CASTON & CASTON

Case [2020] FCCA 2162

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
Beck & Beck [2004] FamCA 92
Bell & Nahos [2016] FamCAFC 244
Bigg & Suzi [1998] FamCA 14
Blayney Abattoirs Pty Ltd v State of NSW [1996] NSWSC 278
KB v TC (2005) FLC 93-224
Burton & Burton (1979) FLC 90-622
Carriel & Lendrum (2015) FLC93-640
CDJ v VAJ (1998) 197 CLR 172
CDW & LVE [2015] WASCA 247
Clone Pty Ltd v Players Pty Ltd (In Liquidation) (Receivers & Managers Appointed) [2018] HCA 12
Cubbin & Cutler and Anor [2018] FamCAFC 84
D & B v L [2004] WASCA 116
D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1
Daniel & Fulton [2018] FamCA 39
Dariverenli v South Eastern Sydney Local Health District [2019] NSWCA 129
DL & W (2012) FLC 93-496
Edwards & Edwards (2006) FLC 93-306
Elmi & Munro [2019] FamCAFC 138
F & N (1987) FLC 91-813
Freeman & Freeman (1987) FLC 91-857
Grant & Andrews & Anor [2018] FamCA 901
Granville & Blakeslee [2017] FamCAFC 162
Gronow v Gronow (1979) 144 CLR 513
Hart & Sellwood [2016] FamCAFC 254
Hayman & Hayman [1976] FLC 90-140
Holzmann & Holzmann [2018] FamCAFC 2
Housing Commission of NSW v Tatmar Pastoral Co [1983] 3 NSWLR 378
Hunter v Transport Accident Commission [2005] VSCA 1
Hutchinson Constructions Services Pty Ltd v Les Quatre Musketeers Pty Ltd [2016] NSWCA 135
Jacobsen v Ross (1995) 1 VR 337
Jiang & Yip [2017] FamCA 224
King v Finneran (2001) FLC 93-079
Kovan Engineering (Aust)…

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Details
AGLC
CASTON & CASTON [2020] FCCA 2162
Case
[2020] FCCA 2162
Decision Date

CaseChat Overview and Summary

In the matter of *Caston & Caston*, the applicant father sought to vary final consent parenting orders concerning the parties' two children. The respondent mother sought the dismissal of the application. Previous consent orders had been made in 2015 and subsequently varied in 2018 to increase the children's time with the applicant father. In 2020, the applicant father sought the discharge of all previous orders, a change of residence, and liberty to particularise further orders pending a family report.

The court was required to determine whether to dismiss the applicant father's application to vary final parenting orders, applying the principles established in *Rice & Asplund*. This involved considering whether a substantial change in circumstances had occurred since the making of the final orders, and whether re-litigation would be contrary to the best interests of the children. The court also had to consider the primary and additional considerations under section 60CC of the *Family Law Act 1975* (Cth) in assessing the merits of the application at a preliminary stage.

Judge A Kelly reasoned that the court is obliged to take the applicant's evidence at its highest when considering a preliminary issue. The court noted that policy considerations favour the finality of litigation, as re-litigation is inimical to the best interests of children. While the applicant's circumstances had changed to include a new spouse and child, the court found that the applicant's evidence was largely comprised of criticisms of the respondent mother's parenting. The court considered that the benefit to the children of having a meaningful relationship with both parents, a primary consideration under s 60CC(2)(a), was not necessarily promoted by a change of residence given the applicant's apparent antipathy towards the respondent. Furthermore, the need to protect children from harm, under s 60CC(2)(b), was relevant given that equal shared care arrangements necessitate close cooperation, which appeared unlikely given the criticisms levelled. The court concluded that it was appropriate to consider the application by way of a preliminary determination.

The court ordered that the Initiating Application filed on 20 March 2020 be dismissed. The parties were directed to file and serve any submissions as to costs within fourteen days, and any question of costs was to be agreed or decided on the papers.

Orders

Orders of the court

1.

The Initiating Application filed on 20 March 2020 be dismissed.

2.

Within fourteen (14) days, the parties file and serve any submissions as to costs (not exceeding three pages, font 12, 1.5 spacing).

3.

Any question of costs be agreed or decided on the papers.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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].

Ratio Decidendi

Legal Principle Established

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.