Carlton and Carlton
[2008] FamCA 964
•12 November 2008
FAMILY COURT OF AUSTRALIA
| CARLTON & CARLTON | [2008] FamCA 964 |
| FAMILY LAW – CHILDREN – application to vary existing parenting orders – where Respondent submits application should be dismissed pursuant to Rice and Asplund (1979) FLC 90-725 - in the event the Court was satisfied the Applicant had demonstrated a substantial change in circumstances, the Applicant submitted that the Court would nonetheless dismiss the application because allowing it to continue was contrary to the children’s best interests - the rule achieves an outcome for children which promote their best interests by the application of statute - there is no alternate rule of general application which enables a court exercising Family Law Act jurisdiction to dismiss a parenting application at a preliminary hearing for the reasons argued by the Respondent |
| Family Law Act 1975 (Cth) Family Law (Shared Parental Responsibility) Act 2006 (Cth) |
| Rice and Asplund (1979) FLC 90-725 |
| APPLICANT: | Ms Carlton |
| RESPONDENT: | Mr Carlton |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Commission of NSW |
| FILE NUMBER: | (P)NCC | 3752 | of | 2007 |
| DATE DELIVERED: | 12 November 2008 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Newcastle |
| JUDGMENT OF: | The Hon. Justice Ryan |
| HEARING DATE: | 15 September 2008 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Byrnes |
| SOLICITOR FOR THE APPLICANT: | Byrnes Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Hamilton |
| SOLICITOR FOR THE RESPONDENT: | Cecil Black Family Lawyers |
| SOLICTOR ADVOCATE FOR THE INDEPENDENT CHILDREN’S LAWYER | Ms Carty |
Orders
That the mother’s Application in a Case filed 26 August 2008 is dismissed.
In the event a party or the Independent Children’s Lawyer seeks costs of these preliminary proceedings, within 28 days they shall file with my Associate and serve written submissions.
Within 14 days of service of submissions filed pursuant to the above order, the party or Independent Children’s Lawyer shall file with my Associate and serve written submissions in reply.
Within a further 7 days an applicant for costs may file with my Associate and serve any further submissions in answer.
IT IS NOTED that publication of this judgment under the pseudonym Carlton & Carlton is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT NEWCASTLE |
FILE NUMBER: (P)NCC3752 OF 2007
| MS CARLTON |
Applicant
And
| MR CARLTON |
Respondent
REASONS FOR JUDGMENT
Introduction
Mr Carlton (“the father”) and Ms Carlton (“the mother”) have two children, J and C. J was 14 months old when the parties separated and C was born four months afterwards. The children are now respectively 11 and 10 years old. Since separation the children have lived with the mother in P. For about 24 months after the parties separated the children’s contact with the father was limited. Since then they have regularly spent time with him albeit not always with the same frequency or duration. In the ten years since the parties separated they have been involved in various family law proceedings which combined span approximately five and a half years. The mother says these years of litigation have been personally wearing and emotionally and psychologically damaging to the children.
In February 2006 the father moved from P to Darwin. Because of the vast distance between Darwin and P the parties changed the children’s arrangements for spending time with the father, with the focus becoming upon school holidays and regular weekends falling by the wayside.
In April 2007 the father filed a parenting application seeking that both children live with him, which as far as J was concerned, he said should occur immediately. The father, who himself claims expertise in the field of diagnosis and treatment of autism spectrum disorders, said J had been diagnosed with Aspergers Syndrome. In circumstances where he said the mother was unwilling to accept the diagnosis and was not meeting the children’s needs he submitted both children should live with him.
Whether or not J has an autism spectrum disorder is a point of contention between the parties and has been since before he started school. Well before J started school it was apparent he had behavioural and developmental delay issues. Throughout his childhood he has been involved in various assessments and services none of which has resulted in an Aspergers Syndrome or pervasive developmental diagnosis. Because the father relied so strongly on the mother’s refusal to accept that J has Aspergers Syndrome or some other autism spectrum disorder, the parties and Independent Children’s Lawyer appointed Dr S, who is an expert in this field, to investigate and report on the issue. Although such a report would usually be obtained further along the litigation pathway than this case had reached the Court was persuaded that this was critical issue the resolution of which might assist the parties to reach an agreement and thereby alleviate the stress the mother said the children were feeling.
It is Dr S’s opinion that J does not satisfy any diagnostic criteria for an autism spectrum disorder or a pervasive developmental disorder. Dr S concluded that J satisfied the criteria for Oppositional Defiant Disorder as outlined in DSM-IV TR. After Dr S’s report was released to the parties the father sought and was granted leave to subpoena his records. This was so that the father could question the expert’s methodology and diagnosis. The Court understood that that the father would then apply for the appointment of an adversarial expert on the same issue. In the event the father decided against asking the court expert questions and did not apply for permission to adduce adversarial expert evidence. While he maintains the expert opinion is defective in relation to the autism issue he adopted the Oppositional Defiant Disorder diagnosis, as did the mother. The parties have not agreed to co-operatively implement the balance of Dr S’s recommendations concerning the children’s care.
Reliant upon what is commonly referred to as the rule in Rice and Asplund (1979) FLC 90-725, the mother submitted that as a preliminary issue the father’s application should be dismissed. She asserted that the father had not established a substantial change in circumstances. In the alternative, if J’s behavioural difficulties were sufficient ground to re-open the parenting orders, the adverse impact of the proceedings on the children was so severe that the children’s best interests require that his application be dismissed without further hearing.
The father resisted the mother’s application and said there were a number of changes to the children’s circumstances, which whether considered individually or collectively entitled him to continue his application. These included the children’s views in favour of living with him, their complaints to him about living with the mother, J’s school difficulties and poor attendance, the mother’s inadequate attention to the children’s day to day needs, and irrespective of its genesis, his evidence that the mother was not adequately managing J’s behavioural issues.
The Independent Children’s Lawyer is concerned about the effect of this litigation upon the children, particularly J, and supported the mother’s dismissal application.
Background facts
The father was born in April 1964.
The mother was born in November 1965.
The parties married in May 1992 and separated on 10 July 1998.
The marriage was dissolved on 9 January 2000.
There are two children of the relationship: J born in May 1997 and C born in November 1998. Both children were born in P and have always lived there.
At separation J remained in the mother’s care. C was born after the parties separated. For the first 18 months or so after the parties separated the father’s contact with the children was spasmodic and limited.
The father moved to Sydney and commenced living with his current wife in late 1998.
On 20 April 1999 the mother commenced parenting proceedings in the Local Court seeking orders that the children live with her and have certain specified contact with the father.
On 7 February 2000 interim parenting orders were made by consent which provided that the father have specified day contact with J one weekend in February and March 2000 in P. No provision was made for the father to have contact with C although DNA parentage was ordered. The DNA parentage tested established the father’s paternity.
Between March and September 2000 the father did not see the children.
In September 2000, by agreement, the father commenced seeing the children on a reasonably regular basis.
On 8 May 2001 final parenting and property orders were made by consent in the Family Court at Newcastle. The parenting orders provided:
1.That the children [J] born […] May 1997 and [C] born […] November 1998 reside with the mother
2.That the father have contact to the said children as follows:
a) from 9.00 am to 5.00 pm on three consecutive Saturdays commencing 19 May 2001;
b) on each third weekend from 9.00 am Saturday until 4.00 pm Sunday commencing 9 June 2001;
c) in the event that a public holiday falls on a Monday immediately following a weekend upon which the father has contact pursuant to the proceeding subparagraph, then the father’s contact shall be extended to 4.00 pm on such Monday;
d) until 1 February 2002:
i) from 12 noon on 29 September 2001 (being the first Saturday of the term three school holidays) until 7.00 pm on Wednesday 3 October 2001;
ii) from 12 noon on 3 January 2002 to 7.00 pm on 17 January 2002.
e) from 1 February 2002 onwards:
i) for the second half of all school holidays in years ending with an uneven number;
ii) for the first half of all school holidays in years ending in an even number.
f) On Father’s Day each year, between 9.00 am and 5.00 pm.
g) Telephone contact between 6.00 pm and 6.30 pm each Wednesday and Sunday when the children are not in the care of the father and at 5.00 pm on Christmas Day and the children’s birthdays.
h) Such other contact as may be agreed.
3.That the mother be solely responsible for the day to day decisions concerning the care, welfare and development of the children whilst they are in her care pursuant to these orders.
4.That the father be solely responsible for the day to day decisions concerning the care, welfare and development of the children whilst they are in his care pursuant to these orders.
5.That the father collect the children form the mother at the commencement of contact at the mother’s home and that the father return the children to the mother at the conclusion of contact at the mother’s home.
6.That in the event that the father wishes to communicate with the mother about contact arrangements or the children’s welfare that such communications be made by the father by writing to the mother or telephoning her.
…
14.The husband is at liberty to appoint a paediatrician in Newcastle to examine and report on [J] and shall ensure the wife is made aware of the appointment to enable her attendance and [J’s] attendance. The husband shall bear the costs of the assessment, and in the event the wife cannot attend the husband shall ensure [J’s] attendance
15.Noted should [J] require any ongoing therapy or treatment such will take place in [P].
At the time these orders were made the father was living in L. Until the next ordered variation the father spent time with the children as provided for in these orders.
The father and his current wife were married in January 2001.
In December 2002 the father and his wife moved to P.
On 8 April 2003 the father filed an application in the Federal Magistrates Court seeking a variation of the 9 May 2001 orders. Basically the father sought to increase his contact with the children to each alternate weekend from after school on Friday to 5pm on Sunday, and each from after school Wednesday until Thursday morning. Also that he and the mother have joint responsibility for the long term care welfare and development of the children.
The mother filed a Response in which she sought that the father’s application be dismissed.
On 11 December 2003 interim orders were made varying Order 2(b) of the orders made on 9 May 2001. By this variation the father’s time with the children increased to each alternate weekend from 4.00 pm on Friday to 5.00 pm on Sunday during school term, each alternate week during school term from after school on Tuesday until 7.15pm that evening, and for some special days such as Christmas and children’s birthdays. It was also ordered that the parties have joint responsibility for the children’s long term care welfare and development. The father was permitted to be involved in the children’s school activities. In addition, an order was made for the appointment of a separate representative for the children. The father’s contact with the children increased in the manner provided for by these orders.
On 22 November 2004 final orders were made by consent. These consent orders are set out below.
1.That orders 1 to 6 made in the Family Court at Newcastle on 8 May 2001 be set aside.
2.That the children [J] born […] May 1997 and [C] born […] November 1998 reside with the mother.
3.That the mother be solely responsible for the day to day decisions concerning the care, welfare and development of the children whilst they are in her care pursuant to these orders.
4.That the father be solely responsible for the day to day decisions concerning the care, welfare and development of the children whilst they are in her care pursuant to these orders.
5.That the mother and father in joint consultation are to have the responsibility for the decision making as to the long term care, welfare and development of the children.
6.That the father have contact with the said children as follows:
a) Each alternate weekend from 4.00 pm on Friday to 5.00 pm on Sunday during school term.
b) In the event that a public holiday falls on a Monday immediately following a weekend upon which the father has contact pursuant to the preceding subparagraph then the father’s contact shall be extended to 4.00 pm on such Monday.
c) To facilitate the contact the father will collect the children from the mother’s residence at the commencement of such contact period and the mother will collect the children from the father’s residence at the cessation of contact.
d) Each Tuesday preceding the weekend contact from the completion of school until 7.15pm on such Tuesday. The father is to collect the children from school at the beginning of such contact and to return them to the mother’s residence at the cessation of contact.
e) For half of all school holidays being for the second half of all school holidays in uneven numbered years and for the first half of all school holidays in even numbered years.
f) On Father’s Day in each year from 9.00 am until 5.00 pm.
g) That in the event that the children are in the care of the father on Mother’s Day then the mother is to have contact with the children between 9.00 am and 5.00 pm and in lieu the father will be granted a further day’s contact at a time agreed between the parties.
h) The parent not having the first half of the Christmas vacation shall have the children from 5.00 pm on Christmas Eve until 12.00 midday on Christmas Day.
i) On each of the children’s birthdays the parent who has the children for that day will make both children available for contact with the other parent for a period of not less than two hours.
j) In the event that the mother’s birthday falls on a contact day the father will not exercise contact but will be granted a further day in lieu at a date agreed between the parties.
k) In the event that the father’s birthday falls on a weekend where he does not have contact the father will have contact from 9.00 am to 5.00 pm on that day.
l) At other times as agreed between the parties.
7.The father is permitted to attend each of the children’s schools for the purpose of school functions, parent/teacher meetings, P & C meetings, sports days, speech nights, fundraising events, canteen duty, class reading and educational programs, school excursions and any other event in the school program to which parents are invited to attend or participate.
8.Both parents are to be restrained from physically disciplining the children.
9.That the mother and the father shall encourage and foster the children’s relationship with the other party and neither party shall denigrate or criticise the other in the presence or hearing of either or both children or permit a third person to do so.
The outcome of this round of litigation is largely consistent with the father’s application and the recommendations made in a Family Report. The orders are inconsistent with the mother’s position contained in her Response.
Thereafter the father’s contact with the children occurred in accordance with these orders.
In mid-January 2006 the father was offered employment on a three year contract with C Organisation in Darwin. The parties then informally consented to alter the 2004 orders so that the father would spend time with the children for all of the mid year school holidays and half of Christmas holidays.
The father and his wife moved to Darwin on 13 February 2006. Following the father’s move to Darwin the children travelled to Darwin during the school holidays at the frequency referred to above.
On 12 September 2006 the father filed an Application and a supporting affidavit in the Federal Magistrates Court seeking a review of the decision made by the Child Support Agency with regard to his child support income and deductions for costs of contact with the children. In that application the father was seeking the following orders:
Final Orders:
1.That there be a departure from administrative assessment of child support for [J] born […] May 1997 and [C] born […] October 1998 payable by [the father] to [the mother] as follows:
a)From 1 October 2005 to 31 January 2007 the rate of child support be fixed at $260 per month;
b)From 1 February 2007 to 15 February 2009 the rate of child support be fixed at $400 per month.
2.That the income derived by [the father] from his [public service] superannuation disability pension be exempted from inclusion as child support income from 1 October 2005 to 4 November 2016 in compliance with Order 17 from Family Law Orders signed in the Newcastle Family Court on 8 May 2001 by Justice Mullane, [the father], and [the mother].
3.That the Child Support Agency transfer any and all case files and case management pertaining to the applicant and his children to the Darwin, Northern Territory office.
4.That all penalties applied by the Child Support Agency to the applicant’s child support account from 1 October 2005 to the date of final hearing and determination be excluded from that account.
5.That an award of costs be made against the Child Support Agency for the time taken to prepare the objection to the original decision and to take this matter to Court.
Interim or Procedural Orders:
1.That as from 1 October 2005 the obligation of [the father] to pay child support be stayed pending the hearing and final determination of these proceedings.
2.That the Child Support Agency do all things and acts necessary to cease enforcement of any and all child support decisions made between 1 October 2005 and 14 July 2006 through the applicant’s employer, the taxation system or by any other means pending the hearing and final determination of these proceedings.
3.In doing all things and acts specified in this Order the Child Support Agency rescind all notices served upon the applicant’s employer within 48 hours of this order being granted.
On 12 December 2006 the mother filed a Response to the father’s Application in which she sought that his Application for Final and Interim Orders be dismissed and that he pays her costs.
On 16 February 2007 the father’s child support application was listed for final hearing on 4 May 2007.
On 27 April 2007 the father filed an Amended Application. In this he continued his child support application but added a suite of proposed parenting orders. The orders sought are set out below.
Final Orders
1.That there be a departure from administrative assessment of child support for [J] born […] May 1997 and [C] born […] October 1998 payable by [the father] to [the mother] as follows:
a)From 1 October 2005 to 31 January 2007 the rate of child support be fixed at $260 per month.
b)From 1 February 2007 to 15 February 2009 the rate of child support be fixed at $400 per month.
2.That the income derived by [the father] from his [public service] superannuation disability pension be exempted from inclusion as child support income from 1 October 2004 to 4 November 2016 in compliance with Order 17 from Family Law Orders signed in the Newcastle Family Court on 8 May 2001 by Justice Mullane, [the father] and [the mother].
3.That the Child Support Agency transfer any and all case files and case management pertaining to the applicant and his children to the Darwin, Northern Territory, office.
4.That all previous parenting orders shall be discharged.
5.That [the children] shall live with the father.
6.That [the children] shall spend time with the mother on such occasions as are agreed to, and in the absence of agreement:
a) For the whole of the April school holidays in 2009 and thereafter in each second year.
b) For the whole of the September/October school holidays in 2008 and thereafter in each second year.
c) For the first half of the June/July school holidays in 2007 and thereafter in each second year, and for the second half of those holidays in 2008 and thereafter in each second year.
d) For the first half of the Christmas school holidays in 2007 and thereafter in each second year, and for the second half of those holidays in 2008 and thereafter in each second year.
7.That each of the parents shall be permitted to have telephone communication with [the children] when they are with the other parent, at any reasonable time in a non-emergency situation, and at any time in an emergency situation.
8.That the parent with whom [the children] is then living shall permit them to telephone the other parent at all times they wish.
9.That for the purposes of paragraphs 8 and 9 (sic) of these orders, each of the parents shall maintain a contact telephone.
10.That each of the parents shall keep the other informed of where [the children] are living and a telephone number at which [the children] may be contacted, during the time which [the children] are with that parent, and shall notify the other of any change of such details within 72 hours of any change, and where that contact may be by mobile telephone, the parent in whose care [the children] are, shall ensure that the mobile telephone is at all times adequately charged and switched on.
11.That if [the children] are involved in a medical or other emergency, the parent with that knowledge shall inform the other of that emergency as soon as practicable.
12.That neither parents shall denigrate the other or any other person of significance to [the children], within their sight, hearing or presence.
Interim Orders
13.That as from 1 October 2005, the obligation of [the father] to pay child support be stayed pending the hearing and final determination of these proceedings.
14.That the Child Support Agency do all things and acts necessary to cease enforcement of any and all child support decisions made between 1 October 2005 and 14 July 2006 through the applicant’s employer, the taxation system and by any other means pending the hearing and final determination of these proceedings
15.In doing all things and acts specified in this order, the Child Support Agency rescinds all notices served upon the applicant’s employer within 48 hours of this order been granted.
16.That until further order, [J] shall live with the father.
17.That until further order, [J] shall spend time with the mother on such occasions as are agreed to, and in the absence of agreement:
a)For the whole of the September/October school holidays in 2008 and thereafter in each second year.
b)For the first half of the June/July school holidays in 2007.
c)For the first half of the Christmas school holidays in 2007.
18.That until further order, [C] shall spend time with the father on such occasions as are agreed to, and in the absence of agreement:
a) For the second half of the June/July school holidays in 2007.
b) For the whole of the September/October school holidays in 2007.
19.That until further order, each of the parents shall be permitted to have telephone communication with [J] and [C] when they are with the other parent, at any reasonable time in a non-emergency situation, and at any time in an emergency situation.
20.That until further order, the parent with whom [J] and [C] is then living shall permit each of them to telephone the other parent at all times they wish.
21.That until further order, for the purposes of paragraphs 21 and 22 of these orders, each of the parents shall maintain a contact telephone.
22.That until further order, each of the parents shall keep the other informed of where [J] and [C] are living and a telephone number at which [J] and [C] may be contacted, during the time [J] and [C] are with that parent and where that contact may be by mobile telephone, the parent in whose care [J] and [C] are, shall ensure that the mobile telephone is at all times adequately charged and switched on, and shall notify the other of any change to such details within 72 hours of any change.
23.That until further order, if [J] and [C] are involved in a medical or other emergency, the parent with that knowledge shall inform the other of that emergency as soon as practicable.
24.That until further order, neither parent shall denigrate the other or any other person of significance to [J] and [C], within their sight, hearing or presence.
On 30 April 2007 the father filed a Notice of Discontinuance of the child support component of his Amended Application.
On 1 May 2007 a federal magistrate granted the father leave to discontinue his application filed on 12 September 2006 in respect of child support and vacated the hearing date. The father was ordered to pay the mother’s costs in relation to the child support application fixed at $1650.00 within 30 days. The mother was ordered to file and serve a Response and affidavit in respect of parenting matters within 21 days.
On 6 June 2007 the proceedings were transferred to the Federal Magistrates Court at Newcastle.
On 13 June 2007 the mother filed a Response to the father’s Amended Application seeking that it be dismissed. In addition orders that the father pay her costs and that orders made on 22 November 2004 be confirmed other than order 6 which would be discharged and in lieu thereof that the father spend time with the children annually for one half of each mid year school holidays, for three weeks in January and as otherwise agreed upon by the parties, and that the father make all necessary arrangements and pay for all fares required to transport the children to and from Darwin.
On 10 August 2007 a federal magistrate ordered that the children be independently represented.
On 22 October 2007 the proceedings were transferred to this Court. It was ordered by consent and pending further order that each parent is restrained from talking to either of the children about these proceedings or permitting any other person do so.
On 26 August 2008 the mother filed an Application in a Case seeking that the father’s Application filed on 27 April 2007 be dismissed, the orders made on 22 November 2004 be confirmed and that the father pay her costs. Her approach being that the Court should determine whether or not there was a substantial change in circumstances as a threshold issue.
On 12 September 2008 the father filed a Response to the mother’s Application in a Case seeking orders that her application be dismissed and that she pays his costs.
At the mother’s behest and with the support of the Independent Children’s Lawyer the Court listed her Application in a Case for a preliminary hearing on 15 September 2008.
The father’s circumstances
Not long after the parties separated the father retired from the public service.
In 2001 he obtained a Bachelor degree. Between 2002 and 2005 he was a teacher. In 2006 the father obtained a postgraduate qualification. Since February 2006 he has been working with C Organisation in Darwin. The father specialises in children with autism spectrum disorders and other developmental conditions. The father has worked with government departments and also participates in a number of committees and projects and provides services for disadvantaged clients with autism, Aspergers Syndrome, developmental disorders, and behavioural problems.
The father lives with his wife in Darwin. His wife has two adult children who live independently.
J and C are the father’s only children.
The mother’s circumstances
The mother lives in a home she owns in P. She currently works on a casual basis at a local supermarket between one and a half and three and a half hours per week. Her mother, two brothers and grandmother all live in P. From her family the mother receives considerable personal and practical support.
It is the mother’s position that the father filed his Amended Application purely for financial reasons. She says that the father has arranged his circumstances so as to avoid his child support responsibilities, and that the father’s application for orders that the children live with him is motivated by his desire not to have to pay child support. The mother gives a detailed overview of her financial position in her affidavit. She receives modest child support and carries the primary financial burden for meeting the children’s day to day expenses.
The mother has repartnered but does not live with her partner.
J and C are the mother’s only children.
The rule in Rice and Asplund (1979) FLC 90-725
In Rice and Asplund (1979) FLC 90-725, the Full Court held that there needs to be a sufficient change of circumstances to warrant re-opening parenting orders. Evatt CJ with whom Pawley SJ and Fogarty J agreed held at (78,905 - 78,906) that:
The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that, 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 (passage quoted in Hayman and Hayman (supra), at p. 75,680). These are not necessarily matters for a preliminary submission, but they are matters that the judge should consider in his reasons for decision. It is a question of finding that there are circumstances which require the court to consider afresh how the welfare of the child should best be served. These principles apply whether the original order is made by consent or after a contested hearing. The way they apply and the factors which will justify the court in reviewing a custody order will vary from case to case.
Once the court is satisfied that there is a new factor or a change in circumstances, then the issue of custody is to be determined in the ordinary way. The court must apply the principles of sec. 64 and weigh up the factors for and against the proposals of each party, having regard to the welfare of the child as the paramount consideration. One of these factors is the length of time the child has been in a particular situation. Another is any earlier decision of the court, and the reasons for that decision. The possible advantages or disadvantages of a change in custody need consideration along with all the other usual factors. While the court should give weight to any earlier decision and, in particular, to any findings of fact, the judge is not bound by the earlier court's assessment of the parties or views as to the best interests of the child. These are matters which cannot be determined by any fixed or absolute standard.
In King v Finneran (2001) FLC 93-079, Collier J, sitting as the Full Court alone, when discussing the nature of the change required to warrant further consideration of a fresh application (at 88,3680) said:
The words in any event are not words of necessarily strict dictionary definition. In D and Y (1995) FLC 92-581 their Honours of the Full Court made a finding that a trial judge has a discretion whether to deal with a change of circumstances as a preliminary issue or to proceed to a full hearing. Their Honours indicated that in the circumstances that prevailed in that case, that is, a nine day hearing a little more than two years previously, that a judge would be extremely loath to reopen the issue of custody, except on strong grounds. The word strong (sic) in that case is a departure from substantial or significant as used in earlier cases. It indicates clearly what is required. The change or fresh circumstance must be such that upon becoming advised of it and being satisfied of its existence, a court would be left in no doubt that it was necessary to relitigate the parenting issue in dispute between the parties. That is not to say that a court must be satisfied that the fresh or changed circumstance would result in a change to the orders. It merely indicates that the change or fresh circumstance must be such that if taken into account there is a real likelihood that a change may follow.
In G & G [2000] FamCA 12, Holden and Jerrard JJ commented that:
The point emphasised in each decision is the same, namely whether the Court is satisfied, as the learned Judge in the instant case correctly described it, that the children's best interests are being served by further litigation on a matter already decided upon and already the subject of Court orders, whether made by consent or after a contested hearing.
25.We consider it helpful in this context to have regard to the remarks of the majority judgment of the High Court in CDJ v. VAJ (1998) at 23 Fam LR 755; FLC 92-828. In that case, the High Court heard an appeal in which special leave had been granted to consider the proper basis on which the Full Court should exercise its discretion, granted by s. 93A(2) of the Family Law Act 1975, to receive further evidence on questions of fact on an appeal. In the course of their judgment, the majority remarked in para. 118 of their judgment (at 85,449): "The need for caution is particularly great when an order for a change in the residence of children has been made and the appellant seeks to tender further evidence pointing to changes in circumstances, outlook or apparent welfare. In all but the most ideal of circumstances, some time will be taken by children to adapt to their different situations. So too the public and private interest in the finality of litigation must be given some weight even in cases of this kind. The important private interests of children are unlikely, save in special circumstances, to be served by frequent displacements of them and the uncertainty of prolonged and repetitive proceedings".
26.These remarks stress the extent to which the interests of children are ill-served by constant litigation about their residence. They reflect observations made in Rice and Asplund (at Fam LR 572) that, change being an ever-present factor in human affairs, the Court should not lightly entertain an application to reverse an earlier custody order, and should do so only where there was some changed circumstance or a new factor arising. To do otherwise would be to invite endless litigation.
All of the authorities cited above were determined prior to the Family Law (Shared Parental Responsibility) Act 2006 (Cth). This is the legislation by which these proceedings must be decided. Justice Warnick in SPS and PLS (2008) FLC 93-363, sitting alone as the Full Court on appeal from a Federal Magistrate, recently considered the rule in Rice and Asplund in the context of the 2006 amendments to Pt VII of the Family Law Act. His Honour noted para 44 in Pt 2 of Schedule 1 to the Family Law (Shared Parental Responsibility) Act 2006 (Cth) which provides that “the amendments made by this Schedule are taken not to constitute changed circumstances that would justify making an order to discharge or vary, or to suspend or revive the operation of, some or all of a parenting order that was made before commencement” and held that:
86.This provision and the position that the rule in Rice and Asplund is merely a manifestation of the best interests principle, establish that the rule survives. However, its application must recognise the new legislative content in which the question is now posited and answered. This includes the objects (and underlying principles) of the Part, set out in s 60B and s 61DA which provides that, when making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child. The presumption may be rebutted, but if it is not, then under s 65DAA, the court must consider whether the child spending equal time with each parent would be in the bests interests of the child or, if such an order is not to be made, whether the child spending substantial and significant time with each parent would be in the best interests of the child.
87.While it is clear that of themselves the legislative changes introduced by the 2006 Act do not constitute a change of circumstance for the purpose of the Rice and Asplund rule, a change in relevant facts may take on a significance because of the legislative amendments that it would not have possessed before them.
His Honour emphasised the psychological damage that ongoing proceedings have on children:
57.In In the Marriage of McEnearney(1980) FLC 90-866, Nygh J moved beyond the general position of public interest in the finality of all litigation, to purposes more specific to family law. He said (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.
As is apparent from Warnick J’s decision and in the cases discussed above, the rule in Rice and Asplund is an application of whichever statutory formulation of the “best interest principle” operated at the time the proceedings were determined. It is impermissible to determine a parenting application, as for example, compared to striking it out for want of prosecution or some other procedural defect, other than by reference to the relevant statutory provisions. Rather in a Rice and Asplund preliminary hearing the application is determined when “…assuming the evidence of the applicant is accepted, there is an insufficient change of circumstances shown to justify embarking on a hearing.” Thus although the evidence may suggest that continuation of the proceedings may involve an appreciable risk of psychological harm to the children and/or the parties, that factor alone is insufficient to enable the Court to dismiss the application. It must be considered along with the other relevant statutory considerations in the manner mandated by appellate authority.
The authorities make it clear that the party applying for the variation or discharge of an existing order bears the onus of establishing that there has been a substantial change in circumstances to justify the variation or discharge of the orders. Saad v Saad (1993) FLC 92-332.
Applying the law to the facts
The parties each relied on two affidavits. The Independent Children’s Lawyer relied upon the Court Expert’s report. Given the nature of the hearing, neither party was cross examined. The parties and Independent Children’s Lawyer agreed that the mother’s dismissal applications would be determined upon the basis that the Court accepted the father’s evidence. The Court would also accept the mother’s evidence except where it conflicted with the father’s. As to this latter point, to a considerable extent the mother’s evidence recounts conversations with the children which, if accepted, would persuade the Court that the father frequently discusses these proceedings with them and attempts to align the children to him. The father denies doing so and, for the purposes of this hearing, the Court accepts his denials. This is notwithstanding that during his interview with Dr S, J discussed his belief that the mother had “spread lies” about the father which was why the father moved to Darwin. During the interview J demanded that the mother discuss the proceedings with him and tell him her side of the parenting dispute. When the mother refused to do so, J reinforced his awareness of the present situation reporting on discussions with the father during the preceding school holidays. Although this evidence lends support to the mother’s evidence and submissions, Dr S was not cross examined. He interviewed the mother but not the father. These factors, it was submitted on the father’s behalf, do not render the father’s denials inherently incredible and require that the Court accepts, for this hearing, the father’s evidence. I agree.
Summarised, the effect of the father’s evidence is that both children tell him they want to live with him. On one occasion, J was highly distressed on the day he was due to return to the mother. This involved J yelling at his father until, when they boarded their aeroplane in Darwin, J became silent. From that point until they landed, flying via Sydney, J refused to speak to the father. He vomited on and off throughout the journey. Shortly before the father delivered J to the mother at the airport, J apologised for his behaviour and explained: “This is because I have to go to mummy’s.”
The father says C’s views are as strong, but are not demonstrated through similar behaviour.
Both children complain they are mistreated and neglected by the mother. For example, the children claim they eat junk food with their mother and are not expected to maintain a balanced diet. When with the father both children require encouragement to eat home cooked meals as a family. Although the father has encouraged the mother to facilitate the children’s involvement in physical and extra-curricular activities on the basis he would meet the costs associated with her so doing, the mother has failed to do so until he raised these matters during these proceedings. Both children remain unfit and J is still obese.
By comparison, the father’s evidence is that when the children are with him he encourages physical activity and both boys enjoy swimming, cricket and soccer.
During submissions, the father’s counsel emphasised the children’s behaviour. The father says in his home J demonstrates some autistic behaviour but generally both children are well behaved towards each other and others in the home. C has complained to the father that, in his mother’s home, J is physically violent to him and to the mother. For his part, the father has overheard the sounds of the boys hitting and crying when speaking to them by telephone.
In mid 2006, J’s school recommended that the mother has him assessed by a psychiatrist. In accordance with the recommendation, the mother attended Dr M, a Child and Adolescent Psychiatrist attached to Westmead Hospital. The mother provided the father with Dr M’s report, which is dated 23 October 2006, in January 2007. Although the parties and Dr S make reference to this report, it is not in evidence. However, it appears common ground, and if not it is the father’s evidence, that from this report, it was apparent to Dr M that J demonstrated significant aggression at school and in the home. Dr M reported upon J’s attacks upon his mother and his brother when distressed.
In a similar vein, Dr S commented on J’s poor behaviour during his assessment. He said:
When [J] did not have his needs met immediately, he was observed to back chat, raise his voice with demands to his mother, place his feet in her face and at times appeared to kick his feet towards her head in a threatening manner. He often did this with a smile on his face and appeared to know very well that this was not appropriate. [J] became particularly oppositional and agitated when he raised issues to do with his father. He was noted to be very upset about his mother allegedly spreading lies about his father. When I asked about this further [J] stated that his mother had spread lies about his father, which allegedly resulted in [the father] moving to Darwin to escape such lies.
As earlier referred to, it is the father’s case that J does not behave in this manner when with him. J, it is said, is amenable to the father’s direction and, for example, the father has not needed to threaten to wash his mouth out with soap or do so, in response J’s bad language. Although the mother denies it, both children have told the father she has done so.
The parties agree that during 2004 J’s behaviour at school deteriorated. When strategies aimed at improving J’s school behaviour failed, in 2005, the father recommended that the parties change J’s school. The mother refused to do so and in 2005 J’s behaviour continued to deteriorate. During 2005 J was frequently placed on detention and was often in conflict with other students. During 2006, J had 73 confirmed days absence from school. When he attended school, he frequently attended for no more than 30 minutes in a day. In early 2007 J was suspended from school for 21 days and three more on 25 July 2007. On 21 August 2007 J was suspended from school for 20 days for hitting a teacher and another student with an umbrella.
It is common ground, that in early 2008, the mother changed J’s school. The evidence suggests J’s behaviour at school has improved somewhat. However, it is common ground that J attends school from 9.00 am through to 11.20 am, when recess ends. The father says that both in terms of school attendance and school performance J is under achieving. He claims because he has a less conflicted relationship with J than the child has with his mother, he is better equipped to ensure J’s regular and appropriate attendance at school and achieve intellectually appropriate grades.
In a similar vein, the father says that since the last parenting orders were made, he has repeatedly requested that the mother ensure J’s regular and timely attendance upon appropriately qualified health care professionals. For example, encouraging her to ensure J receives speech therapy, occupational therapy and the like. The mother’s evidence makes plain that J is presently participating in therapies of the type for which the father contends. His point is, however, that he says the mother routinely fails to heed his advice and therapeutic intervention commenced much later than was appropriate. In essence, his evidence is critical of the mother’s lack of attention to pivotal aspects of J’s physical, educational and psychological needs.
The father raises no issues concerning C’s school attendance. He deposed to conversations with C which he says show C does not receive appropriate assistance with homework. This lack of attention to homework, the father says was commented upon in C’s school reports. Although C is achieving appropriately academically, the father believes C could perform even better academically if his educational needs were better supported at home.
When the above matters are taken into account, the father says he has presented sufficient evidence of changes to the children’s circumstances since December 2004 that entitle him to continue his application.
Between them, the mother’s affidavits respond to the father’s evidence and expand on her relationships with their children and the manner in which she cares for them. They are replete with detailed conversations with J and C in which both children discuss their confusion arising from the parental conflict. The children variously say they want to live with the father, with their mother or be free from any notion that they must choose between their parents. At different times, but reasonably frequently, the children are distressed by the parental disputation and seek the mother’s solace. From time to time when upset, one or other of the boys, sometimes both, seek to sleep in the mother’s bed.
The mother explains in great detail her attempts to manage J’s behaviour and bring it within reasonable social norms. The mother gives examples where she is successful and where her attempts fail.
Just as the father said the children are reluctant to return to the mother, she gives evidence of instances when one or both have been reluctant to travel to Darwin. On one occasion J’s behaviour against travelling was so severe the airline refused him permission to board. With her support and encouragement, the mother was able to have J fly to Darwin the following day.
Concerning J’s school attendance and difficulties, the mother provides less detail than the father. However, she agrees J experienced difficulties of the type which she explains as her rationale for moving him to P Primary School this year. Knowing the difficulties the mother was having with J educationally, she expresses dismay that the father purchased the children T-shirts on which was written: “School is prison”.
The mother challenges the father’s evidence that she has delayed obtaining necessary assistance for J and considers it unlikely the father would be able to manage J without the level of conflict she experiences. In submissions, the mother’s solicitor pointed out the father has never been required to have J attend school and, if he had, the probability is he would experience the same problems she has.
Before permitting the father to proceed with his application, the mother says the Court must consider the extent to which the father’s conduct has contributed to the children’s views, any difficulties perceived in her relationship with the children and J’s poor school attendance and deteriorating behaviour. The mother says both children were upset when the father moved to Darwin and the frequency of their contact with him dramatically reduced. In a similar vein she says after the father moved, his discussions with the children resulted in them believing they could, or should, decide whether to continue living with the mother in P or move with him to Darwin. In written submissions, the mother said: “It is submitted that it would be obviously inappropriate for a party to litigation to create a situation where a child was traumatised by that party’s behaviour and then claim the consequences of that trauma as a ground for re-agitating a parenting dispute.” As phrased the submission could be deceptively attractive. The point however is that parties’ and children’s circumstances are not static and events can occur over which adults have little control and requires difficult decisions. A family’s circumstances may be improved, for example, by accepting an offer of employment even although doing so involves major disruption. Where parents are separated, in such a situation it is unremarkable that children may react and decide they wish to move with the relocating parent. If the mother’s approach to the Family Law Act was adopted the Court, if there were existing parenting orders, could not deal with any resultant dispute. In my view this imposes an impermissible gloss on s 60CC and does not reflect the law. While I accept the reasons for a family’s changed circumstances may be relevant, it would be wrong to conclude that the party responsible for the changed circumstances is unable to seek the Court’s assistance in resolving any consequent disagreement.
Nor do I accept the mother’s contention that somehow the father’s evidence is deficient because much of it is without corroboration. For a Rice and Asplund preliminary hearing the father’s case is not weakened by the absence of corroboration. On its face, the father’s evidence is sufficient to show a substantial and relevant change in circumstances since the 2004 orders were made.
In the event the Court was satisfied the father had demonstrated a substantial change in circumstances, the mother submitted that the Court would nonetheless dismiss his application because allowing it to continue is contrary to the children’s best interests. In support of her contention, the mother emphasised the children’s distress evident in their numerous discussions with her regarding choosing between their parents. Concerning J, she referred to a number of statements the child has made in which he wished himself dead. She spoke of his increased risk taking behaviour and behaviour which potentially evidenced suicidal ideation. Simply put, the mother is fearful for J if the proceedings continue. As a lesser but nonetheless significant factor, the mother gives evidence of her modest means and her inability to meet further legal costs. If the matter proceeds to trial, the mother submits she: “Will be in a situation where she will be forced to sell her home as a consequence of the proceedings. That is clearly not in the best interests of the children if that were to occur.”
The mother contends that if the effect of the rule in Rice and Asplund is that the father is able to continue his parenting proceedings, because Rice and Asplund is subsidiary to the overriding consideration that the welfare of the child is of paramount importance, the Court will nonetheless dismiss his application. With respect to the mother’s argument the submission does not correctly state the law. The rule achieves an outcome for children which promote their best interests by the application of statute. There is no alternate rule of general application which enables a court exercising Family Law Act jurisdiction in a parenting case to dismiss it for the reasons argued by the mother. Accordingly, the mother’s application in a case filed 26 August 2008 will be dismissed.
Because I am concerned about the effect of these proceedings upon the children, I will favourably entertain an application that the final hearing is expedited. Obviously scheduling expedited hearing needs to take into account the time required for the parties and children to participate in a family report.
In the event a party or the Independent Children’s Lawyer seeks an order for the payment of their costs as a consequence of this hearing, they must do so in writing within 28 days. So as to avoid further disputation and consequent costs, an application for costs shall include the quantum sought.
For these reasons I make the orders identified at the start of this judgment.
I certify that the preceding eighty-five (85) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan
Associate:
Date: 12 November 2008