interaction with the Court Child Expert that there were significant issues that affected Y which have a factual basis post the 2018 Orders. That is before one turns to the mother's apparent diagnosis of the father at [25] of the Child Inclusive Memorandum, where she alleges that the father has severe mental health issues and Autism. These matters point away from the mother's contention that there is no material change in circumstances that warrant a change in the Orders. Indeed, they suggest that if the mother was honest in her original claims, her position now is that Y should remain in a situation of significant potential risk. Respectfully, the mother cannot have it both ways.
15. The father submits that it is difficult for the Court to dismiss the father's application in light of specific recommendations in the CIC Memorandum, especially where there is no evidence of compliance with those recommendations. The recommendations do not exist in a vacuum that can be somehow compared against the 'evil' of the impact on the children of further litigation, noting that to the extent that has already occurred, given that the litigation has been commenced, pursued, and they have been interviewed.
Brief Response and Costs
16.In terms of X, the mother makes a submission as to utility. She has failed to engage with the expert recommendations or indicate that she would support the same even in submissions. That gives weight to the father's case. The contention seems to be a summary dismissal contention which is not the application before the Court. It is plain that what is asserted as the father's basis for the application has misconceived the evidence. That is particularly so where whatever Y might be happy with; it is plainly in issue whether she will remain so with the mother's influence. Indeed the submission that Y continues to enjoy a happy and relaxed relationship with her father is contrary to the mother's evidence and what she tells the Child Court Expert. The idea that there is no evidence of any current problems for Y is simply wrong on each party's case.
17.The application seeks indemnity costs. No evidence is led justifying such an Order or explaining the basis for such an application pursuant to s 117. Applications require evidence; that is an elementary position. Where there is no evidence, they should be dismissed, as is the case here.
Written submissions on behalf of the Respondent
The written submissions on behalf of the Respondent Mother were filed on 16^th March 2022; they were as follows (emphasis in original; footnotes omitted):
OUTLINE
2.These submissions are provided in accordance with the orders of Judge Neville made on 16 December 2021, as amended in Chambers on 11 February 2022.
3.The following matters will be addressed:
a.        A brief background of the case;
b.        A brief summary of the law; and
c.        Submissions on the application of the law to the facts in this case;
BRIEF BACKGROUND OF CASE
4.Final orders were made in this Court on 10 December 2018, inter alia, regarding parenting matters for the parties’ 3 children. Pursuant to those orders the children were to live with the mother. In relation to the older 2 children, Ms F then aged 16 years (now aged 19 years) and X then aged 13 ½ years (now aged 17 ½ years) could spend time with their father in accordance with their wishes in accordance with order 31. There were, however, specific orders for the time that would occur in default of the children expressing the wish not to attend.
5.The child Y, born in 2011 (aged 11 years), is to spend time with her father every 2nd weekend from Friday after school to the commencement of school Monday in accordance with order 22a of those orders.
6.At the time of the 2018 orders, the children F and X were not in fact spending regular time with their father. They had stopped spending regular time with the father as a result of an incident in May 2018, about which both parties give differing versions. Given their lack of time with their father at the time of the orders, it can have been no real surprise to the father when they continued not to spend regular time with him after the orders. The attitude of F and X to spending time with the father can be seen as the likely genesis of order 31 as agreed between the parties.
BRIEF SUMMARY OF THE LAW
7.The rule in Rice & Asplund is well known. The quote from that case that is regularly cited is
The Court “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.” Per Evatt CJ at page 78905
8.The decision has been subject to a number of analyses by the Full Court. In the decision of Marsden & Winch, the court comprehensively reviewed the authorities and summarised the principles as follows:-
·“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.
·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.
·At whatever stage of a hearing the rule is applied, its application should remain merely a manifestation of the “best interests”.
·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”.
·The application of the rule is closely connected with the nature of, and degree of, change sought to the earlier order.
·“Shorthand” statements of the rule may contribute to its misapplication.
·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.”
9.This statement of principle has been accepted and applied in many other cases.
10.In this case the court is being asked to consider the matter on an interim or preliminary basis. In the father’s initiating application filed on 20 June 2021 he seeks to vary the 2018 orders as they relate to both X and Y. The extent of the main changes sought by him will be considered the following section.
APPLICATION OF LAW TO FACTS IN THIS CASE
11.The father seeks to change the 2018 orders as they relate to X as follows:-
a.By removing order 31 regarding the children’s wishes being respected once they turned 13 years; and
b.by requiring that she spend time with the father on at least one occasion per week for at least 4 hours.
12.It is noted that X turns 18 years in this year. In the first instance, it is unlikely that the final hearing could occur prior to her turning 18. However, even if the final hearing were imminent, the court is extremely unlikely to make any order contrary to her views. It is clear that her views, as shown by her actions, is that she will spend time with the father once a year on her birthday.
13.Notwithstanding her age, the father expresses in his affidavit filed on 21 February 2022 that he still seeks some orders in relation to X. At paragraph 16 of the affidavit, he seeks orders for X to participate in therapy with him. Given her age, any family therapy could only be ordered with X’s consent. If she consents, then there is no need for an order.
14.The father’s application should not be allowed to proceed as it relates to X and it should be dismissed.
15.In relation to Y, the father seeks an increase of time so that she lives with each of the parents on a week about basis. This is a significant change sought by the father.
16.The basis given by the father for such a substantial change is, effectively, that he is concerned that his relationship with Y will follow the same path as her sisters F and X. That is, he seeks to change the orders pre-emptively before any real or significant problems have in fact arisen.
17.The Child Inclusive Conference Memorandum dated 15 November 2021 records Y as being happy with her relationship with her father and content with a continuation of the current arrangements.
18.There is no dispute that the child Y has spent time with the father largely in accordance with the 2018 orders. In addition, as set out in the CIC Memorandum, there cannot really be a dispute that Y continues to enjoy a happy and relaxed relationship with father and is not seeking any changes. Y is clearly sensitive even to any criticism directed to the father’s household given her distress on discussing with the Family Consultant a minor issue regarding the father’s partner (at paragraph 34).
19.The problem with the father’s application is that he fears prospective breaches of the orders or a deterioration of the relationship he enjoys with Y even though there is no evidence in relation to Y of any real current, or prospective future, problems. The fact that he seeks dramatic or significant changes to the arrangements for her care is also a significant factor in dismissing the application pursuant to Rice & Asplund.
20.In her Response filed on 20 August 2021 the mother sought orders in relation to the children and, specifically sought that the 2018 orders be discharged. The mother is in the process of preparing an Amended Response seeking simply the dismissal of the father’s Application and costs.
21.Any argument by the father that there is a risk to his relationship with Y as a result of what has occurred in relation to Ms F and X cannot succeed. Given the relationship Y enjoys with the father, as set out in the CIC memo, there is no evidence that there is any significant problem between her and her father or that she is likely to seek to stop time when she turns 13 (which is not until 2024).
22.Given the father’s pre-emptive action in seeking dramatic changes to orders without any actual current change of circumstances, it is appropriate that costs be ordered in favour of the mother.
The written submissions in reply on behalf of the Respondent Mother were filed on 19^th April 2022 and were as follows (emphasis in original; footnotes omitted):
REPLY TO FATHER’S SUBMISSIONS FILED 4 APRIL 2022
1.The father raises certain issues about the statements of principle contained in the mother’s submissions filed on 16 March 2022 (“the mother’s primary submissions”). It is agreed that the applicant’s evidence would generally be accepted when a Rice & Asplund issue is dealt with on a preliminary basis. This was not mentioned in the mother’s primary submissions given that no relevant aspect of the mother’s evidence was relied upon in those submissions.
2.There is however, in this case, some additional evidence that is relevant and should be considered. The Court made orders pursuant to section 11F of the Act for a Child Inclusive Conference. A Memorandum was produced by the Family Consultant on 22 November 2021. The document provides independent evidence about a number of things and, relevantly, about the father’s relationship with the child Y. No issue was taken by the applicant as to the opinion within that document about Y’s relationship with her father.
3.Secondly, the father suggests that the principles in Rice & Asplund do not apply to cases where prior orders were made by consent. This is an incorrect statement of principle and is clearly wrong. There is nothing in any of the case law that supports this proposition. On the contrary, cases like Searson (referred to by the father), show the Court applying Rice & Asplund to cases where consent orders were the relevant earlier order.
4.The father refers to comments “adopted” by Warnick J in SPS & PLS and suggests that those comments imply that the rule in Rice & Asplund only really applies after a litigated termination. The quote from SPS is set out below
66. In the Marriage of F and N (1987) FLC ¶91-813 Nygh J, with whom Evatt CJ and Burton J agreed, said at 76,137:
Rice and Asplund in fact makes the point that this court should be reluctant in assuming jurisdiction too soon after there has been a full and adequate hearing of the custodial dispute between the parties.
5.The decision referred to by Warnick J (In the Marriage of F & N) was a case regarding an application following a defendant [sic] hearing. That is, it was simply dealing with the case as it was before the court. There was no analysis or comment by the court in that case that would support the proposition that the court was making it clear that a consent order would not have the same principles apply to it.
6.The use by the father of the description of the so-called “perennial football match” are unhelpful and irrelevant. The court has set out very clearly the principles that should be applied where there has been a prior final order in a parenting matter and no distinction is made between those orders where the final order was obtained after a defendant final hearing and those that were obtained after consent orders. Indeed, the alternative would be relative chaos as a result of, firstly, the situation that a party could seek to overturn consent orders with impunity and, secondly, that they would be less likelihood of parties reaching a settled conclusion to parenting matters if those orders were not considered to be as final as orders made after a defendant hearing.
7.In paragraph 6 of the father’s submissions he addresses the evidence of the mother. The mother’s affidavit filed on 8 February 2022 seeks leave to rely on her earlier affidavit filed on 20 August 2021. The father does likewise in his affidavit filed on 21 February 2022. That is, he also seeks leave to rely upon his earlier affidavit. It is therefore incorrect to say that the mother does not seek leave in relation to her earlier affidavit.
8.The father also takes issue about the mother supposedly not addressing some particular comments by Justice Collier in King & Finneran. With respect, His Honour’s comment are but an attempt at some shorthand version of the principles, the more detailed version of which are clearly set out in the mother’s primary submissions. It is the principles referred to there that are relevant and not His Honour’s attempt at a shorthand version of those principles.
9.In relation to the child X, the father does not really even attempt to grapple with the fact that she is nearly 18 years of age. Certainly, by the time this matter could come on final hearing, she would be 18 years of age. At that point, of course, the court will have no jurisdiction in relation to her. Prior to that time, the court would almost certainly not make any orders about her that are contrary to her expressed views. The father relies upon the recommendation in the CIC memorandum that X and her father would benefit from therapy and that X may also benefit from participating in some courses. Whilst these things may be true, the practical reality is that the court would almost certainly not make any orders about X, whether about time with her father or attending upon therapy or courses, unless it was in accordance with her expressed wishes. Assuming that no hearing could occur prior to December 2022, the court would not even have jurisdiction to make an order.
10.In relation to the child Y, the father’s case is that he needs to take pre-emptive action in order to ensure that his relationship with her does not deteriorate as his relationship with his other daughters has. On the father’s case he was not spending any time with his older children prior to the 2018 orders. This case therefore relies on the premise that his relationship with Y will go down the same path. The problem with this assertion lies in the evidence from the CIC memorandum. There can be no suggestion by the father of any current problems in his relationship with Y as a result of the expressed opinion about their relationship.
11.It is submitted that the father has not shown a relevant change of circumstances but that, even if he had, that change in circumstances does not justify the substantial change to Y’s care arrangements that are sought. This argument might be different if the father was merely seeking family therapy or similar intervention to, for example, improve his co-parenting relationship with the mother. However, the father seeks a dramatic change to Y’s care arrangements, and on that basis any possible change of circumstances that may have occurred could not be justified.
12.Having taken pains to point out the asserted error in the mother’s submissions regarding the court proceeding on the basis that the father’s material should be accepted, the father’s submissions nonetheless then take into account a range of evidence from the mother’s material. The mother may have sought some changes when the matter was initially before the court but always reserved her position in relation to Rice & Asplund.
13. The father’s case should be dismissed and an order for costs made.
Outline of principle

I note the following from four of many Full Court decisions that deal with the principle first articulated by the Full Court in Rice & Asplund.[1]
[1] Rice & Asplund (1979) FLC ¶90-725.
Firstly, and simply by way of reference only, I note Warnick J’s important decision in SPS & PLS, notably at [48], [49], [56], [58], [61], [65], [74], [78], [81], [82], [83] and [86].[2] Although the paragraphs to which I have referred should be taken to be primary points of reference, I will not and need not set them out from his Honour’s judgment, save for his Honour’s comments at [48] and [81], which are as follows:[3]
[2] SPS & PLS (2008) 217 FLR 164; (2008) FLC ¶93–363; (2009) 39 Fam LR 295. Warnick J was sitting as the Full Court.
[3] Warnick J’s comments in SPS & PLS were cited with approval by the Full Court (Bryant CJ, Finn & Cronin JJ) in Marsden v Winch (2010) 42 Fam LR 1 at [46] and [47].
[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.
[81] …in my view 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.
In 2008, the Full Court (Warnick, Boland & Murphy JJ) in Miller v Harrington discussed further the principle and application of Rice & Asplund.[4] Among other things, the Court there said, at [72] (emphasis added):
It may be, however, that neither the expressions “summary dismissal” or “striking out” is the best term to describe the procedure when, in a parenting case, the rule in Rice and Asplund is considered at a preliminary stage. This is because, as we seek to emphasise, at whatever stage the rule in Rice and Asplund is applied, the court is bound to take into account best interests considerations and also because specific requirements, including legislative requirements, apply.
[4] Miller v Harrington (2008) 220 FLR 300; (2009) 39 Fam LR 654.
Then at [80] and then at [82] - [84], the Full Court noted:
[80] In our view, that passage [at [81] in SPS & PLS] need not be taken as saying that the only way in which the rule in Rice and Asplund can be applied at a preliminary stage is on the basis that the case of the applicant for parenting orders is taken at its highest.
[82] … the qualitative question of whether a change that has occurred is or is not sufficiently significant to justify a full further hearing of a parenting issue may be one much more difficult to answer in a preliminary hearing involving resolution of only some disputed facts.
[83] This observation may be behind the approach that either the case of the applicant for parenting orders is, at a preliminary stage, taken at its highest, or the hearing embarked upon is an enquiry into all matters relating to the best interests of the child or children.
[84] On the other hand, there is authority to suggest that these are not the only legitimate procedures….
In Marsden v Winch, the Full Court observed, at [50]:[5]
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.
[5] Marsden v Winch (2010) 42 Fam LR 1.
Then in 2014, a Full Court comprising Strickland, Murphy and Austin JJ delivered judgment in Poisat & Poisat.[6] At [43], their Honours commented on the rule in Rice & Asplund:
If applied on a preliminary basis, the issue is whether the circumstances as disclosed by the evidence reveal a change of such significance that the best interests of the child require a revisiting of earlier orders.
[6] Poisat & Poisat (2014) FLC 93-597.
Most recently, in Carriel v Lendrum, a differently constituted Full Court (Finn, Strickland and Kent JJ) commented further, and at a little length, on the principle or rule in Rice & Asplund.[7] At [46], their Honours said (emphasis added):
… we are far from persuaded that the hurdles that have to be overcome to found a successful challenge on the basis of the weight afforded to the evidence have been scaled. It has consistently been held that where no error of fact or law is present, disagreement only on matters of weight cannot alone justify appellate interference….
[7] Carriel v Lendrum (2015) 53 Fam LR 157.
After noting, at [51], comments from Miller v Harrington (at [72]), and then, at [53], further comments from Poisat & Poisat (at [42]), at [56], the Full Court said:
This analysis leads us to the view that where the principle in Rice & Asplund is being considered, it will not be appropriate or necessary to discretely address many of the factors in section 60CC of the Act in determining where the best interests of the child might lie.
Then at [57], their Honours stated (emphasis added):
In a case where the principle in Rice arises for consideration, there are two circumstances which are central to the decision. First, there will already exist a parenting order and, axiomatically, the terms of that order will reflect the best interests of the child or children at the time of its making. Second, the fact that an order has been made reflects that disputation between parties to a parenting dispute, such dispute being inherently contrary to the best interests of the child whilst it exists, has been brought to an end by a curial order. Those twin circumstances dictate the conclusion that it cannot logically be in the best interests of the child to embark upon further litigation enquiring as to the child’s best interests unless it is first demonstrated that a sufficient change in circumstances has occurred since the parenting order was made.
Commenting on the decision then under appeal, the Court said, at [58] (emphasis added):
Thus, it is entirely understandable, and in our view, not erroneous, for his Honour to address the issue of “best interests” by reference to whether it is in the interests of the child for there to be the further litigation proposed by the mother. Indeed, we note that this was how the issue was framed in the mother’s outline of argument presented to his Honour at the commencement of the hearing. She said this (at paragraph 3):
The central question for consideration by the Court was encapsulated by Warnick J in the following terms (para 81, at page 310):
“… Though sometimes unstated, the underlying conclusion will or ought to 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.”
More recently, in Walter & Walter, the Full Court (May, Ainslie-Wallace & Murphy JJ) again considered the so-called Rice & Asplund principle.[8] In the course of the disposition of that unsuccessful appeal, by reference to most of the cases to which I have already referred in these reasons, I note briefly the following.
[8] Walter & Walter [2016] FamCAFC 56.
First, at [51] – [57], Ainslie-Wallace J said (May J agreed with her Honour’s reasons as well as those of Murphy J):
[51] Where the question of whether a sufficient change in circumstances has occurred is to be determined as a matter preliminary to the hearing of the application, it is accepted that the applicant’s evidence should be taken at its highest.
[52] It was argued for the mother that his Honour erred in finding that she had failed to demonstrate a sufficient change in circumstances to justify re-opening the parenting proceedings.
[53] His Honour concluded at [100] that the facts did not establish “a new and vital change in the circumstances”, and found that it was “obvious” that Amber had been anxious for some time and that anxiety had from time to time manifested itself in her refusing to go to school. He went on to offer what he considered to be the reasons for this, including that she had recently commenced high school. He thus found at [111] that the mother’s evidence did not establish a material change of circumstances in the necessary sense.
[54] The bar to appellate intervention where the challenge is to a judge’s fact finding is set high. See Edwards v Noble (1971) 125 CLR 296.
[55] In order to succeed in challenging his Honour’s finding that there had been no change in circumstances, it is necessary to demonstrate that the finding was not open to his Honour on the evidence before him.
[56] Thus it was argued that, had his Honour indeed taken the mother’s evidence at its highest it was not open to him to find that there had been no material change in circumstances. It was further argued that both his Honour’s conclusion that the child had always been anxious, and that her present refusal to attend school was a manifestation of a pre-existing condition and was probably due to her attending a new school, were findings unsupported by the evidence.
[57] His Honour’s finding that the child’s present anxiety and refusal to attend school was unsupported by the evidence. However, it was a conclusion reasonably open to his Honour given the accepted increase in her refusing to attend school and anxiety generally with the beginning of a new school regime. It could not be said that the conclusion was not open to his Honour. His Honour’s findings clearly accept the parties’ position that Amber’s anxiety and school refusal had escalated. The issue for his Honour was whether these circumstances led to the conclusion that there had been a material change in circumstances. His Honour found that they did not. That was a determination open to him and I find no error in his conclusion. This challenge is not made out.
In his consideration of the challenge regarding the trial Court’s assessment of whether there had been a material change in circumstances, Murphy J said, at [83] – [86]:
[83] In any event, while the arguments in support of the contention are framed as challenges to “principles” relating to the rule, they are, in essence, challenges to the weight which his Honour attached to aspects of the evidence.
[84] In my view, the findings made by his Honour were entirely open to him on the evidence and it was entirely open to his Honour to include the matters to which his Honour made reference in reaching a determination that a material change in circumstances was not established.
[85] In that respect, it has been held recently that:
… Plainly a circumstance can only constitute a relevant 'change' if it is a circumstance which was outside or beyond the contemplation or consideration of the parties and the court at the time the original parenting orders were made. Put another way, if the current circumstances were within the contemplation of the parties and were considered by the court at the time the original parenting orders were made, there is no basis upon which they can be said to constitute a change which would justify the prospect of continuing litigation with respect to parenting arrangements, given the adverse effect which uncertainty and unpredictability with respect to parenting arrangements can be assumed to have upon the interests of the child concerned…[9]
[9] CDW v LVE [2015] WASCA 247, at [88] per Martin CJ.
[86] In my view his Honour made no error as asserted on behalf of the mother.
Then, after referring at a little length to Warnick J’s decision in SPS & PLS, at [110] – [116], Murphy J continued (internal citations omitted; emphasis added):
[110] The exercise of those discretions will depend, like all discretionary decisions, on a multiplicity of factors. However, the decisions will include a consideration of the nature and cogency of the evidence as to material change and the nature and extent of the orders sought to be changed. The decisions will also ordinarily involve a consideration of the notorious fact – accepted as such both by authority and by Mr North in his arguments – that continued litigation and the re-agitation of contested issues about children has the potential to cause significant harm to them.
[111] In some cases, those factors, and perhaps others, will persuade a court that further evidence is required before reaching a decision on the Rice & Asplund question. The obtaining of a Family Report in an appropriate case might be an example of such further evidence, although it once again needs to be pointed out that Family Reports do not decide cases; courts do.
[112] However, the court’s decision as to the evidence necessary to decide the application of “the rule in Rice & Asplund” as a preliminary matter also involves the exercise of discretion. The exercise of that discretion will also have as its central question whether it is “more powerfully in the child[ren’s] welfare” to permit the obtaining of the further evidence – and what might be involved for the children in doing so – than to determine the application of the rule as a preliminary matter without that evidence. That can be seen to have particular importance when the evidence sought is a Family Report or the interventions of other experts that involve the participation of the children.
[113] It should also be pointed out (as it was by this Court in Miller & Harrington), that the relevant discretions must now be exercised within the mandatory principles and other provisions contained within Division 12A of the Act. In that respect two of the mandatory principles which must be applied by a court by reference to s 69ZN of the Act bear quotation:
(3) The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.
(4) The second principle is that the court is to actively direct, control and manage the conduct of the proceedings.
[114] In my view, contrary to the submissions made by Mr North, well settled authority is entirely consistent with his Honour having the power to apply “the rule in Rice & Asplund” as a preliminary matter “… even where the evidence demonstrates a material change since the previous order”.
[115] Secondly, again contrary to Mr North’s submissions, it is in my view not correct to characterise his Honour’s actions or decisions as a failure or refusal to exercise jurisdiction in proceedings for parenting orders properly invoked by the mother. The refusal by his Honour to contemplate the obtaining of a Family Report (or, perhaps, other evidence) so as to inform the rule at a preliminary stage was not a failure of judicial process but a discretionary decision performed within a mandatory statutory context and arrived at by reference to the children’s best interests for reasons which his Honour gave.
[116] It is not established that his Honour erred in law; that he failed to take account of relevant considerations; that he took account of irrelevant considerations or committed any other discretionary error. No error in the exercise of his Honour’s discretion is pleaded nor can any be seen in his Honour’s reasons.
More recently still, in Swenson & Brantley (No.2) [2020] FamCAFC 205, the Full Court said (Aldridge J; Austin & Ainslie-Wallace JJ agreeing) said, at [19]:
I consider any differences between the two phrases as semantic and not substantial. As the authorities make clear, the essential point in the application of the rule in Rice and Asplund is the balancing of the new circumstances against the undesirability of further litigation involving the child. The nature of that exercise will depend very much upon the nature of the changes relied upon. Obviously enough, if there are no changes or if the changes are insignificant or unsubstantial, there will be little to justify reconsideration of the earlier orders.
At [22], the Court said further:[10]
These authorities make clear that a change in circumstances is not itself the answer to the question as to whether the earlier parenting orders should be reconsidered, but that those new matters, in all of the circumstances, must be sufficient to justify or to provide for such a hearing.
[10] See further, the comments by the Full Court in Shan & Prasad (2020) 61 Fam LR 440.
Consideration and disposition
In general terms, the jurisprudence over the years regarding the “rule” or principle in Rice & Asplund notes those matters which might be described as borderline regarding a relevant change in circumstances, and those that fall either side of this less than crystal clear line. This is to say that other than the borderline cases, which could perhaps go either way, there are those matters where there is a patent change in circumstances which warrant Court intervention, and those matters where plainly there is no such change and the Application should be refused.
As Warnick J said in SPS & PLS, the rule in Rice & Asplund is a particular manifestation of the “best interests” principle to ensure that children are not endlessly embroiled in ongoing litigation.
As already noted, particular regard is taken of the outline of principle in the decisions in SPS & PLS, Miller v Harrington, Marsden v Winch, Poisat, Carriel v Lendrum, and quite recently, Shan v Prasad. I note that in submissions, both parties refer to some of the authorities here mentioned, plus one or two others. I have considered those other authorities, namely Searson, and Mahoney & Dietrich; I need not otherwise refer to these decisions because they are referenced in the submissions.

The following significant matters should be noted from the 2018 Final Consent Orders.
Clause 31 of the Final Consent Orders refers to the parties’ agreeing that the wishes or views of the children, Y in particular, will be given “respect” by each of the parties once she turns 13 years. The exact terms of that Order speak for itself.
One of a number of relevant considerations arising from this Order is the reality that the parties clearly considered and agreed upon it, in December 2018, as a vehicle for parenting matters into the future. This is also to say that the parties clearly turned their minds to the future and agreed upon this Order as a means or a relevant vehicle to deal with parenting matters for their children, and Y in particular, in the years ahead. To state it again: both parents agreed to respect the views of the children regarding their wishes in the “spend time with” arrangements with both parents.
Next, pursuant to Order 21, both parties agreed that the 3 children of the relationship will live primarily with the Mother.
There is no issue that 20 year old Ms F plays no part in the current dispute.
By his Application filed 20^th June 2021, the Father seeks specific parenting Orders in relation to 17½ year old X. Respectfully, how or why such Orders were ever sought remains a mystery. Properly advised, it is almost inconceivable that any Judge would make parenting Orders for a person of this age, particularly directing this young adult to spend a specified number of hours with the Father, rather than simply making an Order that X will spend time with each parent in accordance with her wishes. The Father’s Application in relation to X, primarily on the grounds of her age, should never have been brought. Moreover, such Applications regarding young persons of such an age, which effectively seek coercive Orders, are invariably counter-productive. How or why a parent would seek such Orders is a mystery, and (to speak generally) really speaks more about the Father, his insight and understanding (or unfortunately his lack of it), than it does about his fears for the relationship with his daughters.
X’s anxiety, as recorded in the Memo, when speaking about her Father, only adds extra weight, if more be needed, that no Order other than as indicated, should be made regarding her wishes and any “spend time with” arrangements. They can, and only ever should be, in accordance with her wishes. To the degree relevant and or necessary, I will make that Order regarding X.
Regarding the Father’s Orders sought for Y, a number of matters should be noted.
First, notwithstanding that the 2018 Consent Orders provide for regular time between Y and her Father, and that she live primarily with her Mother, there is no evidence before the Court to support the Father’s proposed radical change in arrangements for an equal time/shared care arrangement. There is nothing in the CIC Memo to support such a significant change in Y’s living arrangements to support such Orders.
Secondly, as recorded in the CIC Memo, Y makes clear that she has a good relationship with the Father and that the current spend time with Arrangements with her Father, in accordance with the December 2018 Orders, “works fine for me.” (par.38). Somewhat rhetorically, in such circumstances, one might ask “why upset the apple cart”?
Thirdly, the Father’s primary ground or argument for embroiling everyone in further litigation is that he fears that his relationship with Y will go the same, rather negative, way that has occurred with her older sisters and the Father. According to his Affidavit material, see for example pars.52 – 65 of his Affidavit filed 20^th June 2021, the Father contends that the Mother and the older children are effectively conspiring to undermine his relationship with Y.
As already noted, the principal difficulty with the Father’s contention regarding Y is that, as recorded by Ms E, Y has a good relationship with the Father and that she likes the current and agreed between the parties “spend time with” arrangements. Whatever concerns or (currently unfounded) fears the Father has regarding his relationship with Y, it is (a) necessarily speculative, (b) without relevant evidence, (c) he cannot deny the good relationship he has with her, (d) each child is an individual and each child will ultimately make up her own mind, in time, what is best for them, and (e) there is little analysis or reflection in any of the material about whether there is something in the Father’s life, action, personality and or history, which has led the older girls to choose to spend less and less time with him.
In this regard, I note the following email from the eldest young person of the relationship, F (now aged 20 years), dated 9^th November 2020, addressed to the Father, and the Father’s lengthy reply, which is annexed likewise to his Affidavit. That correspondence reads as follows:
From: Ms F
Sent: Monday
To: … com
Subject: Grad.
I’m going to keep this brief.
I do not want you to come to my graduation. I feel like you have thrown away any sort of opportunity to be the father that I needed during these years, which therefore throws away any opportunity to be a part of these events. Not only have you traumatised me, but you continue to threaten not just me, but my sisters, and my mother. I cannot allow someone in my life that is so detrimental to me and the people that I love. At this point in time, I do not want a relationship with you. Needless to say, I do not want you to attend any events without my express permission. I feel it to be an invasion of my privacy, as well as a violation as you have given up the privilege to attend these milestones.
Do not come to my graduation. I do not want you there.
Brooks family … com
To: Ms F
Hi Ms F
I’ve been respecting your wishes to not communicate. So, while it might seem strange, I’m thankful you took time to share your thoughts and feelings. I pray you respectfully read my response to the end.
It’s clear you’re in a lot of pain and hurting from the divorce, and all that has followed. I’m so sorry for my part in that; but I wonder if your trauma is part of a bigger issue, and I can’t take responsibility for that…
How and why such a long and difficult reply was felt necessary by the Father to Ms F, and how he thought that it might help the healing process between Father and daughter, is almost unfathomable.
Where so many delicacies are involved in the strained relationships between the parents, on the one hand, and between the Father and his older two daughters (I could also include the eldest daughter Ms F here as well), on the other, but fortunately with a good relationship between the Father and Y, why and how it is thought to be advisable, or remotely therapeutic, to engage in the blunt, time-consuming, costly and emotionally exhausting process of litigation, in my view, is incomprehensible.
In my view, (a) having regard to the outline of principle from long-established cases that start with Rice & Asplund, (b) taking the Applicant Father’s evidence at its highest, (c) in the light of the terms of the 2018 final consent Orders, (d) having regard to X’s age, and (e) the good relationship the Father has with Y, there is not a relevant change in circumstances that would warrant the two children, almost 18 year old X, and 10 year old Y, from being subjected to further litigation. It is not in their best interests for litigation to be re-charged or re-ignited. Indeed, it risks further damage to everyone.
Indeed, once X is properly taken out of the litigious equation, all that is left is (a) the Father’s good relationship with Y and (b) the Father’s unfounded fear that his and Y’s relationship, at some unspecified time in the future, may sour. It seems to me that such speculation is precisely that: “speculation.” It is no foundation for further, costly litigation. In terms of the relevant “test”: there is no change in circumstances at all. Moreover, to embroil the girls, Y in particular, could grossly back-fire against the Father and bring about the very thing he now fears but has no evidence (at least regarding Y) to support. Respectfully, his good relationship with Y (a) undermines his claims against the Mother, and (b) highlights the importance for the Father “to pay attention to himself” (rather than look elsewhere) to ensure that there is no cause in the future that might undermine his currently good relationship with her.
I note too that by the time of any litigation, X will be well above the age of majority, which will place her beyond the jurisdiction of the Court. Indeed, given the delays in hearings, Y will potentially be approaching the magic year of 13 years under the 2018 Consent Orders.
In passing, in response to an argument without substance in some parts of the submissions, I note that (a) nothing turns on the fact that the 2018 Orders were made by Consent, as opposed to the matter being litigated to finality and the Court delivering a judgment, and (b) there is long-standing authority that consent Orders convert an agreement into a judicial decision.[11]
[11] Among other places, see Spencer Bower & Handley: Res Judicata 5^th edition 2019, at par.2.16.
The very blunt instrument of the law should be wielded only where necessary and appropriate. Even then, it should occur with as much delicacy as possible, particularly in parenting cases. To re-open the litigation here would almost inevitably open old but obviously deep wounds and very likely create new ones. The most therapeutic approach possible that is child-focussed, not adult focussed which seems rather to be the focus here, is clearly the best way forward. My strong counsel to the Father is, whatever the hurt and injury suffered along the way (noting that all have suffered including the children, of course), it remains essential to tread lightly. Carrying a big stick and asking the Court to wield it will only inflict further and likely irreparable injury here on all involved. That will assist no one.
Otherwise, and in addition to these reasons, I agree with the submissions filed on behalf of the Mother. The Father’s Application, filed 20^th June 2021 must be dismissed. In my view, there is a strong case for the Mother’s costs to be paid by the Father. I will so Order, either as agreed or taxed, and to be paid within 60 days.

I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of Judge W J Neville.
Associate:
Dated: 14 June 2022

File number(s):	CAC 1302 of 2021
Judgment of:	JUDGE W J NEVILLE
Date of judgment:	5 May 2022
Catchwords:	FAMILY LAW – Parenting – Application to re-open proceedings following final consent Orders being made in 2018 – Consideration of Rice v Asplund principles – no sufficient change in circumstances to qualify re-opening proceedings – re-commencing litigation not in the best interests of the children – Application dismissed with an Order for costs in favour of the Mother
Legislation:	Family Law Act1975 (Cth), s 117 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), Rules 1.31, 5.08
Cases cited:	Carriel v Lendrum (2015) 53 Fam LR 157 CDW v LVE [2015] WASCA 247 In the Marriage of F and N (1987) FLC ¶91-813 In the Marriage of McEnearney [1980] FamCA 43 King & Finneran [2001] FLC 93-079 Mahoney & Dietrich (2020) FLC 93-955 Marsden v Winch (2010) 42 Fam LR 1 Miller v Harrington (2008) 220 FLR 300; (2009) 39 Fam LR 654 O’Brien & O’Brien [2017] FamCAFC 219 Phillips v Hansford (No.2) (2020) 60 Fam LR 160 Poisat & Poisat (2014) FLC 93-597 Rice & Asplund (1978) 6 Fam LR 570; (1979) FLC ¶90-725 Searson & Searson [2017] FamCAFC 119 Shan & Prasad (2020) 61 Fam LR 440 SPS & PLS (2008) 217 FLR 164; (2008) FLC ¶93–363; (2009) 39 Fam LR 295 Swenson & Brantley (No.2) [2020] FamCAFC 205 Walter & Walter [2016] FamCAFC 56 Spencer Bower & Handley: Res Judicata 5^th edition (London: LexisNexis, 2019)
Division:	Division 2 Family Law
Number of paragraphs:	49
Date of hearing	In Chambers on the papers
Date of last submission/s:	19 April 2022
Place:	Canberra
Counsel for the Applicant	Mr J Haddock
Lawyer for the Applicant	KJB Law
Counsel for the Respondent	Mr G Howard
Lawyer for the Respondent	Parker Coles Curtis

CAC 1302 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR BROOKS Applicant
AND:	MS BROOKS Respondent

ORDER MADE BY:	JUDGE W J NEVILLE
DATE OF ORDER:	5 MAY 2022