Carter and Greenhill (No 2)
[2019] FamCA 721
•4 October 2019
FAMILY COURT OF AUSTRALIA
| CARTER & GREENHILL (NO. 2) | [2019] FamCA 721 |
| FAMILY LAW – CHILDREN – Consideration of Rice v Asplund threshold – Where no basis for permitting parenting proceedings to be recommenced by the father after previous protracted parenting proceedings and final judgment – Where father’s application dismissed – Where directions made as to costs submissions. |
| Family Law Act 1975 (Cth) |
| Carter & Greenhill [2015] FamCA 1047 Elmi & Munro [2019] FamCAFC 138 Prewett & Mann [2013] FamCAFC 130 Rice & Asplund (1979) FLC 90-725 |
| APPLICANT: | Mr Carter |
| RESPONDENT: | Ms Greenhill |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Seric |
| FILE NUMBER: | SYC | 8235 | of | 2015 |
| DATE DELIVERED: | 4 October 2019 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 17 July 2019 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Mr White of Brendon Dunstan Solicitor |
| COUNSEL FOR THE RESPONDENT: | Mr Coleman SC |
| SOLICITOR FOR THE RESPONDENT: | Blackwell Short Lawyers |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW Sydney Central Family Law |
Orders
That the father’s Application initiating proceedings be dismissed.
That the proceedings be removed from the pending cases list.
That any application for costs be made by way of written submission filed and served within one month from this date with any submissions in response to be filed and served within six weeks from this date.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Carter & Greenhill has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: SYC 8235 of 2015
| Mr Carter |
Applicant
And
| Ms Greenhill |
Respondent
REASONS FOR JUDGMENT
The present application before the Court relates to parenting proceedings between the father, aged 38 years and the mother, aged 35 years, in relation to their three children B born in 2005, C born in 2006 and D born in 2002 (“the children”).
The applicant father has filed a fresh parenting application seeking orders that, in summary, would result in the final orders of Tree J (14 December 2017 Carter & Greenhill [2015] FamCA 1047) being discharged and the children living with the father, spending every third weekend with the mother and the father holding sole parental responsibility for the children.
In a Case Outline dated 15 July 2019 the father amended his orders sought and no longer pressed his application for the children to live with him and instead sought a discrete order that the two oldest children’s enrolment at S School be as full time boarders at the college and that the children spend each alternate weekend with the father and any weekend time that the mother does not spend with the two youngest children the father shall be permitted to spend with them.
The mother has filed a Response seeking a dismissal of the father’s application, that he be restrained from filing any future applications without leave of the Court and that he pay her costs on an indemnity basis.
Procedural history
The parties have a long litigation history dating back to 2015 at which time the father filed an Initiating Application in the Federal Circuit Court of Australia.
A five day final hearing was conducted in October 2017 and judgment was delivered on 14 December 2017 by Justice Tree (Carter & Greenhill [2015] FamCA 1047) as to the final parenting arrangements for the three children. In summary, these orders relevantly provided:
a)That the mother have sole parental responsibility for the children;
b)That the children live with the mother;
c)That the children spend time with the father:
i)Every third weekend during school term time;
ii)For ten nights of the Term 1 and 3 school holidays;
iii)For four nights in the term 2 school holidays, and;
iv)for half of the long summer holidays;
d)Other specific orders in relation to communication between the parents, ability to obtain school reports and other documents, facilitating the attendance of each parent at the children’s school and changeovers;
e)There were also a number of orders relating to the father undertaking hair follicle testing, urinalysis drug screening and restraining him from being under the influence of any illicit substances.
The father appealed the orders of his Honour in January 2018 and filed a Stay Application in February 2018. On 15 May 2018 the stay application was heard by Tree J. Judgment was reserved.
On 26 June 2018 the father withdrew his Appeal and Stay application and a costs order was made against him for the mother of $10,000. It is the mother’s contention that this amount is still yet to be paid.
On 14 December 2018 the children spent time with the father pursuant to the final orders and refused to come back into the mother’s care on 24 January 2019.
On 29 January 2019 D returned to live with her mother in M Town.
On 30 January 2019 the father filed an Application in a Case seeking interim orders that the final orders be stayed in relation to the two youngest children, the boys, that they live with him and that an Independent Children’s Lawyer (“ICL”) be appointed.
On 12 February 2019 the mother filed her Response to that Application in a Case seeking a recovery order for the two youngest children and that the father’s time with the children be suspended pending further order. Subsequently, the boys returned to live with her following an interim hearing.
The mother later filed an Amended Response to the father’s Application in a Case on 2 April 2019 seeking that the father’s Application in a Case be dismissed and that the father pay her costs.
On 13 February 2019 the father filed his Initiating Application seeking to vary the 2017 final orders. The mother’s Response seeking that this application be dismissed was filed on 7 May 2019.
On 20 February 2019 following an interim hearing before a Senior Registrar the final orders were amended so that changeover was to occur at the oldest two children’s school on 3 March 2019, being either S School or T School, an ICL was also appointed. On this occasion the Senior Registrar noted that the mother intended to enrol the two youngest children in full time boarding at S School.
The matter came before this Court on 20 May 2019 with directions made that the parties file written submissions as to the threshold Rice v Asplund issue and that issue was listed for hearing.
The father’s application came before the Court on 17 July 2019 for hearing as to this threshold issue more often referred to as the “rule” in Rice & Asplund (1979) FLC 90-725.
In Prewett & Mann [2013] FamCAFC 130 the Full Court succinctly considered the “rule” as follows:
THE RULE IN RICE & ASPLUND
7.The “rule” in Rice & Asplund refers to remarks made by Evatt CJ in that case at [78,905-06]:
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 … 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 …
8. Evatt CJ continued:
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.
9.The rule is a manifestation of the best interests’ principle and founded on the notion that continuous litigation over a child or children is generally not in their interests (Langmeil & Grange [2013] FamCAFC 31). The application of the rule is connected to the nature and degree of change sought to the earlier order (SPS & PLS (2008) FLC 93-363).
10.As to the application of the rule, the Full Court in Marsden v Winch (2009) 42 Fam LR 1 said:
50.Nevertheless, there are significant changes that occur and which do require a court to reconsider decisions previously made. Whether in a particular case a court should be willing to embark upon another hearing concerning the child and parent, or whether to do so would itself be demonstrably contrary to the best interests of the child, is a decision to be made in each particular case. How is that decision to be made? The court must look at:
(1)The past circumstances, including the reasons for the decision and the evidence upon which it was based.
(2)Whether there is a likelihood of orders being varied in a significant way, as a result of a new hearing.
(3)If there is such a likelihood, the nature of the likely changes must be weighed against the potential detriment to the child or children caused by the litigation itself. Thus, for example, small changes may not have sufficient benefit to compensate for the disruption caused by significant re-litigation.
11.Although the provisions of Part VII of the Family Law Act 1975 (Cth) (“the Act”), which governs determination of the applications before his Honour, have, subsequent to Rice & Asplund, undergone significant amendment, there is no doubt that the principles established in that case and the subsequent line of authority applied to these proceedings.
The law as cited above was confirmed recently by the Full Court in Elmi & Munro [2019] FamCAFC 138:
24.There is no scope for doubting the correctness of Rice and Asplund in any event. It has been explained and applied in many Full Court decisions, including Langham & Langham (1981) FLC 91-014; Newling and Newling (1987) FLC 91-856 (“Newling”); Bennett and Bennett (1991) FLC 92-191; Miller & Harrington (2008) FLC 93-383 (“Miller & Harrington”); SPS and PLS (2008) FLC 93-363; Marsden & Winch (2009) 42 Fam LR 1; Langmeil & Grange [2013] FamCAFC 31; Poisat & Poisat (2014) FLC 93-597 (“Poisat”); Carriel & Lendrum (2015) FLC 93-640; Tindall & Saldo (2016) FLC 93-727.
25.In Poisat, the Full Court (Strickland, Murphy & Austin JJ) said at [13] that the principle “is intended to apply universally in the sense of applying to every case in which final parenting orders are sought to be discharged or varied subsequently”.
Background
The history of the parties’ relationship was considered in the Reasons for Judgment of Tree J (Carter & Greenhill [2017] FamCA 1047) and have been included here where relevant:
[4] After finishing boarding school, the father himself returned to F Town, and commenced work at Property K. It was whilst he was working there, and aged 22, that the father met the mother, and commenced a relationship with her.
[6] After the parties’ relationship had continued for about 12 months, the mother moved to F Town. In June 2004 she obtained employment there in administration, and in July of that year, the parties commenced cohabitation in F Town.
[7] B was born in 2005, after which the mother took three months of unpaid leave to care for him. The father continued to work on Property K.
[8] The mother returned to work, initially for two days per weeks, but then from December 2005, full-time.
[9] On 1 August 2006 the parties purchased the former matrimonial home at E Street F Town. Then in 2006 C was born, after which the mother took 32 weeks of maternity leave. The father again continued in full-time employment on Property K, save that by then it appears as though there had also commenced an aspect of the Property K operation which saw the father regularly driving trucks carting cattle to and from Property K, from distant locations. As a result of that, the father commenced to take amphetamines to help keep him awake on the long journeys. I say that it was likely at about this time that the father commenced taking those drugs because, in October 2012, he told Dr I, a psychiatrist who examined him, that he had been using amphetamines “for the past five years.”
[10] In about 2010, the mother had an extra-marital affair, and later confessed this to the father who, it transpired, admitted to also having had an affair. This appeared to rekindle the parties’ relationship, and in 2011, they married. In evidence before me were photographs from the wedding, which show both C and B (then aged four and six respectively) very excited and happy at their parents’ marriage.
[11] The mother says that after the marriage, she first began to observe changes in the father’s behaviour. He became increasingly paranoid, including expressing a belief that there were people outside their house, checking the roof of their house for cameras, and expressing fears that the mother was being unfaithful to him.
[16] In 2012 D was born.
[17] Unfortunately the parties’ relationship thereafter progressively deteriorated. The father continued to be obsessed with the mother’s alleged infidelity, and would take to looking through her mobile phone trying to find evidence from which he could accuse her. Ultimately on 1 May 2014 the parties finally separated. Although initially the mother and the children went to live with her sister, shortly thereafter, the father moved out of the former matrimonial home and the mother and children returned. The parties have not cohabited since.
Post-separation
[18] After separation, the mother continued in full-time employment in F Town, and the father remained working on Property K. Initially the relations between the mother and paternal grandmother remained cordial, and the paternal grandmother would, from time to time, assist the mother with the care of the children, as would other paternal family members.
[19] After separation, the father began to regularly telephone the mother. In her evidence, she said he would call her up to 30 times a day, perhaps as early as 3.00 am or 4.00 am in the morning. He remained obsessed with her alleged infidelity, and wanted her to admit to it. Further, there was an occasion when, whilst the mother was away from the home, the father apparently obtained entry to it, and accessed the family’s wedding album and the mother’s wedding dress. The wedding album was subsequently located on the front driveway with a tyre mark across one of the pages. The wedding dress was located on the ground nearby. It seems likely that the father was responsible for that.
[20] On another occasion, the father obtained entry to the mother’s home, and smashed her television and computer screen. He later bought her new items to replace them.
[21] On 12 September 2014 the mother first reported the father’s harassing of her to New South Wales Police. She had resisted doing so prior to then. Police subsequently applied for, and obtained, a temporary apprehended violence order against the father.
[22] On 6 November 2014 the father was admitted to hospital after a stick penetrated his leg. The facts surrounding that incident are not clear. In evidence before me the father said he was only admitted to hospital three days after the stick had penetrated his leg, and after he had sourced some amphetamine to assist with pain relief. On the other hand the New South Wales health records in evidence before me, note that “patient admits he took amphetamine at the time of incident.” Further, those notes say that the father was admitted on 6 November 2014 (a Thursday) but the stick had penetrated his leg on Monday night. That is consistent with the father’s version of waiting three days and ingesting amphetamine as an analgesic, although Dr I, in his oral evidence, said that amphetamine in not an analgesic.
[23] Ultimately, nothing really turns upon whether the father was under the influence of amphetamine at the time of the episode, or took it subsequently for pain relief or both; the simple fact is that the father admits to then taking speed.
[24] On 20 November 2014 the parties agreed to a parenting plan. It provided for equal shared parental responsibility in relation to joint decision making for the children, who would live with the mother, but spend two out of three weekends with the father, together with the majority of school holidays.
[25] On 4 January 2015 the father attended the mother’s home by prior agreement, but then used the opportunity to start questioning the mother again about her personal life. This was in breach of the apprehended violence order, and the father was in due course charged and convicted for that breach, and received a six month bond in consequence. However, unfortunately, that did not stop him from continuing to telephone the mother on occasion, and leaving text messages for her.
[26] On 6 April 2015 the father again attended the mother’s home, for the purposes of retrieving the children for school holidays. An argument ensued and the father refused to leave. The mother then contacted the police, but by the time they had arrived, the father had left. Later the police intercepted the father with the children in his car, and the father told the police that the mother was “mentally unstable and unfit to care for his children.”
[27] On 23 April 2015, a final apprehended violence order was made against the father, for a period of 12 months. However again, the father continued to contact the mother, contrary to the order. For instance, on 16 May 2015 he called the mother four times, left two voice messages and sent seven text messages; the following day he phoned the mother on eight occasions, left six voice messages and sent 20 text messages.
[28] The next day (the 18th) he called the mother 19 times and left eight voice messages and sent five text messages. The next day he called the mother seven times and left four voice messages. The following day he made six telephone calls, left eight voice messages and sent 18 text messages.
[29] Amongst the matters which the father was trying to communicate with the mother about, was his concern that he had possession of a photograph of a woman, who he believed was the mother, with a man, with both of them apparently at least semi-nude. He was plainly somewhat obsessed with this, and wanted her to confess that it was her in the photograph (which the mother denies). At all events, that led to him, on 20 May, when attending the mother’s house to collect the children, saying to her “you are a fucking bitch I know that was you in the photo.”
[30] All of this led to the father being charged with five breaches of the apprehended violence order, and with one offence of intimidation. Subsequently the father was arrested and bailed. He later pleaded guilty to those offences.
[31] In about June 2015, the mother became aware that a job similar to that which she occupied in F Town, was becoming vacant in M Town. She discussed that, and the prospect of moving to M Town, with the paternal grandmother. She again raised the subject in September of that year, including having a discussion with the paternal grandmother (with whom she was then still on good terms) about where the children might go to school in M Town. She says that she asked the paternal grandmother to pass that information on to the father.
[32] The following month the mother made a formal application for the job and was interviewed, but told the paternal grandmother that she did not believe that she had performed well in the interview. As it transpired, in fact the position was offered to her. However prior to her accepting it, on 24 November 2015 the father’s solicitors advised that the father did not consent to the children relocating to M Town. Nonetheless on 7 December 2015 the mother accepted the position in M Town, and resigned from her position in F Town. Plainly, when she did so, she was on notice that the father would not consent to the children relocating. She says that she had instructed her solicitors to commence proceedings seeking permission to relocate, but in fact the father commenced these proceedings first. However, as it transpired, no early court date in the Family Court could be obtained, and so the father proceeded to seek interim parenting orders in the Local Court at L Town, which orders were made in January 2016. Those orders did not permit relocation of the children to M Town. The mother’s subsequent appeal from the Local Court decision was dismissed.
[33] In fact seemingly in December 2015, the mother left for M Town without the children, and has remained living there since.
[34] Under the interim orders ultimately made in the Family Court, the parties had equal shared parental responsibility for the children, who lived with the father, but spent alternate weekends with the mother, together with one half of school holidays. This required the parties and the children to undertake extensive travel between F Town and M Town. The mother obtained assistance with that from the maternal grandmother who lives in L Town, which is en route between the two towns, and changeovers were effected at H Town and G Town.
[35] Under those interim orders, the father was obliged to submit to random drug tests from time to time. On 26 May 2016, the father first tested positive for amphetamine and methamphetamine in a hair follicle test required of him under those orders. Then on 28 June 2016, the father again tested positive to codeine, amphetamine and methamphetamine; importantly the report noted that, in relation to methamphetamine, “this concentration is indicative of more than a single use of this drug in the three months covered by the testing period.”
[36] Although initially the father claimed only to have used amphetamines once in 2016, during the course of his oral evidence he conceded a second occasion. He nonetheless denied any use of methamphetamine, seemingly holding the view that it was a more dangerous drug than amphetamine. How therefore the father tested positive to methamphetamine is, on his evidence, unclear.
[37] As time wore on, unfortunately the communication between the paternal grandmother and the mother worsened. Sadly, that led to the communication between the respective grandmothers also deteriorating, and ultimately ceasing. From about mid to late 2016, it appears as though there have been no words exchanged between the adults at changeovers in any location.
[38] Also it appears clear that the boys became progressively resistant to spending time with the mother, and began to voice a disinclination to do so.
[39] During this period, as I shall discuss in detail later, the father and paternal grandmother failed to convey to the mother significant information relating to the children’s medical issues, educational issues, and extra-curricular activities. The mother began to feel that she was being marginalised and excluded from the children’s lives, by being deprived of this information.
[40] On 20 July 2017, the father underwent a further hair follicle test, which detected Phentermine was present. It is not in dispute that Phentermine, also known as Duromine, has an effect similar to amphetamine, albeit it is a legal prescription drug used for weight loss. The father says that his general medical practitioner prescribed it for weight loss, and that indeed, whilst taking it, he lost about 10kg in weight. He denied that he knew that it was akin to amphetamine, or that it is commonly known as “legal speed.” A further urinalysis on 11 August 2017 again showed Phentermine in the father’s body. That said, in fact the request was made of the father on 8 August, and therefore the fact that the specimen was taken on 11 August meant that it was outside of the 48 hour court ordered time frame.
[41] On 15 August 2017 police executed a warrant at Property K. They seized a number of items, including sheep ear tags and vendor declaration books, which are designed to record the sale and movement of livestock. They also located and seized a bulldozer, and a number of unregistered firearms. Subsequent investigations led to both the father and paternal grandfather being arrested and charged. The father was charged with stealing livestock, and with threatening to cause injury or harm so as to prevent information being provided to police, and further, with the use of a carriage service to menace, harass or offend. The paternal grandfather was charged with stealing livestock, stealing a bulldozer, and possessing unregistered firearms.
[42] The value of the livestock that are said to have been stolen is in excess of $78,000.
[43] The other two charges against the father arise from the fact that, unbeknownst to the father, at about this time, police had a telephone intercept on his phone. The two charges relate to his sending messages to a person who proved to be a police witness against him in relation to the sheep stealing charge. The first was a text message, that simply comprised the image of a fist. The father says he only sent that message in an effort to try and find out who had caused police to become involved and investigate offences against him. He denies that he knew the person whom he sent it to was in fact involved. The second relates to the father sending a winking face to the same person, immediately after police had rung him, asking him to come into the F Town Police Station.
[44] According to the police Statement of Facts which is in evidence before me, the person who received both of these messages felt threatened and intimidated when they received them.
[45] After being charged, initially the father and paternal grandfather were refused bail, but it was granted the next day.
[46] On 29 August 2017 the father again submitted to urinalysis testing. That report suggested that the urine sample was dilute, and its chemical analysis was “not consistent with human urine.” The father denies that he substituted any other type of urine for his.
Circumstances Following the First Hearing
The living arrangements of the children
Following the final orders of Tree J the children resided with the mother in M Town and spent time with the father every third weekend and for ten days of each of the shorter school holidays without incident.
In accordance with the final orders, the children spent time with the father in early January 2019 and were due to return to the mother’s care on 24 January 2019. However, the children refused to go back into the mother’s care.
On 25 January 2019 the parties attended a location to effect changeover of the children. Though the youngest child D went with the mother, the two oldest children refused to go into the mother’s care.
The middle child was due to commence high school in the coming weeks and had been enrolled at T School in P Town, which was relatively close to the mother’s home and was the school that his older brother also attended.
On 1 March 2019 the father indicated to the mother that the older children wished to attend S School at Q Town and that the father had made enquiries and there were available places for the boys. The paternal family had connections to this school as the father had attended there when he was in high school.
On 3 March 2019 the mother agreed that the children should be enrolled at S School. The children attended a school open day and intake interviews on 10 March 2019 and commenced school as full-time boarders on 11 March 2019. The children all spend time with the father every third weekend and spend all other weekend time with the mother and the youngest child.
On 14 March 2019 the father sought to remove the oldest children from school in order to spend time with them at his farm. However, as the children were to be spending time with the mother in accordance with the final orders the mother objected and went to the school on 15 March 2019 to commence her weekend time with them. On this date the oldest children refused to go with the mother and the school telephoned the police. The principal of the school informed the boys that they had to go with the mother or their enrolment at the school would be jeopardised. As such they spent weekend time with the mother. During this incident the middle child told the police that the mother had hit him. The police have investigated this allegation and referred the matter to FACS. There is no evidence to support this allegation and it appears that the investigation has been closed.
Both parties report that the children are enjoying their new school and doing well.
It is the father’s case that the living arrangements of all of the children have changed since the 2017 final orders to satisfy the rule in Rice v Asplund. As the two oldest children are now attending boarding school and the youngest child, as a result, is no longer living with her brothers. He submits that the mother’s proposed intention to reduce the two oldest children to being boarders for five days per week would be disruptive to them.
It is the mother’s case that there have been no changes in circumstances arising since the 2017 final orders which were not anticipated by Justice Tree in his judgment. Tree J anticipated that the children would be resistant to living with the mother, that the father wanted the children to be full time boarders at S School and that this would likely give rise to long term sibling separation. It is submitted on behalf of the mother that Justice Trees’ Reasons contemplated the father’s proposal that the children board full-time at S School and found that it would be in the children’s best interests for the mother to have sole parental responsibility for the children, he states at [154] “I will not make an order requiring the children to attend any particular school; the mother may chose it in the exercise of sole parental responsibility.”
The mother clearly has done so.
As such it was submitted on behalf of the mother that the father is simply re-agitating issues which had previously been determined on a final basis by the Court. Further, it is properly contended that the father had an opportunity to appeal the 2017 final orders, which he did not pursue and that this application is little more than a new attempt to agitate the same issues.
The ICL properly submits that the children’s new living arrangements do not amount to a significant change in circumstance justifying the re-opening of the proceedings. Firstly, because Justice Tree clearly made an order giving the mother sole parental responsibility for the children, which undoubtedly carries with it the ability to make changes to the children’s schooling without consultation with the father. Secondly, because the father is inconsistent in his contention regarding the children attending boarding school. While, he contends that the oldest children’s enrolment as boarders at S School is such a change in circumstances to satisfy the rule in Rice v Asplund he also seeks that this such circumstance as facilitated by the mother remain in place.
On each of the parties’ evidence it is accepted that the boys are enjoying school and their enrolment as boarders does not encroach on the children’s time with the father pursuant to the final orders or the mother’s exercise of sole parental responsibility.
The application of the rule in Rice v Asplund is closely connected with the nature of the degree of change sought to the earlier order. This is of particular importance here as it is not the father’s proposal that the boys schooling arrangements change. He deposes in his affidavit that the boys are “settled now at [S School]… changing the current status quo of B and C’s fulltime enrolment will upset them and is not in their best interests”. The current arrangements are reflective of the father’s current position and the position he held at the time of the final hearing. The present arrangements for the boys were properly a matter for the mother who holds sole parental responsibility.
There is no cogent nexus to between the discrete change in circumstances and the orders sought by the father and, therefore, it cannot be argued that the threshold in Rice v Asplund is met such as to require the Court to consider afresh how the welfare of the children should best be served
The interim orders of Senior Registrar Campbell dated 20 February 2019
The father somewhat vaguely submits that the notation of Registrar Campbell on 20 February 2019 which states “the court notes that the mother will enrol B and C as full time boarders at [S School] School commencing immediately but if no place is available for them, at T School at P Town as full time boarders”, conveys some additional meaning beyond confirming the mother’s parental responsibility and that by making these additional orders at an interim hearing the Court was implicitly determining that there had been a change of circumstance to some degree.
The father’s submissions in this regard is rejected. The order of the Senior Registrar clearly states that the mother intends to enrol the children at S School as a notation and not an order altering in anyway the final orders of Justice Tree conferring sole parental responsibility on the mother.
Costs of the previous proceedings
The mother deposes to having incurred legal costs of $114,693.03 from the initial proceedings and the appeal. She contends that she would not be able to afford continued litigation in regards to parenting issues should they be permitted to be revived.
There are property proceedings which are on foot, but the asset pool is modest.
Discussion
The children have experienced significant conflict between their parents. They have been interviewed in the context of the previous proceedings for a family report and have had their parents involved in ongoing litigation since 2015.
The basis of the father’s application for re-opening the proceedings relate solely to issues which were anticipated by Tree J and addressed in his 2017 Reasons. To allow the father to re-open proceedings would simply be offering him an opportunity to re-agitate issues which were settled in 2017. There is no basis for further parenting proceedings.
The children’s circumstances have not relevantly changed. Changes have happened in regards to their schooling as a result of them ageing into high school. That is to be expected.
The children’s relationship with the mother appears, on both parties’ evidence, to be a complex one and early 2019 they have showed reluctance to spending time with her. This was anticipated by Tree J in his reasons and it was expected that they would be resistant to living with her in M Town. This is not a change in circumstance which would satisfy the rule in Rice v Asplund.
The children’s present circumstances are not indicative of any change to the present orders and there is little prospect of the present orders being varied in any significant way as a result of a new hearing.
Small changes in circumstances are a reality of life and may not have sufficient significance to compensate for the disruption caused by significant re-litigation. Such is the case here.
The potential detriment to the children caused by re-litigation must be considered. The children would be exposed once again to heightened conflict between their parents in the context of that litigation. The children would be required to attend again upon a family report writer or a Single Expert for the purposes of a second family report.
In the circumstances discussed above, there is no circumstance that would justify the re-litigation of the discrete issue of parenting asserted by the father. Such would not be in the best interests of the children.
The Independent Children’s Lawyer supports the dismissal of the father’s application.
The father’s application will be dismissed. Directions will be made as to any costs submissions.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 4 October 2019.
Associate:
Date: 4 October 2019
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