CASTON & CASTON
[2020] FCCA 2162
•6 August 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CASTON & CASTON | [2020] FCCA 2162 |
| Catchwords: FAMILY LAW – Parenting – Rice & Asplund – hearing of preliminary issue – where the respondent mother sought dismissal of an application to vary final consent parenting orders – where the parties have two children – where consent parenting orders made in 2015 – where parties attended upon a psychologist for the purposes of family report – where the applicant father sought a substantive change to parenting arrangements – where parties engage in mediation – where orders again made by consent in 2018 increasing spend time with the applicant father – where, in 2020, the applicant father sought discharge of all previous parenting orders – where the applicant father further sought change of residence and to be at liberty to further particularise orders pending a family report – orders made for parties to attend upon a family therapist for a period of not less than twelve months – Rice & Asplund – applicable principles – where Court is obliged to take the applicant’s evidence at its highest – policy considerations – where open for the Court to look favourably upon existing arrangements – where the applicant father’s circumstances now include a new spouse and child – finality of litigation – where re-litigation is inimical to the best interests of children – appropriate for consideration of application by way of preliminary determination. |
| Legislation: Family Law Act 1975 (Cth), ss.13C, 60CA, 60CC, 65D, 65L, 67Z, 69ZN |
| Cases cited: Attwells v Jackson Lalic Lawyers (2016) 90 ALJR 572 |
| Applicant: | MR CASTON |
| Respondent: | MS CASTON |
| File Number: | MLC 10817 of 2014 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 16 July 2020 |
| Date of Last Submission: | 16 July 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 6 August 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr M.N. Wilson |
| Solicitors for the Applicant: | Cahill & Rowe, Family Law |
| Counsel for the Respondent: | Mr T.J. Puckey |
| Solicitors for the Respondent: | Lander & Rogers |
ORDERS
The Initiating Application filed on 20 March 2020 be dismissed.
Within fourteen (14) days, the parties file and serve any submissions as to costs (not exceeding three pages, font 12, 1.5 spacing).
Any question of costs be agreed or decided on the papers.
IT IS NOTED that publication of this judgment under the pseudonym Caston & Caston is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 10817 of 2014
| MR CASTON |
Applicant
And
| MS CASTON |
Respondent
REASONS FOR JUDGMENT
Introduction
These reasons for judgment explain orders made upon a preliminary hearing by the respondent mother seeking dismissal of an application to vary parenting orders upon the principles stated in Rice & Asplund.[1]
[1] (1978) 6 Fam LR 570; (1979) FLC 90-725 (Rice & Asplund).
The application relates to the parties’ two daughters born in 2010 and 2013 respectively. By way of overview, on 3 August 2015, the parties, who were represented by experienced counsel, agreed in the making of final consent parenting orders. By those orders it was agreed that the children live with their mother and spend time with their father. In early 2018, the parties further agreed to modify their final consent parenting arrangements. Now, in 2020, the applicant father seeks to effect a substantive change to parenting arrangements such as to achieve a change in residence for the children so that they should live with him.
For the reasons that follow, I have concluded that the application should be refused. In substance, I am not satisfied that it is the children’s best interests that there should be a continuation of this litigation.
Background
The applicant father, aged forty, is a professional who has re-married and is now father to a very young child with his new wife, a professional.
The respondent mother, aged forty, is a health care professional. She has not re-partnered.
Each of the parties are in good health.
The parties commenced cohabitation in 2006. They were married in 2007, separated in late 2014 and were divorced in March 2016.
As noted, the parties are parents to two daughters born in 2010 and 2013 respectively. Some issues respecting their health are raised in the context of the present application.
Immediately following separation, in November 2014, and again in January 2015, the father made reports to the Department of Health and Human Services (DHHS), each of which was closed at intake.
Shortly after the second report to DHHS, an interim intervention order, operative for a period of six months, was made against the father, naming the mother as an affected family member.
Procedural history
On 2 December 2014, the father filed an initiating application seeking both parenting and property orders. As concerned parenting issues, the father sought orders for equal shared parental responsibility and that the children should “live with the wife save as otherwise provided”. In effect, the father sought orders that the children should live with him both in alternative weeks and for one half of school and summer vacation holidays with ancillary orders respecting special occasions.
By her response filed on 23 February 2015, the mother was agreed in equal shared parental responsibility and that the children should live with her. Respecting spend time arrangements, it was the mother’s position that the children should spend time with their father on each week from Friday afternoon until Saturday evening and mid-week, on each Wednesday. She too, agreed in the children spending time with each parent during holidays and on special occasions.
On 25 February 2015, orders were made by consent which aligned more precisely with the relief sought in the mother’s response. Procedural orders were made for the parties to attend upon a family consultant in mid-March 2015. That report was obtained.
In the period December 2014 – June 2015, each of the parties filed two affidavits. While the parties did not rely upon those affidavits for the purposes of the present application, it may be noted that those documents were replete with criticisms directed by one party toward the other.
In July 2015, the parties attended upon a psychologist, Mr B, for the purposes of the family report referred to above.
On 3 August 2015, the parties agreed in final consent orders whereby they would share equal shared parental responsibility for the children who would live with their mother and spend time with their father, with progressively increasing increments over the period 2015-2018. The parties were also agreed that, with effect from term two in 2018, the children would spend time with their father from Thursday afternoons until Monday in the first week and from Thursday afternoons to Friday mornings in the alternative week.
On 11 September 2015, the parties agreed in orders which effected a final adjustment of their property interests.
In June 2017, the parties attended a private mediation in consequence of which they agreed upon orders which varied the parenting arrangements embodied in their 2015 consent final orders. Later, in January 2018, the parties filed an application for consent orders which orders were made on 8 February 2018 reflecting the parties’ further agreement that the children should spend further time with their father. Disputes ensued.
On 20 March 2020, the father filed an initiating application seeking by way of final relief, orders discharging all previous parenting orders, an order that the children now live with the father, but notably that he otherwise “be at liberty to further particularise the orders he is seeking pending a family report being prepared.” By way of interim relief, the father sought the discharge of the consent parenting orders described above and in lieu thereof that the children live with each parent on a week about basis. An order for a family report was also sought.
On 14 May 2020, the mother filed a response seeking dismissal of the father’s application, at either an interim, or alternatively, a final, hearing. In each case, the stated basis upon which dismissal of the application was sought was “in accordance with the principles of Rice & Asplund.”
Each party filed a notice of risk. On 1 April 2020, the parties agreed in orders permitting inspection of documents produced by DHHS.
On 18 May 2020, procedural orders were made to accommodate a hearing of the mother’s application for interim orders dismissing the father’s application for further parenting orders. The proceeding was listed for an interim hearing 16 July 2020 and each of the parties filed detailed submissions respecting the determination of the application.
For the purposes of the interim application, the parties relied upon, respectively: the final parenting orders dated 3 August 2015; the orders dated 8 February 2018; their initiating application and response, the notices of risk, the s 67Z response of DHHS; the father’s affidavits filed 20 March, 14 May, 24 June (two), 8 July 2020; and, the mother’s affidavits filed 14 May, 10 June and 14 July 2020, each of which I have examined. In addition, the father filed an affidavit sworn by his new wife while the mother filed an affidavit sworn by the children’s tutor. Notably, amongst the documents exhibited by the mother was the family report prepared by Mr B, who had made recommendations to assist the parties in resolving parenting issues. I have considered this material.
The scale of the material which the parties sought to rely upon spoke loudly to their polarised views as to the proper disposition of the matter.
At the hearing of the application for a preliminary determination upon the issues raised by Rice & Asplund, neither party sought to cross-examine any witness. Indeed, the application was conducted, in effect, on the basis that the material considerations were embodied in the parties’ evidence and submissions and that the Court should decide the issue. Notwithstanding the adoption of that approach, I encouraged counsel to explain the substantive bases on which it was contended that relief should be granted or refused from their clients’ respective positions.
In the course of the parties’ oral submissions, counsel were agreed that if the initiating application was dismissed in accordance with the mother’s interim application, the Court would be functus officio with the result that the Court would have no power to make an interim order such as by way of reportable or non-reportable therapeutic counselling. Counsel were also agreed that conversely, if the Court reserved its decision upon the interim application, it would be competent for the Court to make an interim parenting order before delivery of judgment.
In those circumstances, and in light of the parties’ submissions and evidence, on 16 July 2020, orders were made that the parties attend upon a family therapist, for the purposes of therapeutic family counselling and that they do so for a period of not less than twelve months. It was common ground that the Court was seized of power to make such an order and were essentially agreed in the making of such orders.[2]
[2] Act, s 13C, see also s 65L.
Rice & Asplund
The Full Court’s decision In the marriage of Rice & Asplund is a seminal decision in which Evatt CJ, with whom Pawley and Fogarty JJ agreed, established a series of principles to be applied in the determination of applications to discharge or vary final parenting orders. The Full Court considered an appeal by a husband against an order granting custody to the wife of a seven year old child. From October 1975, a series of interim orders had been made, including following a contested hearing. Initially, the husband was granted custody with the wife to have defined access. Later, those orders were varied, granting the wife access to the child on three out of four weekends and at other agreed times. The wife’s appeal from that interim order was dismissed and the matter was listed for trial with expedition. At trial, orders were made granting custody to the wife. From those final orders the husband appealed. Thus, the appeal arose from orders reversing custody arrangements that existed under interim orders. Those interim and final orders provided the catalyst for the determination of a point of law as to the principles upon which a party may seek review of a final order for custody.
The respondent wife had submitted that the applicant, in order to justify the review of an earlier custody order, must satisfy the Court that there had been a substantial change in circumstances since the earlier order was made.[3] Authority cited for that submission included McManus v McManus[4] in which Selby J held that, where application was made to vary a custody order made by consent, most substantial grounds were required to be established. His Honour described the applicant as bearing a heavy onus and that “new facts and circumstances [would need] to be revealed before this onus would be discharged.”
[3] (1978) 6 Fam LR 570, 571.
[4] [1969] 1 NSWR 384.
Evatt CJ held that the Court “should not lightly entertain an application to reverse an earlier custody order” identifying finality of litigation as an important consideration which would militate against an over-willingness to review a final custody order. The Chief Justice recognised that finality of litigation operated in a context where change was necessarily a factor in human affairs; that is, the passage of time was an inevitable change and would not, in or of itself, suffice to support the alteration of final parenting orders. Evatt CJ held that the Court would need to be satisfied by the applicant that “there is some changed circumstance which would 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”.[5]
[5] Citing Gilder v Gilder (unreported SC Vic, 17 February 1967, Barber J); Hayman & Hayman [1976] FLC 90-140 at 75, 680 (Murray and Lusink J).
Rice & Asplund affirms that the particular factors which may justify a Court in reviewing a custody order would vary from case to case but that once the Court had made a finding that there was some new fact or circumstance sufficient to review the earlier order, the issue of custody was to be determined in the ordinary way; that is, having regard to the interests of the child as the paramount consideration. These principles are to be applied whether the order had been made by consent or following a contested hearing.[6]
[6] (1978) 6 Fam LR 570, 572.
Thus, a threshold issue is to determine whether the applicant has demonstrated that there are circumstances which require the Court to embark on the serious step of reconsidering how the welfare of the child should best be served. The approach commended by the Full Court in Rice & Asplund was that factors requiring consideration include: (1) the length of time the child has been in a particular situation; (2) any earlier decision of the Court and the reasons for that decision; (3) the possible advantages or disadvantages of a change in custody.
Evatt CJ’s application of those principles is instructive:
a)first, no error was disclosed by the primary judge having postulated the test for revisiting parenting orders as requiring the applicant to demonstrate that some significant change had occurred since the original orders were made;
b)secondly, it was accepted that a parties’ remarriage or more stabilised living arrangements may constitute a sufficient reason for re-opening custody issues but would not necessarily provide a decisive reason to grant relief – all factors remained relevant;
c)thirdly, the Court rejected a submission that a judge should not substitute her or his view of the parties for that of the original Court without having substantial reasons for doing so;
d)fourthly, the Court was entitled to form its own views of the parties once circumstances had been demonstrated which justified the re-examination of the custody issue;
e)fifthly, the Court should consider what weight should be attached to the status quo which obtained as a result of the existing orders. Status quo was, however, a factor of variable quality that fell to be weighed in the balance with all other factors;
f)sixthly, while it might be perfectly understandable that a parent might wish to see more of a child, this was not a sufficient reason to interfere with a discretionary order regulating access;
g)seventhly, Evatt CJ recognised a marked distinction between a change in custody from a mere change in access arrangements.[7]
[7] (1978) 6 Fam LR 570, 573-575. Rice & Asplund concerned an appeal from a final order which reversed interim custody orders that had been made some nine months earlier: see at p. 574.
Rice & Asplund has been cited, considered or applied by the Full Court and trial judges in many decisions, including since amendments were made to the Act inserting further important provisions in Part VII. Principles to be extracted from the authorities include the following:
(a)the doctrine of res judicata does not apply to an order, including a consent order, with respect to the parenting of children.[8] By definition, parenting orders are interlocutory in nature[9] and further, parenting applications are by nature, not strictly inter partes – the rights of children are at issue.[10] Thus, the rights of children cannot merge in a final judgment;[11]
(b)the Court should not lightly entertain an application to alter a final parenting judgment,[12] particularly because the important interests of children are unlikely to be served by frequent displacement or the uncertainty of prolonged or repetitive proceedings.[13] Just as the finality of litigation is an important consideration,[14] so too, the adverse impact of repeated litigation is inimical to a child’s well-being and so contrary to their best interests.[15] In short, enduring conflict between parents is itself harmful to children;[16]
(c)while s 65D(2) confers power to discharge, vary, suspend or revive a parenting order, the power is controlled by the overriding requirement in s 60CA to safeguard the best interests of the child as the paramount consideration.[17] To justify such a serious step, the applicant must establish that there is: (i) some changed circumstance, or; (ii) some new factor arising, or; (iii) some factor which was not disclosed at the earlier trial;[18]
(d)the requirement to establish a significant change may be seen as imposing a lower threshold than a requirement of most substantial grounds. The test has been variously stated as requiring proof of a significant change, substantial change, sufficient material change, sufficiently ‘weighty’ new facts and circumstances and a material change in circumstances. The substantive question to be addressed is: are new facts or changed circumstances demonstrated which are sufficiently material to necessitate consideration whether the existing orders should be altered so that an investigation should be conducted to determine what orders will safeguard the children’s best interests?[19]
(e)attention should focus upon what it is that the applicant (or ICL) contends as that which is said to constitute the changed circumstances.[20] Of necessity, the content of the requirement of significant change is both fluid and elastic. However, as the passage of time will inevitably result in some changes to a family, the types of circumstance which may allow re-litigation of a final parenting order must be circumscribed;[21]
(f)the application of these principles is closely connected with the nature and degree of the change sought to be made to the earlier order (e.g. change in residence v. change in spend time arrangements).[22] So, for example, in Morton & Berry,[23] the Full Court endorsed reasoning that considerations acutely relevant to a child’s best interests could change, including by reference to the child’s age and level of maturity;
(g)further, the rule is not absolute.[24] For example, the rule in Rice and Asplund may not impede an application for a small alteration (which may require only a short and narrow inquiry), yet may properly prevent a hearing for more far-reaching changes.[25] Thus, in relation to special time, the rule ‘could not conceivably’ operate against an application for special time;[26]
(h)relatedly, there may be cases in which the jurisdiction is invoked to dismiss summarily a further application to vary a final parenting order. The exercise of that power is exceptional but may be seen as protecting children from prolonged exposure to litigation;[27]
(i)the principles stated above also apply, with modifications, to an application for the reinstatement of access;[28]
(j)finally, the refusal of an application to alter parenting orders does not bar a further application.[29]
[8] Reid & Lynch [2010] FLC 93-448, [229]-[230] (O’Ryan J, Finn and Strickland JJ agreeing).
[9] Granville & Blakeslee [2017] FamCAFC 162, [59]; Ralton & Ralton [2017] FamCAFC 182, [41].
[10] M v M (1988) 166 CLR 69 (per curiam); CDJ v VAJ (1998) 197 CLR 172, [104].
[11] Cf Attwells v Jackson Lalic Lawyers (2016) 90 ALJR 572, [126] (Gordon J): see also Act, s 60CA.
[12] Reid & Lynch [2010] FLC 93-448, [238].
[13] Reid & Lynch [2010] FLC 93-448, [21]-[22].
[14] Searson & Searson [2017] FamCAFC 119, [12]-[15] (Murphy J, Kent and Loughnan JJ agreeing); Newling & Mole (1987) FLC 91-856, 76, 467 (Nygh J, Barblett and Fogarty JJ agreeing).
[15] Freeman & Freeman (1987) FLC 91-857, 76, 470 (Strauss J, Bell and Fogarty JJ agreeing).
[16] Marsden & Winch [2009] FamCAFC 152, [49] (Bryant CJ, Finn, Cronin JJ).
[17] Reid & Lynch [2010] FLC 93-448, [20], [231].
[18] Reid & Lynch [2010] FLC 93-448, [238].
[19] Freeman at 76,470, (Strauss J); KB & TC (2005) FLC 93-224, [13].
[20] Reid & Lynch [2010] FLC 93-448, [244]-[250].
[21] Marsden & Winch [2009] FamCAFC 152, [48]; O’Brien & O’Brien [2017] FamCAFC 219, [21].
[22] Marsden & Winch [2009] FamCAFC 152, [46]; SPS & PLS (2008) FLC 93-363, [48] (Warnick J).
[23] (2014) FLC 93-613 at [58]-[60] citing Poisat & Poisat [2014] FLC 93-597, [41].
[24] Reid & Lynch [2010] FLC 93-448, [260].
[25] Reid & Lynch [2010] FLC 93-448, [239] applying Marsden & Winch [2009] FamCAFC 152, [18].
[26] Granville & Blakeslee [2017] FamCAFC 162, [59].
[27] Cf Morton & Berry (2014) FLC 93-613, [20], [48].
[28] Zabaneh & Zabaneh (1986) FLC 91-766, 75,587.
[29] Tabb & Tabb [2017] FamCAFC 169, [24].
The principles identified above upon application to vary final parenting orders must be applied to meet the circumstances of the particular case. Insofar as the principles in Rice & Asplund have been questioned, the Full Court has affirmed that they are firmly entrenched.[30]
[30] Poisat & Poisat [2014] FLC 93-597, [8].
Best interests remain paramount
The rule in Rice & Asplund now operates subject to the paramount best interests principles as stated in s 60CA and must now be applied having regard to the principles set out in Part VII of the Act.[31] Relevantly, this engages a requirement to evaluate the evidence against the principles in Part VII, “in particular the objects of the Part, the presumption of equal shared parental responsibility and the steps required by the Act consequent upon an order made or [sought] to be made in that regard.”[32] In Marsden & Winch, the Full Court held[33] that in light of in Part VII the application of the rule now requires the Court to consider the following:
(a)The past circumstances, including the reasons for the decision and the evidence upon which it was based.
(b)Whether there is a likelihood of orders being varied in a significant way, as a result of a new hearing.
(c)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.
The second and third of those principles apply where the Rice & Asplund application is determined by way of a preliminary issue.
[31] Marsden & Winch [2009] FamCAFC 152, [47]-[49]; SPS & PLS [2008] FamCAFC 16.
[32] SPS & PLS [2008] FamCAFC 16, [48(vii)], [84]; see also CDW & LVE [2015] WASCA 247, [79].
[33] [2009] FamCAFC 152, [47]-[50].
The Full Court’s analysis in Kulat & Azzarudin,[34] indicates that the rule in Rice & Asplund might be applied with greater force upon a preliminary hearing in clear cases where it is necessary to prevent further litigation. Such an approach is supported on the basis that to do so would be demonstrably contrary to the best interests of the children. At the other end of that spectrum, the rule may have a different and more limited scope for operation when applied at the conclusion of a full hearing than would occur at a preliminary hearing. In Jiang & Yip,[35] Berman J held that the rule was firmly entrenched but presented slightly different issues when raised on a preliminary or a final hearing. His Honour considered it to be settled that “the focus is the recognition that finality of litigation is likely to represent the child’s best interests.”
[34] [2009] FamCAFC 152, [11]-[19].
[35] [2017] FamCA 224 at [37]-[40].
At whatever stage of a proceeding the Rice & Asplund issue is presented, “its application should remain merely a manifestation of the best interests principle”.[36] It must be recognised that there will be occasions in which significant changes have occurred and which properly required the Court to reconsider the necessity for changes to final parenting orders. The inquiry is case specific and fact intensive.
Preliminary issue or full hearing?
[36] Marsden & Winch [2009] FamCAFC 152, [48] citing SPS & PLS, [48].
The Court may consider it appropriate to decide the threshold question posed by Rice & Asplund as a preliminary issue.[37] In other spheres, caution is expressed against the determination of preliminary issues. The concern that is identified is that applications on a preliminary issue are often inutile; the supposed attraction of a trial of issues rather than of the cases in their totality as often being more chimerical than real.[38] A distinction may be drawn between a Rice & Asplund issue from the circumstances in which a preliminary issue is decided in civil litigation. The determination of a preliminary issue in civil litigation is a part of a trial. Where application is made to alter final parenting orders, there may have been a trial but those final orders have already been made. Alternatively, the parties, having instituted a parenting proceeding, may have explored the issues considered to be in the best interests of their children and, perhaps with independent expert opinion evidence, conducted negotiations or mediation and agreed final parenting orders.
[37] L & L (1992) FLC 92-274, 79,033 (Strauss, Baker and Graham JJ).
[38] Tepko v Water Board (2001) 206 CLR 1, [168] (Kirby and Callinan JJ); Dariverenli v South Eastern Sydney Local Health District [2019] NSWCA 129, [4], [6], [8]; Jacobsen v Ross (1995) 1 VR 337.
The preliminary issue presented on a Rice & Asplund application is more properly seen as a discretionary threshold question which, if answered in the negative, will dispose of the need for any further hearing. In Elmi & Munro,[39] the Full Court explained that the essence of the issue to be determined is whether there has been a material change in circumstances which indicate that it would be in the best interests of a child for there to be a reconsideration of the parenting orders. Earlier, the Court, with reference to Poisat & Poisat, emphasised that the rule in Rice & Asplund was intended to be applied universally in any application where a party sought to discharge or vary a final parenting order.[40] A number of considerations arise as concerns the approach on preliminary hearing.
[39] [2019] FamCAFC 138, [38].
[40] [2019] FamCAFC 138, [25].
First, when a Rice & Asplund issue arises, it is not necessary to fully consider and investigate all of the primary and additional factors that are prescribed by s 60CC. To do otherwise could undermine a purpose to be served by the rule in protecting children from involvement in or exposure to further litigation.[41] Since the relevant enquiry in the determination of a Rice & Asplund application is whether it is in the best interests of a child to permit further litigation, it is often unnecessary to discretely address many of the factors in s 60CC.[42]
[41] Reid & Lynch [2010] FLC 93-448, [252]-[259] citing King v Finneran (2001) FLC 93-079; see also DL & W (2012) FLC 93-496 [77]; Searson & Searson [2017] FamCAFC 119.
[42] Lund & Lund [2018] FamCA 112, [30]; Carriel & Lendrum (2015) 53 Fam LR 157, [56]-[58].
Secondly, when a Rice & Asplund issue is presented as a preliminary issue, a conclusion that no, or that no sufficient, change is demonstrated, may be determinative of the application. Yet in some interim hearings on Rice & Asplund, the Court may conclude that the nature of the issues presented do warrant investigation and consideration of the primary and additional matters prescribed by sub-s 60CC(2)-(3). Such a finding will support a conclusion that the matter should go to a full hearing.[43]
[43] Reid & Lynch [2010] FLC 93-448, [388], [409].
Thirdly, where Rice & Asplund is determined as a preliminary issue, the hearing is nonetheless conducted on its merits and not upon the principles which apply where summary dismissal is sought.[44] Thus, it must be made clear to the parties that the preliminary issue may be determinative of the application.[45] The implication should be avoided that the application is not being dealt with on its merits.
[44] Marsden & Winch [2009] FamCAFC 152, [47] citing SPS & PLS, [74].
[45] Edwards & Edwards (2006) FLC 93-306, [97]-[99]; D & B v L [2004] WASCA 116, [18].
Fourthly, determination of a preliminary issue proceeds on an assumption that the applicant’s evidence has been accepted. In Searson & Searson, Kent J held[46] that in hearing a preliminary issue, the Court was bound to assume the acceptance of the applicant’s evidence on the question whether a sufficient change in circumstances was demonstrated. Where Court concludes that the application should be dismissed, this is grounded upon a conclusion that the uncontested evidence demonstrates there is an insufficient basis to embark upon a further hearing.[47]
[46] [2017] FamCAFC 119, [60] (Loughnan J agreeing).
[47] Marsden & Winch, [47] citing SPS & PLS, [81].
Fifthly, although the rule may operate differently and may carry less force when it is applied at a final hearing as distinct from upon the hearing of a preliminary issue, nonetheless the rule remains operative.[48]
[48] Morton & Berry (2014) FLC 93-613, [48], citing Poisat; Marsden & Winch, [49], SPS & PLS, [74].
Sixthly, it is a matter of discretion whether to approach a Rice & Asplund issue by way of preliminary hearing or a full hearing. There may be cases in which the threshold issue cannot properly be determined without undertaking an investigation of the merits of the application itself. Further, where the matter proceeds directly to a full hearing, the Court may be presented with difficulty in circumstances where the applicant does not establish that there has been any or a sufficient change. In Bennett & Bennett,[49] Nicholson CJ, Simpson and Finn JJ held that where the Court proceeds to a trial rather than a preliminary issue and concludes that a change in spend time arrangements is warranted:
. . . it would be unthinkable not to give effect to such a conclusion on the basis that no change in circumstances had been shown.
. . . it seems to be almost impossible to argue that if a trial judge has concluded that, in the interest of a child, there should be a change in custody, such a decision should be set aside on the basis that there has been no sufficient change of circumstances. (Emphasis added)
[49] (1991) FLC 92-191 at 78,262; see also: Marsden & Winch, [52]-[54] citing Miller v Harrington (2008) FLC 93-383, [81]-[82].
In Kulat & Azzarudin,[50] Strickland, Kent and Forrest JJ endorsed the reasoning in Bennett & Bennett, that fresh applications to vary parenting orders should not be permitted unless a substantial change in circumstances was shown to exist. The Court also drew a distinction between cases in which a party had consistently maintained that the application should be dealt with as a preliminary issue and those in which the parties were content to proceed to trial. Their Honours also endorsed the principles stated in SPS & PLS that where a matter did proceed to a full hearing, the rule was still to be applied even where the judge considered that, apart from application of the rule in Rice & Asplund, a change in parenting arrangements was appropriate.
[50] [2018] FamCAFC 97, [14].
Two reasons of public policy support the maintenance of the rule.[51] First, it remains important that judges not be required to substitute their own decision for that of another judge unless a substantial change in circumstances was shown. Secondly, application of the rule is desirable so as to discourage re-litigation (it being demonstrably contrary to a child’s interests). Equally, in the circumstances of a particular case, neither of those public policy considerations may be engaged. For example, such considerations are not engaged where: (1) the initial parenting order was made by consent. Here, the second application will not involve the ‘substitution’ by the judge for the decision of another judge; (2) the elapsed period between the original and the further application militates against a conclusion that a sufficient temporal connection exists to engage the first public policy consideration – that is to say, the notion of substitution of an earlier decision is a more resonant consideration where the two orders are temporally proximate; (3) the need to demonstrate a substantial change may be obviated by the fact that the original order itself set in place the fact of such change.
[51] Ibid [16]-[19].
Where an application is made to vary final parenting orders, at least four considerations may be identified which inform whether a preliminary hearing is appropriate: (1) contextually, there has already been a final hearing; (2) such an application should not be seen as a means of circumventing a parties’ right to appeal from a final order; (3) on an application to alter parenting orders as a preliminary issue, the Court is required to apply Rice & Asplund principles upon an assumption that the facts disclosed by the applicant’s affidavit are accepted. An assessment is then made whether the change contended for by the applicant in fact exists, and if so, whether it is of sufficient significance to justify reconsideration of the grant of relief; (4) the adoption of a preliminary issue respects the importance of the finality of litigation.
Here, the parties were in contest as to whether the rule in Rice & Asplund was generally considered at a preliminary hearing. While the father correctly observed that no authority had been cited by the mother in support of that proposition, it is well recognised that the rule is often applied at a preliminary stage in a proceeding. In SPS & PLS,[52] Warnick J stated that in its original formulation the rule had been “directed to application as a preliminary matter.” In Malak & Mairie (No 2),[53] Murphy J observed that “[a]lthough a consideration of ‘the rule’ can be, and very frequently is, determined as a preliminary issue prior to the Court embarking upon a consideration of the merits of the substantive parenting orders sought, it need not be.” Relatedly, in Walter & Walter,[54] his Honour explained that by force of the mandatory principles in s 69ZN of the Act, the Court was required to consider the needs of children and the impact which the conduct of proceedings might have upon them and further, to actively direct, control and manage the conduct of proceedings. His Honour relied upon those mandatory principles as supporting the exercise of discretion in an appropriate case to determine a Rice & Asplund question by way of preliminary determination. Those observations were endorsed in Daniel & Fulton.[55] So too in DL & W,[56] May, Thackray and Strickland JJ confirmed, again relying on s 69ZN, that there would be cases where it may be necessary in a child’s best interests to revisit final orders, including consent orders.
[52] [2008] FamCAFC 16, [48(ii)], [49]-[54], [62], [74].
[53] [2016] FamCA 120, [8], citing SPS & PLS [2008] FLC 93-363; Miller & Harrington [2008] FLC 93-383; Walter & Walter [2016] FamCAFC 56.
[54] [2016] FamCAFC 56, [113]-[114].
[55] [2018] FamCA 39, [13].
[56] (2012) FLC 93-496, [67]-[72].
There need not be a binary outcome on a preliminary hearing.[57] Where doubt is demonstrated as to the existence of sufficient circumstances, the Court is not confronted only with an option of dismissing the application or referring the Rice & Asplund issue to a full hearing. The applicant might instead be afforded an opportunity to put on further evidence, including expert evidence, and still maintain the hearing confined to the preliminary issue.[58] The breadth of the discretion is self-evident (as is the potential in-utility of proceeding by way of a preliminary hearing).
[57] Marsden & Winch [2009] FamCAFC 152.
[58] Ibid [55], [70], [75].
Insofar as it was further suggested that the mother’s Response sought that the rule be variously applied at a preliminary or further, and indeed upon any final hearing in the proceeding, I consider that it is open to the Court to conclude upon a preliminary hearing that the Rice & Asplund issue should remain live and accordingly, that a party resisting the re-opening of final orders is likewise entitled to press for the issue to remain open for further consideration after receipt of a family report or at a final hearing. Such conclusions are consistent with the purpose of the rule which is to consider in the best interests of children whether any further litigation ought to be permitted.
Summary judgment?
There was also controversy in the approach to be taken in the evaluation of the evidence adduced at a preliminary hearing. The genesis of this controversy arose in part from the nature of the hearing.
Insofar as the father submitted the preliminary determination of a Rice & Asplund application was ‘obviously analogous’ to an application for summary dismissal of a proceeding, I do not accept the generality of that broad proposition. Particular caution is required in drawing analogies between summary judgment and preliminary issues.
First, at a threshold level, it is a false analogy to equate an application for the determination of a preliminary issue in a civil proceeding with a preliminary hearing of a Rice & Asplund question. In the former, the nature of the preliminary hearing upon which the Court embarks is in truth a part of the final hearing of the proceeding. By contrast, in the preliminary hearing of a Rice & Asplund question, the Court is concerned with the exercise of a discretion whether or not it is in the best interests of a child to allow the issue to proceed any further.
Secondly, while there are circumstances in which a party might properly decide to apply for the summary dismissal of a claim, the power conferred on a Court to do so stands in marked contrast to the independent power which it has to conduct a hearing upon a preliminary issue in a proceeding. They are very different applications. That is not to say that in an appropriate case, a respondent might not decide that summary dismissal of an application to discharge or vary a final parenting order may not be a proper course to adopt. It is not, however, for the respondent to the preliminary hearing to dictate what sort of application is being made (and indeed that did not occur here).
Thirdly, the threshold of a summary judgment application is qualitatively different from that which is applied in the preliminary determination of a Rice & Asplund question. And each is entirely different in character to the preliminary determination of a separate question in a civil trial.
Fourthly, it may be observed that where a party applies for summary judgment in a civil proceeding, the resort to the exercise of judicial power to dispose of a proceeding summarily more commonly arises in a context where there may be a binary outcome in the proceeding. For example, it may be claimed that the defendant is indebted to the plaintiff for a sum certain and that there is no defence to the claim. In such a case, the Court may conclude that, although the power to grant summary judgment is to be exercised sparingly, in a proper case such judgment should be granted where the evidence proves the claim and the defendant has adduced no cogent evidence why liability for the debt has not been established. Contrastingly, where, as here, the nature of the claim and relief sought depends, in part, upon the exercise of a discretion that has been conferred on the Court, the grant of summary judgment in such a case may well raise quite distinct considerations.
Fifthly, the determination of a Rice & Asplund question arises in the context that the parties already have a final judgment which embodies their rights and obligations (and those of their child or children) and which judgment has been either the product of their agreement or of their contest on all of the issues which they chose to bring forward for judicial determination. In contrast, with a parenting application, where summary judgment in a civil claim is sought on the basis that the parties’ rights and obligations were the subject of contest, and resolved, in an earlier proceeding, the power to summarily dismiss the claim may be exercised on the basis of principles of res judicata. It is clear that such principles do not apply in a parenting application and that the Court remains seized of power to make further parenting orders in an appropriate case.[59]
[59] Act, ss 60CA, 65D; see also, Elmi & Munro [2019] FamCAFC 138, [27].
While the principles to be applied upon an application for summary judgment are well settled, the mother eschewed any suggestion that she was seeking summary dismissal of the father’s application to further vary the parties’ final consent parenting orders.
Taking evidence at its highest?
In reliance upon the principles applicable to an application for summary dismissal of a proceeding, it was submitted to be ‘trite’ that in such applications, the person seeking dismissal had no right to adduce any evidence at the summary hearing to contradict the evidence of the party resisting dismissal or any inference which should be drawn from it. Reference was made to Beck & Beck,[60] in which a Full Court affirmed the correctness of this principle, citing Bigg & Suzi.[61] However, neither of those authorities concerned the preliminary determination of a Rice & Asplund application. Each should be distinguished from the present case. Beck & Beck and Bigg & Suzi each concerned an appeal respecting an s 79A application respecting property and are plainly distinguishable.
[60] [2004] FamCA 92.
[61] [1998] FamCA 14, (5.10).
In the distinct situation where a party seeks a preliminary determination of a Rice & Asplund question, it is beyond argument that the Court is engaged upon a merits review of the evidence: SPS & PLS;[62] Hart & Sellwood.[63] The dispositive finding required of the Court on the preliminary hearing is whether, assuming the applicant’s evidence is accepted, there is a sufficient change of circumstances or other discretionary basis shown as to justify embarking upon a full hearing.
[62] (2008) FLC 93-363, [81], (Warnick J).
[63] [2016] FamCAFC 254, [35].
In SPS & PLS,[64] Warnick J explained that the conclusion whether or not to embark upon a full hearing involved an evaluative assessment whether it would be in the best interests of a child to not be the subject of further litigation, a consideration which might weigh more powerfully in promotion of the child’s welfare than to allow an application to continue. His Honour framed the essential question in terms of whether the ‘new events’ relied upon by the applicant were sufficient to justify embarking on further litigation. Answering that question, Warnick J identified the need to place those events in the broader context of the child’s existing parenting arrangements, “measuring them against the significance of the steps that might follow in light of them.”
[64] (2008) FLC 93-363, [81], (Warnick J).
In Lund & Lund,[65] Strickland J explained that the requirement to take an applicant’s evidence at its highest did not mean that it should be received uncritically. For those reasons, I do not accept that in a merits review respecting a child’s best interests, the evidence of one party is to be disregarded. Where a party adduces evidence seeking to resist an order for a full hearing at a preliminary determination of a Rice & Asplund application, in my view, the Court is obliged to consider it. Counsel for the father correctly acknowledged that where the Court was engaged upon the preliminary determination of a Rice & Asplund issue, the Court could and should have regard to the evidence of both parties.
[65] [2018] FamCAFC 112, [22]-[23].
It is settled that upon the central aspect of the preliminary determination of the issue – whether a sufficient change in circumstances has occurred as would justify a full hearing upon an application to discharge or vary a final order – the applicant’s evidence should be taken at its highest: Walter & Walter;[66] Lund & Lund;[67] Grant & Andrews.[68]
[66] [2016] FamCAFC 56, [51].
[67] [2018] FamCA 112, [22].
[68] [2018] FamCA 901, [30].
However, it was further submitted that because the Court was obliged to take the applicant’s evidence at its highest, this must mean that, where the untested evidence was in conflict, the Court must prefer the applicant’s evidence for the purposes of the preliminary determination unless it was inherently incredible. It was also submitted that where more than one inference was properly capable of being drawn, the Court was obliged to make the inference favourable to the primary applicant.
No authority for either of those broad propositions was stated.
Counsel for the father correctly observed that the requirement to take an applicant’s evidence at its highest was not new. Upon the authorities to which I was referred, this principle has been recognised since at least 2008 in SPS & PLS,[69] a decision endorsed by the Full Court in Searson & Searson.[70] Accepting that the requirement is not new, the broad propositions identified above warrant scrutiny. As I understand the authorities upon which reliance was placed, the Full Court has been careful to confine the principle to the question of whether a sufficient change in circumstances has occurred as would warrant a full hearing. It does not otherwise constrain the Court in the exercise of the discretion reposed in it at a preliminary hearing to determine whether or not the case is such that it ought to be allowed to go forward for trial.
[69] [2008] FamCAFC 16, [81]. Indeed, Warnick J traced the principle to Rice & Asplund.
[70] [2017] FamCAFC 119, [11].
In guiding the exercise of discretion, an approach to the preliminary issue which has been commended is for the Court to assume that the applicant’s evidence should be accepted and instead to focus upon whether: “a sufficient change of circumstances [is] shown to justify embarking on a hearing?”[71] Adopting this perspective, a preferable formulation is to make that assumption then address two requirements:[72]
(1)the applicant must establish a prima facie case of changed circumstances;
(2)the Court should then consider whether that prima facie case demonstrates a sufficient change of circumstances as would justify embarking on a further hearing.
This statement clearly applies in the approach to be taken where satisfaction of the rule is under consideration as a preliminary issue.[73]
[71] Miller v Harrington (2008) FLC 93-383, [105].
[72] Marsden & Winch [2009] FamCAFC 152, [58].
[73] Searson & Searson [2017] FamCAFC 119, [16], [43], [60].
The approach of accepting an applicant’s evidence at its highest does not require that it be considered uncritically. First, the reasoning in Lund & Lund demonstrates that where objective independent evidence is adduced which undermines an applicant’s evidence, it would be quite wrong for the Court to accept that evidence ‘at its highest’. Secondly, to assume that an applicant’s evidence should be accepted, may be seen as authorising a trial judge to accept that evidence at face value and to do so for the purpose of enabling it to proceed and focus upon the important task of deciding whether or not a sufficient change of circumstances is shown to justify embarking on a hearing.[74] Thirdly, this enables the Court to move immediately to, and focus upon, the dispositive question which is presented by Rice & Asplund. Fourthly, once these matters are recognised, the preferable formulation[75] as stated above can be seen as enabling the Court to focus its analysis upon two questions:
(1)has the applicant established a prima facie case of changed circumstances from the parties’ final consent order?
(2)if so, does that case demonstrate a sufficient change of circumstances as would justify embarking on a further hearing?
While it may appear to be self-evident that if the first of those questions is answered ‘No’, the second question does not arise, the discretionary evaluation need not, and perhaps should not, be determined so proscriptively. In my view a formulaic use of the relevant principles should not be adopted. It is not sufficient merely to ask whether there has been some change in circumstances;[76] clearly more is required.
[74] Miller v Harrington (2008) FLC 93-383, [105].
[75] Marsden [2009] FamCAFC 152, [58]; Searson [2017] FamCAFC 119, [16], [43], [60].
[76] O’Brien [2017] FamCAFC 219 at [22]-[23] (Ainslie-Wallace J, Aldridge and Watts JJ agreeing).
Onus of proof
While there is no legal onus of proof on an applicant seeking custody,[77] in an application to vary final orders, an onus applies in satisfying the threshold test of a sufficient change in circumstances. The Court cannot relieve an applicant of the onus of satisfying that threshold.[78]
[77] Rice & Asplund, 574, citing Mathieson & Mathieson (1977) FLC 90-230 (Fogarty J); Raby & Raby (1976) FLC 90-104 (Watson, Fogarty and Lindenmayer JJ).
[78] D & B v L [2004] WASCA 116, [18] (Steytler, EM Heenan and Le Miere JJ) citing Watson Ex parte Armstrong (1976) 136 CLR 248, 258 (Barwick CJ, Stephen, Gibbs and Mason JJ).
Once satisfied that the Rice & Asplund requirements are met and the Court has assumed jurisdiction in a parenting application, the normal rules applicable to custodial decisions apply. From thereon, the applicant does not assume a particular onus to show that a change from the regime established by the earlier decision is or is not justified, “in custodial matters there is only one rule, and that is that the welfare of the child is the paramount consideration”.[79] Instead, within the conduct of a trial in a parenting application, a party will bear the evidentiary onus of establishing any primary facts which they contend for. This is because it remains open to a party to maintain that the Court should look favourably upon the existing arrangements and to submit that it is for the applicant who seeks change to identify any matters that are relied upon to support a change in the status quo. The Court is then in a position to consider those competing contentions. But to say as much should not be misunderstood as invoking some onus of proof.[80] Neither party bears an onus on the issue of status quo, whether a change in the current arrangement would be detrimental or whether a change would be positively advantageous.[81] A Court is further entitled to find that parties demonstrate equally good parenting capacity yet properly conclude that one factor may provide a decisive edge in favour of one of them.
[79] F & N (1987) FLC 91-813, 76,136-7 (Nygh J, Evatt CJ and Burton J agreeing).
[80] F & N at 76,137 (Nygh J) citing Gronow v Gronow (1979) 144 CLR 513, 519 (Stephen J), 529 (Mason and Wilson JJ), 540 (Aickin J agreeing).
[81] Burton & Burton (1979) FLC 90-622, 78,218 (Evatt CJ, Ellis and Smithers JJ).
Those principles must be read in light of the requirement when proceeding by way of a preliminary hearing to accept the applicant’s evidence at its highest, but to do so in the manner described above.
Evidence
I address below, the evidence relied upon by the parties for the purposes of their hearing upon the preliminary issue. For the avoidance of doubt, my findings upon that evidence entail an assessment of the merits of the matters upon which they have relied. It proceeds upon an acceptance of the applicant’s evidence at its highest in relation to the question whether a sufficient change in circumstances has occurred as would justify a full hearing upon an application to discharge or vary a final order.
However, the Court is not required to mention every fact or argument relied on by the parties as relevant to an issue. Those principles are well settled.[82] Moreover, in the context of a proceeding which calls for the exercise of a discretionary judgment, it is not necessary to refer to or make an explicit finding upon each disputed item of evidence. Rather it is sufficient that the Court’s findings are appropriately clear.[83]
[82] Whisprun Pty Ltd v Dixon (2003) 200 ALR 447, [62] (Gleeson CJ, McHugh and Gummow JJ); Lam v Lam [2017] VSCA 173, [112]-[113] (Whelan, Santamaria and Kaye JJA); Hutchinson Constructions Services Pty Ltd v Les Quatre Musketeers Pty Ltd [2016] NSWCA 135, [61] (Beazley P, Meagher and Leeming JJA); Walsh v Legal Practitioners Board (2016) 125 SASR 111, [49] (Stanley, Parker and Doyle JJ); Kovan Engineering (Aust) Pty Ltd v Gold Peg International Pty Ltd (2006) 234 ALR 241, [45] (Heerey, Weinberg and Allsop JJ); Hunter v Transport Accident Commission [2005] VSCA 1, [21] (Batt, Vincent and Nettle JJA).
[83] Housing Commission of NSW v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378, 385-386 (Mahoney JA): see also Molloy & Reid [2018] FamCAFC 89, [42] (Thackeray, Murphy and Aldridge JJ); Cubbin & Cutler and Anor [2018] FamCAFC 84, [13] (Thackray, Ainslie-Wallace and Murphy JJ); Holzmann & Holzmann [2018] FamCAFC 2, [34] (Thackeray, Strickland and Carew JJ); Bell & Nahos [2016] FamCAFC 244, [28]-[29] (Strickland J).
Application of the principles developed from Rice & Asplund directs attention to the need to consider the materials from the original hearing, the judgment (if any) and orders which established the existing parenting arrangements and then to examine the further evidence relied upon to support whether there has been a sufficient change in circumstances as to justify the making of orders that there be a further hearing.
The parties
I incorporate my statement of the background to this application as concerns the parties and their present circumstances.
Examination of the record (past circumstances) – 2015 & 2018
I have summarised above the nature of the final relief which had been sought by the father and mother in the original proceeding. While the parties were always agreed in orders being made for equal shared parental responsibility, the father had sought that the children should “live with the wife save as otherwise provided”. He did not deviate from that position when consent orders were made in 2015 and 2018.
While an examination of a transcript and judgment may be necessary[84] where the application is to vary or discharge final orders made after a contested hearing, the present application does not arise in that context.
[84] Hayman & Hayman [1976] FLC 90-140 at 75,680 (Murray and Lusink JJ)).
It may also be said that a question of procedural fairness is involved in addressing affidavits that have not been referred to by a party.[85] From another perspective, it appears that the Court is required the consider the evidence which comprises a part of the record upon which the Court had earlier been asked to either determine a parenting application or to make final orders which had been put before the Court by consent. As noted, each of the parties filed affidavits in the period December 2014 – June 2015 which were replete with criticisms directed by one party toward the other. It is unnecessary to rehearse their criticisms and I do not do so where neither party referred to that evidence.
[85] Walter & Walter [2016] FamCAFC 56, [33]-[45], [71]-[80].
As noted, in July 2015, the parties attended upon Mr B, a psychologist, for the purposes of providing a family report. Mr B’s family report was exhibited by the mother. Putting aside the extensive evidence upon which he did rely, one might have thought that this report would have been tendered by the father in seeking to discharge the onus of satisfying the threshold test that a sufficient change in circumstances from the parties’ earlier consent order was demonstrated.
The family report dated 30 July 2015 provided by Mr B made recommendations to assist the parties in resolving parenting issues:
7.1From my interviews and observations, and from the history of their care, I would consider that [the children] have formed their primary attachment to their mother . . .
7.2Both girls also enjoy robust and supportive father-daughter bonds with [the applicant] that are highly emotional moment. In my observation, they identify as a coherent family group with both parents and each other [and] are confident, relaxed and come portable in the care of each [parent].
7.3My recommendation is that these relations be reflected in the arrangements for the girls’ post-separation care; they should live with their mother . . . and come to spend substantial and significant time with their father . . .
7.4In fact, such an arrangement is proposed by both parents. What is not agreed between them is the staging of visits to achieve this end. [The father], no doubt influenced by what he sees as [the mother’s] recent unreasonable attempts to keep the girls from his care would move towards such an arrangement more quickly. [The mother] stressing what both parents agree is and what I observed to be, [her] fairly cautious temperament, would move in this direction quite slowly, perhaps too slowly.
7.5My recommendations are not an attempted compromise between these 2 positions but are based upon what I considered to be developmentally appropriate for [the children].
7.6Nothing before me suggested that [the parents] should not retain parental responsibility for the children. I agree that they should live with their mother and I would suggest that by the Easter school holidays and 2016 the girls spend time with their father:
7.6.1from after school or kindergarten on a Tuesday, until after school or kindergarten on a Friday, weekly, and
7.6.2from after school or kindergarten on a Friday, until after school or kindergarten on a Monday, fortnightly, and the following arrangement . . .
7.7The advantages I see in this long-term arrangement are . . . .
7.8To move to this arrangement, I would suggest 2 steps: . . .
7.9 – 7.12 . . . .
7.13This did not appear to me to be a situation of high or chronic conflict between parents as yet. It is important, though, that arrangements for the children’s’ care settle now to prevent it becoming one. For the research evidence is clear: the biggest extant threat to [the children] now that their parents have separated is ongoing conflict. (Emphasis added)
I have considered Mr B’s report in some detail. Putting aside the personal criticisms made by the parties as identified in the report, it appears that the father, commendably, had obtained assistance from a consultant psychiatrist who, in reporting to his general practitioner, observed the possibility that the mother would attribute labels to the father (Asperger’s syndrome) with the father labelling the mother other terms (obsessive, histrionic and borderline), concluding “Such is the nature of the way people fall apart.” The psychiatrist identified that although the parties’ marriage appeared to work for several years it had broken down by reason of intractable personality differences.
In my view, Mr B’s recommendations were clearly supported by the matters detailed in the body of the family report.
I have summarised the parties’ consent orders as agreed and made in 2015 and 2018 respectively. The parties have agreed on not one, but two, occasions that the children should live with the mother. Contextually, the orders made by consent in February 2018 were also the product of the parties’ agreement as achieved following a mediation. Further, it is clear that the parties had been represented by experienced counsel in 2015 and in 2018 also had the benefit of legal advice from the same legal advisors who had represented them earlier in their proceedings.
Nature of orders now sought
As set out above, there has been a major change in the father’s position from that agreed in 2015 and 2018 – a change in residence is now sought. This is not a mere adjustment in spend time. Otherwise, the father was prepared to advance the application on the basis that final parenting orders would be sought once a family report had been obtained.
Notices of risk
As noted, each of the parties filed a notice of risk.
The father’s notice filed on 20 March 2020, alleged that the children had been abused and were at risk of ongoing abuse, contending that “the mother is psychologically abusive of the children, and seriously neglectful, exemplified by, among other things.” A litany of matters were particularised. The father alleged that the children were at risk of such abuse by reason that the mother: showed little to no insight in her behaviour such that the children were at risk of continuing abuse; ignored the father’s attempts to co-parent or discuss child related issues; ignored the father’s expressed wishes for the children to not miss school unnecessarily; ignored or paid little respect to Court orders and was unlikely to do so in the future; ignored the advice of various health professionals; had a mental health issue or personality disorder “such as narcissism or Munchausen’s, which contributes to her behaviour”; and, that there was a need to minimise such abuse and neglect in the future. Complaints of this kind were reiterated in the father’s notice.
The mother’s notice contended that the children were not exposed to, or at risk of harm by reason of abuse, family violence or other risk.
Responding to the father’s notice, on 30 March 2020, DHHS filed a report advising that it intended to take no further action. The Department identified historical concerns arising in the period late 2014 and January 2015 which I have considered. It also addressed the protective concerns expressed in the father’s notice. As to these, the Department concluded there was no suggestion the children were at an immediate or significant level of risk to warrant further investigation or referral to services.
Parties evidence as to current situation
As noted above at [23]-[24], the parties filed extensive evidence in relation to the present application which I have considered. The applicant filed evidence, on a ratio of 3:1, to that of the respondent.
It is convenient to address the evidence levelled by the applicant and his spouse at the respondent, together with that levelled by her, including when addressing the litany of complaints which are relied upon in seeking to discharge the onus of proof of establishing that there has been a sufficient change of circumstances as would support a conclusion that the Court should exercise its discretion to allow this further parenting application to proceed to a final hearing.
From my review of the evidence, I accept that since the making of final orders in 2015, the applicant has been constant in his pursuit in seeking to achieve a variation to the agreed final orders. It is unhelpful in my view to reiterate the matters detailed by the respondent, albeit in a condensed format, by her affidavits. Nor do I address the assertion that the applicant has “repeatedly threatened the institution of further proceedings” against the respondent; however, I readily understand why she may have articulated her view of his conduct in that way. I do not do so because it is not the question with which the rule is concerned.
While I have recited the history of the parties’ subsequent private negotiations and their mediation which resulted in an agreement in December 2017 to vary the 2015 consent orders, I note that when the parties submitted a consent order which was made in February 2018, it contained a notation recording that “save where otherwise provided, the [2015 Orders] remain in full force and effect.”
It is the applicant’s evidence that, in addition to the agreed spend time arrangements, he usually attends their extracurricular activities and “ultimately often see them several addition nor nights a week”. At one level it also appears that on occasion, the parents are each invited to and attend events at the behest of the other.
Evidence of other witnesses
The applicant father’s new spouse, a professional, filed a detailed affidavit. I have considered the contents of that affidavit which, in descriptive and positive terms, outlined the observations which she has made of the children since 2015. The deponent described the children’s great affection for their father and of the many holidays which they had taken, including interstate and overseas. Ms Caston ventured that the children appeared to her to be just as attached to their father “if not more” as they were to the respondent. She also described how the children were besotted and smitten with their very new infant sibling.
Contrastingly, Ms Caston was critical of the respondent, asserting that she did little if anything to address properly the children’s diet (which appeared to include nutrigrain, popcorn and packets of chips which the respondent supplied to the children) whereas the diet provided in the applicant’s home was described as being far more “well-balanced”.
Ms Caston also enumerated a range of hygiene based criticisms of the respondent’s care of the children including that one of the children had “told me that such they sometimes sleep naked at their mothers, and that [the respondent] sometimes sleeps topless, even without a bra on.” It was perhaps, at the least, surprising that the deponent who works as a professional, considered it appropriate to include such gratuitous criticism of the respondent in those and similar terms.
Ms Caston also joined with the applicant expressing concern about the children’s emotional and psychological development and health whilst in the primary care of their mother, describing her as infantilising and Molly coddling the children even as they grew older. Despite her profession, the deponent expressed extreme concern respecting the belief of the respondent, a health care professional, that one of the children may be on the autism spectrum and of being critical of the respondent for taking the child to a psychologist (albeit without consulting the applicant father). Further criticism was levelled at the respondent for the manner of her home schooling during the current pandemic.
An affidavit prepared on behalf of the mother was deposed to by a tutor of the children. The tutor’s specialist tertiary qualifications were described including that she is an Associate Member of the Australian Dyslexic Association. The witness deposed to receiving a phone message from the applicant on 4 June 2020, advising her that “there are court orders in place preventing them from attending tutoring unless they have authority from the father. He said he had not previously given such authority.” The applicant apparently requested that the tutor return his call. On 11 June 2020, the father, his spouse and their new baby arrived at her home while she was conducting classes. The witness deposed to being told by the applicant, in aggressive terms, that there was a court order in place and that he did not wish his girls to be tutored including that she would be served with the subpoena.
When, the following day, the witness telephoned the applicant, he said he was not interested in hearing about the children’s progress and that any report from her would be biased. She recounted “what could only be described as a deliberate character assassination of” the respondent. The witness deposed that in the seven year period of conducting her practice she had “never had a conversation in comparison . . .”
Wishes of the children
Where a final parenting order has been made, whether by consent or following a contested hearing, that order rests upon an implicit assumption that the lives of the children and their families will change during the period of its operation. With the lapse of some reasonable interval since the making of original orders and a further application to discharge or vary parenting orders, children will commonly undergo some physiological and psychological development. To recognise as much is to direct attention to three matters: (1) the stated wishes of older and more mature children may be appropriate; (2) such developments in the parties’ children cannot be regarded as constituting a relevant change; objectively, such changes are to be expected; (3) each of those considerations may intrude as a consideration in the application of the rule in Rice & Asplund and operate as a constraint on re-litigation or as supporting that there should be a further hearing of parenting interests in the best interests of children.[86]
[86] N & R (1991) FLC 92-252; Marsden & Winch [2009] FamCAFC 152.
In my view, it is not appropriate to dwell upon the best interests of the children solely by reference to the terms of the orders made in 2015. More accurately, consideration must be given also to the context in which those orders were agreed, including, as here, with the benefit of a family report and representation of experienced lawyers and counsel. Consideration should also be given to the context in which the 2018 orders were agreed including the mediation which preceded it in 2017 and that those orders were not made until 2018 and when made were also by consent and again with the benefit of sophisticated legal advice.
Insofar as the wishes of the children can be relevant, it must also be recognised that a decision whether to obtain a family report is itself a step which will prolong litigation. It is not always appropriate.
Consideration
In the course of argument, it was made clear to the parties (as it was clear from their submissions) that the application was being dealt with on its merits and required consideration on that basis. For the avoidance of doubt, these reasons address the determination of the preliminary issue that is to be determined in accordance with the rule. Specifically, they do not address the applicant’s further claim for interim relief whereby he sought to achieve an immediate change to the children’s spend time arrangements such as to increase the time to a week about basis. I agree in the respondent’s submission that the introduction of this claim as one for interim relief in truth begged the question whether there should be any alteration to the parenting arrangements embodied in the consent orders made in 2018 following mediation. If, as was contended, the applicant’s ulterior motive was to achieve by way of interim orders, an immediate increase in spend time on a week about basis, I consider that I must decline to entertain that application until the preliminary issue has been determined in the applicant’s favour. To do otherwise would undermine important policy considerations for the existence of the rule.
A cause of action which is resolved by final orders in civil litigation merges in the parties’ orders. The cause of action is then extinguished, loses its independent existence and is replaced by those final orders.[87] An allied and important principle is finality of litigation.[88] While principles of merger could not operate in relation to parenting orders, the High Court and Full Court have affirmed that the principle of finality of litigation does apply, and in some cases with greater force, including in custodial and parenting disputes.[89]
[87] Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 612 (Brennan J).
[88] Clone Pty Ltd v Players Pty Ltd (In Liquidation) (Receivers & Managers Appointed) [2018] HCA 12, [69]-[70] (Kiefel CJ, Gageler, Keane, Gordon and Edelman JJ); Attwells v Jackson Lalic Lawyers (2016) 90 ALJR 572, [126]; D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1, [43].
[89] Cf CDJ v VAJ (1998) 197 CLR 172, [118]; DL & W (2012) FLC 93-496.
Parenting proceedings under the Act respecting children are not strictly inter partes – the lives of children and their best interests are at issue. The jurisdiction conferred by the Act to make parenting orders constrains the Court to consider the best interests of the children in deciding what orders should be made. The children’s best interests remain the paramount consideration. For that reason, after final orders have been made, the Court retains a discretion to make new and different orders which modify, vary or add to those made earlier.
The fact that the Court retains the discretion to make parenting orders in a child’s best interests should not be misunderstood as conferring on a party an unqualified right to re-litigate claims that have been pursued to final judgment. Finality of litigation remains important for the parties and more so for their children. Finality remains important because the impact of ongoing litigation is itself inimical to their best interests. For those reasons, consideration is required of the history of the parties’ litigation and the resultant cost to them and their children and of the use of public resources.[90] I have paid regard to that procedural history above.
[90] Clone Pty Ltd v Players Pty Ltd (In Liquidation) (Recr’s & Mngr’s Appt’d) [2018] HCA 12, [70].
I adhere to the principle that the Court should not lightly entertain an application to alter a final parenting order. I have reconsidered each of the principles examined in relation to the scope and operation of the rule in Rice & Asplund. I am also acutely conscious of the inherent logic in the principle that prolonged litigation may have an adverse and enduring impact upon children. It explains why an applicant seeking to discharge or vary final orders bears an onus of proof on the preliminary issue.
Overview
The present application falls for determination in the context that the father’s application has already been the subject of final orders agreed in 2015 and already varied on one occasion in 2018 following mediation.
The question at this point is not whether there should be an alteration to the 2018 parenting orders, but whether the requirements of the rule in Rice & Asplund have been satisfied and upon that issue, the applicant bore the onus of establishing a sufficient change in circumstances.
The essence of the issue to be determined is whether there has been a material change in circumstances which indicate that it would be in the best interests of a child for there to be a reconsideration of the parenting orders. A change which is confined to seeking or extending the amount of contact time engages the principles in Rice & Asplund.[91] An application for a change of residence will undoubtedly do so. Thus, the applicant was required to identify any change and demonstrate that it was of sufficient weight to support a conclusion that it was in the children’s best interests to re-examine the regime set in place by the 2018 orders by proceeding to a full hearing.
[91] Marsden & Winch [2009] FamCAFC 152, [61].
The order now sought by the father is a change of residence with such other changes as he might contend to have been in the children’s best interests not being particularised pending a family report. In this context, it was somewhat curious the earlier report was not exhibited by him.
The mother submitted that in accordance with both the 2015 and 2018 orders, the children now spend five nights in each fortnight with their father and otherwise live with the her and accordingly, as the argument ran, that they now spend significant and substantial time with their father. It was submitted that the children enjoyed the benefit of a strong and meaningful relationship with each of their parents.
The mother submitted that there had been no material change of circumstances since the making of consent orders such as would justify re-litigation of existing parenting arrangements and that it was not in the children’s best interests that they be the subject of further litigation. It was further submitted that any further litigation was unlikely to result in parenting arrangements which differed significantly from those obtaining under the existing consent orders such as to outweigh the impact that litigation would have on the children. While seeking dismissal in accordance with the principles in Rice & Asplund, the mother correctly submitted that the application for an interim order was not an application for summary dismissal but rather the determination of the threshold issue “which requires an enquiry of whether it is in the children’s best interests to re-litigate”.[92]
Is a sufficiently material change is shown?
[92] See SPS v PLS [2008] FamCAFC 16, [59]-[61], [81].
Cognisant of the requirement to take the applicant’s evidence at its highest, it remains for him to establish a prima facie case of changed circumstances. If this is achieved, the Court should then consider whether that case demonstrates a sufficient change of circumstances as would justify embarking on a further hearing. When evaluating the applicant’s evidence on the assumption that it was to be taken at its highest I am not, however, prepared to accept uncritically so much of the ‘evidence’ as was framed in self-serving or conclusory terms. In many cases, the ‘evidence’ was cast in terms of a submission suggesting, for example, that the applicant “could not have contemplated this significant issue arising at the time” of the 2015 or 2018 final orders. Viewed more broadly, the applicant’s evidence was redolent of a strategy to direct a Gatling gun at the case with the object that the cumulative weight of the manifold criticisms made of the respondent would combine to discharge the onus of proof or persuade the Court to proceed to a full hearing.[93] In fairness, the respondent’s material was, in many respects, little different.
[93] Blayney Abattoirs Pty Ltd v State of NSW [1996] NSWSC 278, [9] (Powell JA).
In detailed and careful submissions, counsel for the father identified a number of factors which, cumulatively, were relied upon as supporting the conclusion that the onus of demonstrating a sufficient change in circumstances had been discharged. Contextually, it must be recognised that the submissions by the mother’s counsel pre-dated (by a week), the father’s submissions. In the result, it was necessary to align the respondent’s submissions with those of the applicant, and to do so notwithstanding that the father bore the onus of proof on the preliminary issue posed by the rule in Rice & Asplund. Having regard to the nature of the application, I consider it appropriate to address the issues as relied upon by the applicant in the order in which he had presented them.
Poor school attendance: The father prioritised this issue as his first matter of concern. He sought to demonstrate that the children were absent from school in a significant way. His evidence concentrated on this issue in particular detail. I am not prepared to accept this evidence “at its highest”. It was effectively undermined by the mother’s reply affidavit and I do not ignore that the applicant put it forward as his primary consideration in asserting a sufficient change in relevant circumstances. By her reply affidavit, the respondent established, by a series of emails exchanges with the children’s school, that the school’s attendance records were substantially inaccurate. The inaccuracies were, in part, explained by the circumstance that the applicant had advised the school the children would be absent on account of an overseas holiday which he intended to, but did not eventually, take. Otherwise, the respondent’s evidence fully accounted for the children’s absences from school and demonstrated, persuasively, that the applicant either had the children in his care for some of that time or knew the reasons for their absence (such as hospitalisation for suspected appendicitis or gastro). Having seized on the school records as supporting his primary claim to establish a sufficient reason for, relevantly, a change of residence, those records were demonstrably unreliable in the circumstances as described.
New wife: I accept that the applicant has remarried and that his new wife had not met the children until around October 2015. I am prepared to accept that, following the parties’ marriage in late 2017, the children developed a strong relationship with his new spouse. Although the applicant’s re-marriage is a relevant reason for re-opening custody issues, it is not a dispositive reason to grant relief – all factors remained relevant.
New stepsibling: I also accept that the recent arrival of the children’s new step-sister, who was born in 2019, is a matter of some relevance.
Claims of autism: Upon his evidence, he was concerned, indeed “blindsided” by the respondent’s disclosure in mid-2019 that the child had been consulting a psychologist who, upon becoming aware of the parents’ separation, had declined to consult further until she had met the applicant. I was troubled by this evidence. However, I do not accept that the parties could not have anticipated, when the final orders were agreed in 2015 and modified in 2018, that the respondent had formed the tentative view one of the children may be on the autism spectrum. I am not obliged to, and do not accept the applicant’s assertion – which is not evidence – whereby he attributes to this issue a conclusory description that the mother’s view on this diagnosis is, in or of itself, “extremely significant”. Insofar as the evidence informs this issue, it appears that from an early age the child exhibited shyness and a cautious or introverted temperament and that each of these matters were observed by Mr B before final orders were agreed. More recently, another health professional observed the child to demonstrate features consistent with anxiety and some traits of autism spectrum disorder. By contrast, the applicant is firm in his belief the child is not on the autistic spectrum. Moreover, it seemed to be assumed, rather than explored, whether, in light of this concern, the child’s best interests might not be advanced by preserving the existing parenting arrangements in a manner that would provide consistency to the child’s upbringing.
Dietary issues: So too, a recent assertion that one of the children suffers obesity is a matter which I have considered. Contextually: (a) the child in question is assessed as lying on the 97th percentile for both height and weight and that, upon adjustment for her exceptional height, lies on the 82nd percentile for her body mass index, which is considered to locate her at the upper limit of a healthy weight range; (b) the child’s younger sibling, being similar in height, has no dietary issues; (c) the mother accepts that the child in question may benefit from being more active; (d) the children spend five days per fortnight with their father. However, I regard this issue, in all the circumstances, as one which implicitly falls within the category of matters that should be within the reasonable contemplation of parties when the final orders were agreed. Inevitably, many children will encounter health issues of one kind or another which need to be addressed by their parents. Indeed, it is part and parcel of their equal shared parental responsibility. I accept the submission that the respondent has sought to provide a high level of care to the children.
Healthcare: The respondent submitted that the applicant’s “approach to the children’s health care has been erratic and nonsensical, as her approach swings between being negligent to overly paranoid and also she has doctor-shopped, and fabricated and exaggerated symptoms of the children.” The applicant contends that the respondent’s behaviour has escalated, particularly since 2018. Again, the applicant submitted that this too was not a matter which he could have contemplated either at the time of the making of the 2015, or 2018, consent orders. As stated above, the respondent contests these allegations and met them in detail. While the applicant’s evidence is to be taken at its highest this must be understood as being controlled by the principles referred to above and is also to occur in the context that the preliminary issue is to be considered as a merits based evaluation of all the evidence. There was force in the respondent’s submissions that the applicant’s claims to DHHS had resulted in each notification being closed at intake and that his claims were somewhat asymmetric inasmuch as he appeared prepared to make unsupported allegations while at the same time ignoring the manner in which the respondent referred the children for healthcare and additional support (which in some instances he objected to). It was somewhat telling that when filing his written submission the applicant took occasion to contend that the respondent had been erroneous in asserting that he had reported to DHHS that she suffered “Munchausen’s by Proxy” when, as he submitted, he had only reported that he suspected she had “Munchausen’s by Proxy”. The applicant did not contest that he had also repeated this concern in two of his affidavits.
Hygiene: This complaint, which overlapped with the applicant’s healthcare concerns above, included suggestions made by the children respecting matters such as the frequency with which they were being bathed by their mother. Assessing the matter on the merits, I do not ignore the respondent’s submission that there is no independent objective foundation for these criticisms by the applicant. Her evidence is that she has maintained a clean and safe environment for the children to live in and that they have enjoyed consistently good health.
Education: Again, this complaint, which overlapped with the applicant’s principal complaint concerning school attendance, was described in more adjectival terms as including failure to ensure adequate attendance, allowing the children to leave early, in failing to undertake homework and home-schooling to a sufficient level, also criticising the respondent for the children not commencing formal schooling until 2016 and 2019 respectively (matters which the respondent asserted he could not have contemplated at the time of the earlier consent parenting orders). These complaints stood in contrast with criticisms respecting the mother’s enrolment in tutoring programs. While the applicant’s objection to such enrolment was based upon the respondent having made this decision unilaterally it was one which fell at the margin of major long-term decisions. At the least, the respondent’s involvement of the children in such programs was consistent with a desire to enable the children to reach their full potential. Objectively, the children’s school reports support a conclusion that each of the children are achieving “consistently” in their approaches to learning. Insofar as this complaint rested on a failure to ensure adequate attendance, it was unfounded.
Discharge of equal shared parental responsibility: The applicant complains of a failure by the respondent to consult with him or to make a genuine effort to come to a joint decision about issues affecting the children,[94] including making decisions without his input or knowledge. Contrastingly, the respondent submitted, with some force that it was plain from the parties’ evidence she had consistently endeavoured to promote the children’s entitlement to a meaningful relationship with each of their parents. The applicant’s evidence identified a list of concerns supporting his complaint of the respondent’s failure to sensibly co-parent with him on multiple occasions. I have considered those complaints and they appear not to be without some substance. Contrastingly, the respondent submitted that the applicant seemed to assume a power of veto in relation to decision making and that the adoption of such a stance reflected a quasi-entitlement to sole parental responsibility. The parties’ evidence and submission on this issue gave me cause to reflect upon Mr B’s observations that while the applicant may wish to move too quickly in increasing his time with the children, correspondingly, the respondent appeared reticent and unwilling to be more flexible. This is an issue upon which I have dwelt at some length, particularly in circumstances where the applicant complains that the respondent fails to disclose matters which would ordinarily be shared between parents. There is also some suggestion in the evidence that the applicant has involved the children in his decision to make the present application.
[94] Act, s 65DAC(3).
Emotional/psychological development: The applicant complains that he has been shocked by some of the respondent’s behaviours including, as he alleges that she “would continue to co-sleep with both children in her care, until and including” the elder child attained the age of nine. Relatedly, the applicant contends, in effect, that the respondent’s parenting style is detrimental to their development. Again, this issue was explored in some detail by Mr B and is not, relevantly, new.
Respondent’s responsibility/disorganisation: The applicant complains also of the respondent’s alleged disorganisation and what he classifies as her irresponsible behaviours, including in failure to pay water bills, driving an unregistered vehicle for 16 months and, as he alleges, “breaching COVID-19 laws.” The respondent answered each criticism. In my view, there was force in her submission that, objectively, she has endeavoured to discharge her parenting role and provided extended opportunities to the children for their development, while at the same time establishing and conducting her career. It also lends some support for a conclusion that the applicant may be somewhat rigid in his expectation that his parenting views should be applied including in cases where they differ with those which the respondent has adopted. Contextually, this too is not new with the question of a co-parenting model being ventilated in the course of Mr B’s report.
Children’s attachments: Finally, the applicant contends for a shift in the nature of the children’s relationship with their parents, repeating the assertion that “the children are now also just as attached, if not more attached to him than the Respondent.” This too was characterised as a substantial development which had intensified in the past 12 months. Why the applicant arrogated to himself the status of the children’s primary attachment figure was not clear. In this context, an assertion made by the applicant is that he has “a superior parenting style.” It is demonstrable that the applicant has held this view well before 2015.
Primary & additional considerations:
Beyond the matters raised by the applicant, attention was drawn to the failure to address the primary, and indeed, additional considerations posed by s 60CC of the Act. While the applicant’s submissions were not framed by reference to those primary and additional considerations, this may be understood from at least two perspectives. First, that it is not necessary to fully consider and investigate all of the primary and additional factors that are prescribed by s 60CC when a Rice & Asplund issue arises. Secondly, in any event, it is plain that the applicant’s evidence provided extensive material upon which those considerations could be addressed. So too, did the respondent’s evidence. The nature of the relief sought by the applicant to re-open final orders, still allows for some consideration of whether, upon a preliminary assessment, those factors militate in favour of or against the likelihood of the relief being granted and in turn whether the nature of the likely changes is such that further ongoing litigation may cause potential detriment to the children.
To the extent those considerations are relevant, I have sought to do so.
While the respondent’s submission on this topic were made in rather emphatic terms, it was fair to observe that rather than extolling any parenting virtues of the respondent, instead the applicant’s evidence was replete with criticisms and complaints about her deficiencies. I accept that the slant placed by the respondent upon the evidence fairly reflected the nature of much of the evidence which the applicant had adduced.
In turn, this fed an assessment of the primary consideration posed by par 60CC(2)(a); namely, the benefit to the children of having a meaningful relationship with both of their parents. More precisely, I have reflected upon whether it would promote or derogate from such benefit if a change of residence was to be ordered. I also accept that the constant refrain in the applicant’s evidence of criticism of the respondent supported a conclusion that the applicant held a level of antipathy toward her and that this was a matter to be considered when evaluating the merits of the application as a preliminary issue. I also accept that the further primary consideration raised by par 60CC(2)(b) as to the need to protect children from harm brought into account the consideration that an equal shared care arrangement does necessitate close cooperative parenting and communication between the parties. In light of the trenchant criticisms made of the respondent it is appropriate to reflect upon this issue when evaluating the merits of the application.
As presently appears, the children enjoy a positive relationship both with their respective parents and now the applicant’s new spouse.
Further, despite the applicant’s complaint of unilateral decision-making, there is no cogent evidence that either party has failed to take the opportunities to participate in decision-making upon major long-term issues affecting the children. No case was put by either party of a failure in the other to take such opportunities. Equally, each of the parties demonstrates a clear desire to spend time and communicate with their children. Indeed, the present application was to increase such time.
In addressing the extent to which either parent has, or has failed, to fulfil their obligations to maintain the child, I do not consider that the parties presented this issue as being at the forefront of the application. Further, I regard this consideration as being separate and distinct from the applicant’s many criticisms of the respondent which were more appropriately located as a primary consideration in terms of whether the respondent had neglected the children, a proposition I reject.
The respondent was critical of the applicant’s evidence for a failure to address the likely effect of the changes which his proposed orders would have upon the children. Thematically, the respondent identified that the applicant did not address the likely effect upon the children which a change of residence would have in terms of a separation from their mother and conversely, that the applicant appeared to be intransigent in his insistence that his parenting style should predominate over that adopted by the respondent (being a style he did not accept). It was submitted that when account was taken of each of those matters in combination, this placed in serious doubt the extent to which the applicant would permit or facilitate maintenance of the children’s relationship with their mother. I saw force in this submission.
While I have reviewed each of the additional considerations in s 60CC(3) of the Act, no others were the subject of specific submissions.
Further, treating any other fact or circumstance that the court considers relevant as an additional consideration to be addressed in determining what might be in the children’s best interests, I am reminded of the significant policy against the pursuit of further litigation, particularly where it is sought to re-litigate at relatively frequent intervals. I also take into account the settled principle that re-litigation is inimical to the best interests of children unless the likelihood of a significant variation is shown to outweigh the potential detriment to them.
Likelihood of a significant variation to orders
The requirement to assess whether there is a likelihood of the orders being varied in a significant way and a full hearing calls attention to the status quo as established by existing orders and what is sought by the applicant by way of relief in the application for new parenting orders. While I have considered what weight should be attached to the status quo which obtains as a result of the 2018 Orders, this is a factor of variable quality to be considered amongst all other factors.
The existing orders confirm the applicant’s consistent position that he has previously sought and agreed in orders for equal shared parental responsibility. The orders made in 2018, by consent, expanded the amount of time which he had agreed upon in 2015.
The likelihood of the variation sought by the applicant also falls for evaluation having regard to the nature of the changes he now seeks; in particular, that there should be a change in residence. To accede to this application would effect a substantive change to parenting arrangements. This is not an application for a minor change of the kind which might, in some cases, pass the threshold posed by the rule. Further, while the applicant sought to defer (until after receipt of a family report), the particularisation of the final parenting orders which were to be sought, it is clear that he also seeks an order for at least equal time.
In my opinion, for the reasons above, there is not a good or sufficient likelihood of the orders being varied in a significant way.
Nature of likely changes and the potential detriment
Notwithstanding my view as the likelihood of a change in residence being ordered, I must also weigh the nature of those changes against the potential detriment to the children caused by the litigation itself.
From one perspective, this can be an ambulatory consideration. On the one hand a small change in parenting arrangements may be held up as justifying a conclusion that further litigation is not warranted. However, on the other hand, a substantial change, which may sometimes be seen as appropriate on the evidence, also falls for evaluation in the context that this enquiry is focused upon the potential detriment which ongoing litigation may cause to the children. In my view, this causative enquiry requires that an evaluation be made of the relative strength of the applicant’s case being accepted at a final hearing. Expressed in other terms, if a claim for a substantial change (such as change in residence or the allocation from equal to sole parental responsibility), was viewed at a preliminary level of having a low or not good prospect of success, this would magnify the significance of the potential detriment to the children when weighing those competing considerations.
At both a level of public policy and principle, it is well recognised that ongoing litigation is inimical to the best interests of children. Since those best interests are the paramount consideration in the making of parenting orders, the issue of potential detriment should not be relegated to a position of marginal significance in the determination of this issue.
Resolution
I am satisfied that in the circumstances of this case it is appropriate to consider the Rice & Asplund issue by way of preliminary determination and not to defer the issue, either until after the receipt of any family report or until a final hearing. For the sake of clarity, I have not considered the application as being for summary dismissal of the claim.
I do not and need not determine whether the applicant’s evidence supports a conclusion (as submitted by the respondent), that his voluminous material indicates needless animosity and unnecessary aggression or hostility towards her. To approach the issue in that way merely distracts attention from the essential question posed by the rule.
I am not satisfied that it is in the best interests of the children to undertake a reconsideration of the parties’ parenting arrangements as agreed in their consent orders 2015 and revised in their 2018 consent orders. I do not consider that any further such enquiry should occur.
The court should treat the terms of the final parenting orders agreed upon in 2015 and then 2018 as properly reflecting the parties’ views as to what parenting orders were being made in the best interests of their children. The fact that the parties embarked upon litigation is itself confirmatory of their disputation; similarly, the consent orders require the conclusion that such disputation has been brought to an end, and as it must be.[95]
[95] Carriel & Lendrum (2015) FLC93-640, [57].
I have paid regard to the procedural history, the earlier affidavits, Mr B’s family report and the parties’ 2015 and 2018 consent orders.
In terms of the length of time that the children have been in their current situation, the operative orders were varied with effect from early 2018. There is no cogent evidence that the children’s ages and levels of maturity are such that between 2018 – 2020, a sufficient change has been demonstrated. Although the passage of time will inevitably result in some changes to a family, the types of circumstance which may allow re-litigation of a final parenting order must be circumscribed.
I have addressed above each of the issues upon which the applicant placed reliance in seeking to discharge the onus of satisfying the Court that there had been a sufficient change in circumstances as to justify a further full hearing in relation to parenting arrangements. I am not satisfied that those matters, individually or cumulatively discharge that onus of proof. Notwithstanding that the applicant advanced a large number of matters, in my view, there are no startling new circumstances that would justify re-litigation upon agreed parenting arrangements. Nor do those matters persuade me to exercise my discretion to allow the proceeding to move beyond a preliminary hearing to a full hearing.
I accept that it may be perfectly understandable that the applicant might wish to see more of the children, but this is not of itself a sufficient reason to interfere with the existing final Order which was made in 2015 and varied by consent in 2018 following a mediation. As recently as March 2020, the parties were agreed in the children travelling with the applicant for an extended period and this would have occurred but for the intervention of the Covid-19 pandemic. The applicant’s evidence is that he also sees the children on other occasions when they have extra-curricular activity. This is not a case in which there is no prospect of the parties agreeing to expand the time that the children may spend with their father on occasions beyond those which are stipulated.
Further, there is a marked distinction between a change in residence from a mere change in spend time arrangements. If this matter was permitted to proceed to a full hearing, the issues raised would be extensive. Quite apart from the potential detriment to the children of ongoing litigation, the scale of the dispute which is sought to be escalated and ventilated at a final hearing is clearly illuminated by the evidence filed to this point. In this specific context, I pay particular regard to the possible advantages or disadvantages of a change in residence. I consider that there is substance in the respondent’s submission that insufficient consideration has been given to the implications for the children of a change of residence and how this would affect them, especially in removing them from the care of the respondent, which has been constant under the existing agreed regime. I am fortified in those conclusions by the litany of complaints which have been raised by the evidence and submissions.
In assessing whether a sufficient change of circumstances has been shown as to justify embarking on a hearing, I have also evaluated the evidence against the principles in Part VII of the Act, including the objects of that Part, the presumption of equal shared parental responsibility and the steps required by the Act consequent upon the order sought to be made in this application. While the parties’ submissions were not framed by reference to this principle, the evidence did not approach the level of displacing the presumption of equal shared parental responsibility. In any event, I regard the 2018 Order as having been agreed and negotiated upon the application of the principles provided by Part VII. It follows that I consider the parties’ agreed position reflected their view that their Order would finally determine the parenting arrangements which would be in the children’s best interests and further, that the spend time arrangements which it provided laid out appropriate substantial and significant time for the children to spend with their respective parents.
I am not prepared to entertain an application to alter the existing agreed 2018 Order in part because I consider that the important interests of these children are unlikely to be served by frequent displacement or the uncertainty of prolonged or repetitive proceedings. Just as the finality of litigation is an important consideration, so too, the adverse impact of repeated litigation is inimical to a child’s well-being and so contrary to their best interests. In short, the enduring conflict between parents is itself harmful to these children and I am not persuaded that the possible benefit of allowing the matter to proceed to a full hearing would outweigh the detriment to the children of that hearing taking place.
I conclude that it is in the interests of these children that they not be the subject of further litigation and that this consideration weighs more powerfully in their interests than to allow the application to continue.
Family report
The applicant’s alternative submission was that the Court should, in effect, defer the determination of the Rice & Asplund application until a family report had first been obtained. The question whether the Court should make an order for a family report is to be decided having regard to the best interests of the children.[96]
[96] Elmi & Munro [2019] FamCAFC 138, [55]; Hart & Sellwood [2016] FamCAFC 254, [4], [36], [39].
Upon the principles considered above, in an appropriate case the Court may properly exercise its discretion to determine a Rice & Asplund question without acceding to an application for a family report including by way of a preliminary determination of that question.[97]
[97] Walter & Walter [2016] FamCAFC 56, [113]-[114]; Daniel & Fulton [2018] FamCA 39, [115].
For the reasons given above, I have determined that it is not in the children’s best interests to undertake a further enquiry of the parties’ agreed, and re-negotiated, parenting arrangements, either before first obtaining a family report or to do so only at a final hearing.
In my opinion, in this case, to do so would be inimical to the significant purpose of the principle in Rice & Asplund to not allow further litigation of these issues unless a sufficient change has first been demonstrated. The children should not, in my view, have the spectre of further litigation clouding their childhood and as stated above, I consider it is appropriate to determine the matter as a preliminary issue and to conclude that there should be no re-litigation of issues which have been explored both in 2015 and 2018, including with the benefit of experienced legal practitioners, a highly experienced family report writer and by mediation.
Conclusion
As I have determined that it would not be in the children’s best interests to permit the matter to proceed beyond a preliminary hearing, it follows that the initiating application should be dismissed. Orders will be made accordingly.
Despite that conclusion, I note that the clinical psychologist who was consulted to address the respondent’s concern that the subject child may be on the autism spectrum, concluded in a report dated September 15 2019, with a recommendation that establishing effective communication between the parents was “essential and paramount for therapy to continue to support [the child] and for co-parenting” and that the parents should attend an independent clinical psychologist to work on effective communication with further therapy sessions with the child to be “suspended until effective communication and co-parenting [is] established, and parents agree on therapy [for the child].”
It is possible to discern that the parties may be more focused upon their conflict rather than in addressing the best interests of the children. Particularly is that so in circumstances where Mr B’s recommendation echoed concerns of precisely the same kind and reminded the parties of the importance of recognising that the greatest extant threat to the children was their parents’ ongoing conflict following separation. It is to be hoped that the order for family therapy, to which the parties were agreed, may be of assistance in enabling them to refocus upon their children.
I am unaware whether either party proposes to seek costs. Directions will be given to enable any such claim to be decided on the papers.
I certify that the preceding one hundred and sixty six (166) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Associate:
Date: 6 August 2020
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