CASTRO & PAULSON

[2021] FCCA 1130

FEDERAL CIRCUIT COURT OF AUSTRALIA

CASTRO & PAULSON [2021] FCCA 1130

Catchwords:
FAMILY LAW – Parenting Orders – Application to re-open litigation pursuant to rule in Rice & Asplund.

Legislation:

Family Law Act 1975 (Cth), s.64B

Cases cited:

Rice & Asplund (1979) FLC 90-725

Paulson & Castro [2016] FCCA 3517

Bennett& Bennett (1991) FLC 92-191
D & Y (1995) FLC 92-581
SPS & PLS [2008] FamCAFC 16
King & Finneran [2001] FamCA 344
Searson & Searson [2017] FamCAFC 119
Marsden & Winch [2009] FamCAFC 152

Applicant: MR CASTRO

Respondent: MS PAULSON

File Number: BRC 6742 of 2020

Judgment of: Judge Lapthorn

Hearing date: 26 November 2020

Date of Last Submission: 26 November 2020

Delivered at: Brisbane

Delivered on: 26 May 2021

REPRESENTATION

Counsel for the Applicant: Mr Gordon

Solicitors for the Applicant: ABF Legal

Counsel for the Respondent: Ms McLennan

Solicitors for the Respondent: Hardings Gulhane Solicitors

ORDERS

1. The Further Amended Initiating Application filed 13 August 2020 be dismissed.

2. The father file written submissions in relation to costs within 21 days of today’s date.

3. The mother file written submission in reply within a further 14 days.

IT IS NOTED that publication of this judgment under the pseudonym Castro & Paulson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 6742 of 2020

MR CASTRO

Applicant

And

MS PAULSON

Respondent

REASONS FOR JUDGMENT

Introduction

1. The parents of seven year old X obtained final parenting orders in relation to his care on 14 October 2016.  He was only two years at the time.  His father, Mr Castro, is seeking to re-litigate the parenting arrangements.  In order to do so he will need to show that there has been a significant change of circumstances.  This is known as the rule in Rice & Asplund[1].  The mother, Ms Paulson, opposes the re-opening of the litigation arguing that there has been no change of circumstances, significant to warrant a change in the current orders.  She seeks that his application be dismissed.  In the event the mother is not successful in resisting the re-opening of the parenting proceedings she asks the court to order that the father pay security for costs pursuant to s 117.  The father opposes this order.

   [1] (1979) FLC 90-725

2. The orders made on 14 October 2016 provided for the child to live primarily with the mother and for her to have sole parental responsibility for him, subject to her consulting the father prior to any final decision.  The child’s time with the father was to gradually increase such that by the time he turned five he would be spending each alternate weekend with the father from afterschool Friday to 4.30pm Sunday as well as from after school to 7pm Thursday in the other week.  There was provision for the child, once he commenced primary school, to spend time with the father for four consecutive nights during the school holidays at the ends of terms one, two and three and for two blocks of four nights during the summer school holidays.  Orders were also made for the child to see the father on special occasions and a notation that the parties agreed to take steps to review the orders at the commencement of school term four in 2019. These orders were made after a contested hearing before another judge.  At paragraph 29 of the Judgment[2] the trial judge said when referring to the orders she intended to make:  ….There is also a notation to the Minute that I do not need to go into which essentially provides an opportunity for the matter to come back to the Court without any Rice & Asplund problems.  The published order did not make provision in those terms.

   [2] Paulson & Castro [2016] FCCA 3517

3. If the father is successful in his application to reopen the litigation he would seek orders that would provide him with sole parental responsibility and for the child to live in an equal shared care arrangement over a two week cycle as follows:

   a)In week one:

   i)with the mother from Monday after school to Wednesday before school;

   ii)with the father from Wednesday after school to Monday before school;

   b)In week two:

   i)with the mother from Monday after school to Wednesday before school;

   ii)with the father from Wednesday after school to Friday before school;

   iii)with the mother from Friday after school to Monday before school.

4. The child would spend week about time with the parents during the school holidays under his proposal.

5. Throughout this judgment I will refer to the parties as the father and the mother and X as the child.  I mean no disrespect in doing so.

Legal Approach

1. Although the court has the power to vary or set aside parenting orders[3], a court is usually reluctant to entertain a fresh application for parenting arrangements because it is rarely in a child’s best interest to have ongoing litigation about his or her care and wellbeing.  The Full Court of the Family Court in Rice & Asplund held:

   [The court] should not lightly entertain an application to reverse an earlier custody order. …  the court would need to be satisfied by the applicant that … there is some changed circumstance which will justify such a serious step, some new factor arising, or, at any rate, some factor which was not disclosed at the previous hearing which would have been material. …  These are not necessarily matters for a preliminary submission, but they are matters that the judge should consider in his reasons for decision.

   [3] Section 64B(1)(b)

2. It is for the court to exercise its discretion in deciding whether to embark upon a full hearing of a matter or to determine the ‘threshold’ issue as a discreet point by way of preliminary determination.[4]  Warnick J in SPS & PLS[5] considered the term ‘threshold’ in this context to mean:

   … ‘the first question to be determined’ and which, depending on the answer to it, may be dispositive of an application for parenting orders, irrespective of when in a hearing it is posited and answered.[6]

   [4] Bennett& Bennett (1991) FLC 92-191, D & Y (1995) FLC 92-581

   [5] [2008] FamCAFC 16

   [6] ibid at page 13

3. Collier J in King and Finneran said:

   To apply the test in Rice v Asplund is to make an assessment on the material then available to the court as to whether or not the matters raised in that material make it necessary or proper in the best interests of the children, the subject of the litigation, to allow further proceedings.  In arriving at such a decision, the court will give consideration to the importance or seriousness of the issues raised, both individually and where necessary collectively, and the impact that they may have on the children.[7]

   [7] [2001] FamCA 344 at paragraph 44

4. His Honour also said:

   The rule in Rice v Asplund is a rule evolved to protect children from involvement in further unnecessary litigation.  To require a court to make a detailed determination of the matters set out in section 68F would defeat the purpose of that protection.[8]

   [8] ibid at paragraph 41. His Honour’s reference to s.68F was to the Family Law Act as it was prior to the 2006 amendments. See s.60CC

5. Murphy J in the Full Court decision of Searson & Searson[9] endorsed the approach taken by Warnick J and considered a number of authorities relative to the consideration of the Rice v Asplund  argument being considered as a preliminary point.  It is worth repeating this analysis of these authorities:

   [9] [2017] FamCAFC 119 Kent and Loughnan JJ agreed with the decision of Murphy J

   [8]    It is well settled that the “rule in Rice & Asplund” can be applied at the outset of a hearing or proceedings or at the end of a hearing.[10]

   [10] Rice & Asplund (1979) FLC 90-725; SPS & PLS (2008) FLC 93-363; Marsden & Winch (2009) 42 Fam LR 1; Miller & Harrington (2008) FLC 93-383

   [9]    In the important decision of SPS & PLS,[11] (“SPS”) Warnick J held that the discussion of the rule in the various authorities had “not always used consistent terminology”. His Honour noted, in particular, that the term “threshold” has had different connotations. His Honour went on to say that he would in that judgment “refer to the situation arising when the question is posed and answered at the outset of a hearing as treatment of the question as a ‘preliminary matter’”.[12]  It is in that sense that the expression is used in these reasons of mine. As it seems abundantly clear to me, the treatment of the rule in that manner is what was contemplated and undertaken by the parties and by her Honour in the proceedings below.

   [11] (2008) FLC 93-363 approved in Marsden & Winch (2009) 42 Fam LR 1; Miller & Harrington (2008) FLC 93-383; Walter & Walter [2016] FamCAFC 56

   [12] SPS at [46]

   [10]  In SPS, Warnick J went on to hold[13] that:

   [13] at [48]

   … At whatever stage of a hearing the rule is applied, its application should remain merely a manifestation of the “best interests principle”.

   …

   The application of the rule is closely connected with the nature of, and degree of, change sought to the earlier order.

   [11]  His Honour went on to say this:[14]

   … [I]n my view when the threshold question described in Rice and Asplund is determined as a preliminary matter, it remains a determination “on the merits”. Where an application is dismissed at a preliminary stage, it is not dismissed for some technical reason, such as the failure of a party to appear or some lack of compliance with form and procedure but rather because, assuming the evidence of the applicant is accepted, there is an insufficient change of circumstance shown to justify embarking on a hearing. Though sometimes unstated, the underlying conclusion will or ought be that the interests of the child in not being the subject of further litigation is more powerfully in the child’s welfare than to allow the application to continue.

   [12]  Yet, as his Honour was at pains to point out, the rule is not the application of some esoteric principle but rather, the practical application of a principle designed to avoid “endless litigation” to the detriment of the relevant children in circumstances where otherwise the principles of res judicata do not apply.[15]

   [13]  Thus, for example, Nygh J said in McEnearney & McEnearney:[16]

   … the principle that there be an end to litigation has equal force in custodial disputes and in some respects may have even greater force in custodial disputes. The last thing, of course, that this court would wish to see would be a perennial football match between parents who because the strict principles of res judicata are not applicable might seek to canvass again and again the question of custody of a child with the enormous psychological harm which they would be inflicting not only upon each other but especially upon the child.

   [14] SPS at [81]

   [15] Rice & Asplund at 78,905 per Evatt CJ

   [16] (1980) FLC 90-866 at 75,499

   [14]  To similar effect, Warnick J said in SPS:[17]

   Another end served by the rule is that it avoids one judge substituting his or her opinion of what is in the best interests of a child for that of another judge, though both opinions are based on the same or similar facts. This “evil” is avoided by a requirement that the previous order should not be altered unless there has been a change of circumstances sufficient to justify that result.

   [15]  The “evil” referred to is the undoubted harm to children of “a perennial football match between parents” and the canvassing “again and again” of issues relating to their best interests. That situation can in my view be distinguished from circumstances in which the parties express their agreement about parenting arrangements in a consent order but are now no longer in agreement and where it is said that the now absence of agreement is due to circumstances that have changed since the making of the consent orders.

   [17] SPS at [58]

6. In Marsden and Winch[18] the Full Court[19] said:

   [48] In summary, the best interests issue arises because there are so many changes in the lives of families that the changed circumstances that will permissibly allow re-litigation of a decision must be circumscribed, otherwise there would exist in some cases the spectre of endless litigation finalising only when the child attains 18 years of age and the courts no longer have jurisdiction.

   [49] However, even that simple formulation must be subservient to the nature of the application itself.  This is the genesis of the “rule” in Rice & Asplund and as Warnick J says it is founded on the notion that continuous litigation over the child or children is not generally in their interests.  It is usually hoped that the determination of a controversy concerning children by a court will result in at least a reasonable period of stability of those arrangements and freedom from the stressful and conflictual effects of litigation on both parents and children.  In addition, recent research demonstrates that conflict between parties is itself harmful to children.[20]

   [50] Nevertheless, there are significant changes that occur and which do require a court to reconsider decisions previously made.  Whether in a particular case a court should be willing to embark upon another hearing concerning the child and parent, or whether to do so would itself be demonstrably contrary to the best interests of the child, is a decision to be made in each particular case.  How is that decision to be made?  The court must look at:

   (1)    The past circumstances, including the reasons for the decision and the evidence upon which it was based.

   (2)    Whether there is a likelihood of orders being varied in a significant way, as a result of a new hearing.

   (3)    If there is such a likelihood, the nature of the likely changes must be weighed against the potential detriment to the child or children caused by the litigation itself.  Thus, for example, small changes may not have sufficient benefit to compensate for the disruption caused by significant re-litigation. 

   [18] [2009] FamCAFC 152

   [19] Bryant CJ, Finn and Cronin JJ

   [20] See for example Jennifer McIntosh ‘Enduring conflict in parental separation: Pathways of impact on child development’ (2003) 9 Journal of Family Studies 63 and Jennifer McIntosh and Richard Chisholm ‘Cautionary notes on the shared care of children in conflicted parental separation’ (2008) 14 Journal of Family Studies 37.

Material Relied On

1. In support of his case the father relied on the following documents:

   a)Further Amended Initiating Application filed on 13 August 2020;

   b)Notice of Risk filed on 2 June 2020;

   c)Affidavit of Mr Castro filed on 2 June 2020;

   d)Affidavit of Mr Castro filed on 11 August 2020; and

   e)Financial Statement of Mr Castro filed 23 November 2020.

2. The mother relied on:

   a)Response filed 17 August 2020;

   b)Notice of Risk of Ms Paulson filed 17 August 2020;

   c)Affidavit of Ms Paulson filed 17 August 2020;

   d)Financial Statement of Ms Paulson filed 1 September 2020

   e)Affidavit of Dr A filed 1 June 2015; and

   f)Family Report: Family Consultant B dated 19 October 2015.

3. I have had regard to all of the material referred to above along with the reasons for judgment of Her Honour Judge Purdon-Sully delivered 14 October 2016 and both the written and oral submissions made by each of the parties.

4. The matter proceeded on the papers by consent of the parties.  Consequently it is not possible to determine any significant factual disputes.  I am however satisfied that the preliminary issue of whether the applicant father has established that there has been a significant change of circumstances, can be determined on the material before the court. Throughout these reasons I will refer to a number of facts.  Any such reference should be regarded as a finding of fact unless a contrary intention is clear from the context.

Evidence

1. The father is 46 years of age and the mother 41.  They commenced living together in May or June 2013 soon after the mother becoming pregnant with X.  They separated under the same roof in November 2013 and began living separately on 12 April the following year when the mother and child moved to the maternal grandmother’s home.  X was born 2014 making him now seven years of age.

2. In May, when the child was only x weeks of age and being breastfed, the father retained the baby in his care whilst on a pre-arranged two hour visit.  The following day the mother was granted a recovery order and the child was returned to her that night with the assistance of the police.  The mother’s application for a recovery order, commenced the first round of litigation between the parents in relation to X’s parenting.  The father had however, filed an application for a domestic violence protection order on 22 April 2014 naming the mother as the respondent but this application was dismissed on 14 May 2014. 

3. There were a number of incidents during May and June 2014 where the father would attend at the mother’s home uninvited or approach her in public causing her distress.

4. In June 2015 the contact centre supervising the father’s time with the child withdrew their services.  The mother was successful in obtaining a protection order against the father on 9 September 2015.

5. After a contested hearing from 11 to 14 October 2016 the trial judge made orders that provided for the mother to have sole parental responsibility; for the child to live with her; and to spend time with the father after a graduated period from after school Friday until 4.30 pm Sunday each alternate weekend and each Thursday from after school until 7pm.  The orders for sole parental responsibility and the child’s primary residence were made by consent. At paragraph 29 of the reasons for judgment delivered ex tempore on the last day of the trial the trial judge, when noting some agreed orders, recorded:

   [29]…… There is also a notation to the Minute that I do not need to go into which essentially provides an opportunity for the matter to come back to the Court without any Rice & Asplund problems.

6. With respect to the trial judge, there was no notation to that effect forming part of the orders, however there was this notation:

   [A]  The mother and the father agree to take steps to review these Orders at the commencement of term 4 in 2019 when the child is due to complete his first year of primary school (his preparatory year).

7. Less than two years after the making of those orders, the father filed an Initiating Application on 30 August 2018 seeking orders that he have sole parental responsibility and for the child’s time with each parent to be shared equally.  He filed a Notice of Discontinuance in relation to this application on 15 March 2019.

8. Notwithstanding that Notice of Discontinuance he again filed an Initiating Application on 2 June 2020 seeking sole parental responsibility for the child and for an equal shared time arrangement.  He filed an Amended Initiating Application on 12 August and a Further Amended Initiating Application the following day.  The orders sought were largely consistent with those sought in his 2018 discontinued application.

Father’s Case as to Change of Circumstances

1. The Father submitted that there has been a change in circumstances sufficient to warrant the matter being re-litigated.  It was argued that at the time when the orders were made in 2016 the child was very young.  He had not yet turned three.  He was also only spending daytime with the father prior to the orders.  He said that the mother had refused to allow the father to volunteer at the child’s school nor had she involved him in decisions regarding the child’s health such that the Court would be satisfied that she is not promoting a relationship between the child and the father.  He also argued that the notation, referred to above, contemplated the matter being re-opened and the mother had not taken any steps to review the orders as provided for in that notation.

Mother’s Case as to Change of Circumstances

1. The mother argued that there was no new factor or significant change of circumstance on the father's evidence that warrants a re-opening of the litigation.  It was further argued that his approach to parenting and his attitude towards the mother remained a constant with what was a 'live' issue at final hearing in 2016.

Discussion

1. In the orders for sole parental responsibility made by consent[21] on 14 October 2016 provision was made for the mother to make the final decision in relation to the child’s long term interests including his health and education although she was to consult with the father and consider any input he wished to offer.  The father gives evidence of ongoing issues in this regard. 

   [21] The reasons for judgment indicate this order was made by consent but the published version of the orders appear to indicate they were made by the court.

2. In his affidavit he gave evidence of emailing the mother in 2018 to discuss issues raised in a report from the child’s then early learning centre.  The report raised a number of concerns about the child’s presentation including exhibiting mood swings, chaotic and erratic behaviour and frustration.  The mother sought a referral to a paediatrician from the child’s general practitioner.  The father’s evidence is that the general practitioner told him that he would not give the referral unless the father gave permission to do so.  The father did not give any evidence as to whether he told the doctor the mother had sole parental responsibility for medical issues. The mother sought a second opinion from another general practitioner and emailed the father asking him if he was happy for her to seek a referral to see a certain paediatrician.  In doing so I am satisfied the mother was acting in accordance with Orders (1) and (2) of the orders made on 14 October 2016.  The father expressed an opinion in his affidavit filed 2 June 2020 that the mother was motivated not by a desire to obtain a second opinion but because the initial general practitioner would not give the referral asked of her.  The expression of this opinion is not evidence of the mother’s motivations but the father’s belief.  It is consistent with his beliefs as to the mother’s actions exhibited at the time of the 2016 hearing before the original trial judge.  In other words he was critical of her motivations.  He went on in his affidavit to impress upon the court that he was right in that the report did not establish that the child had autism.  He complained that the mother did not seek his permission to take the child to see the second general practitioner.  His criticism is misplaced.  She did not need his permission.  The mother has, by virtue of the orders made in 2016, sole parental responsibility.  Although the mother is required by those orders to consult with the father before a decision is made that does not extend to each time she wishes to take the child to a medical practitioner.  If the mother intended to place the child on a significant course of medication then she would be required to consult with the father but ultimately it would be her decision.

3. The father also complained in his affidavit that the mother had arranged an intake interview with the child’s school but failed to inform him of it.  The mother was not required to do so and in the context of the significant conflict evident at the original trial the mother would have been child focused in not involving the father in this process.  I reject the father’s assertions that it would have been in the child’s best interests to have both parents there with him.  Although the father gave evidence of the parties both attending the child’s swimming lessons, which he saw as a positive for the child, he goes on later in his affidavit to complain about the mother’s conduct at some of the lessons.

4. The father’s affidavit is a litany of complaints about the mother.  He perceives her to lack any interest in the child’s sporting activities and to actively resist his involvement at the school.  He complained about what the mother put in the child’s lunch box.

5. In January 2018 the father attended the hospital where the mother and child were.  The mother indicated to staff that she did not want to be in the same room as the father.  He did not respect her wishes but pressed the staff to let him be with the child.  He stayed with the child for hours and the mother would pop into see the child when the father would leave to get something for him.  The father goes on his affidavit to criticise the mother’s motivation in taking the child to the hospital.  He seems to hold the belief that she took the child there to somehow deny him the chance to look after the child when he was a bit poorly.  The father disputes there was anything wrong with the child.  He could not leave this incident without telling the court that later that day the mother attended changeover with the maternal grandmother “…as it appeared to me Sal could not do it herself.”  These sort of criticisms are a continuation of the father’s presentation to the trial judge that led to the orders being made back in 2016.  The father continues to be critical of the mother.  The parties continue to have conflict.   In other words there has been no change in circumstances.

6. Whilst I accept the father feels aggrieved about the way he believes the mother is denying him a chance to be more involved with the child, when I take into account the 2016 reasons for judgment I am not satisfied the father’s conduct and attitude towards the mother has changed.  He continues to be overly critical of her.  He has not complied with the orders in relation to only sending one email about the child to the mother each week.[22]  Conflict continues. 

   [22] Order (32)

7. I accept the father’s complaint that the mother did not agree to engage in a review of the orders as anticipated by the notation.  However this refusal needs to be seen in the context of the father’s ongoing denigration of the mother in his emails to her.  Annexure SG4 of the mother’s affidavit filed 17 August 2020 clearly show the father to be belligerent in his communication with the mother.  He clearly disrespects the mother and does not hesitate to criticise and belittle her in his emails.  It is no wonder the mother would not attend mediation.  I am surprised she has not brought proceedings for a family violence protection order.

8. I acknowledge the trial judge said in her reasons for judgment:

   [29] ...  There is also a notation to the Minute that I do not need to go into which essentially provides an opportunity for the matter to come back to the Court without any Rice & Asplund problems.

9. With respect to her Honour, I do not read the agreed notation in the same way.  It was clear the parties had at that time agreed to review the orders once the child started his preparatory year at school.  There was no concession in relation to Rice & Asplund.  In any event, it is open to the court at the time of hearing the application to re-open the litigation to determine whether the test in Rice & Asplund should be applied.

10. In determining whether to re-open litigation the court should look at whether there is likely to be any change in the orders.  On the evidence currently before the court I am doubtful that any change would come about unless there is some change in the father’s attitude to the mother.  I don’t want the father to misunderstand me.  I accept he wants to play a greater role in his son’s life and he believes the mother is holding him back.  He is clearly frustrated.  However, these parents are never going to be able to co-parent and the child will not be able to spend more time with the father unless the father addresses his frustration and approaches the mother in a less critical manner.  He is compounding the problem.  In that sense nothing has changed.  Re-opening the litigation will not bring about changes unless the father deals with this issue.

11. In her reasons for judgment, the trial judge found that the probability of the father making significant changes to his views about the mother is slight.[23] The trial judge gave significant weight to the reports of Family Consultant B and Dr A when coming to her decision.  In the family report, Family Consultant B opined:

    …this family consultant could not support Mr Castro spending extensive future time with X on a regular basis. Such has the potential to negatively impact upon X if he comes to experience diametrically opposed parenting styles, unyielding conflict between his parents………………..Dr A stated that Mr Castro has some vulnerability in respect of parenting due to a very high desire for a relationship with X, which is demonstrated in the difficulties he has responding to X's cues and signals….. 

    [23] Para [53]

12. Dr A opined:

    [the father] will need to demonstrate appropriate boundaries and respect over time to facilitate their developing a cooperative parenting relationship that is conducive to their meeting X's needs. 

13. Her Honour, Dr A and the family report writer were, with respect, accurate in their predictions.  The father does have a high desire for a relationship with the child.  I make no criticism of that as such.  However, this desire continues to cloud his approach to co-parenting with the mother.  The parties remain in high and unyielding conflict.  Re-opening the litigation will only add to that.

14. The father gave evidence of the child wishing to spend more time with him.  Whilst I don’t have any independent evidence to corroborate that, I would not be surprised.  Although the child is much older than he was when the 2016 orders were made, he is still young and his views would not be determinative of any parenting decision.  There can be no doubt the child is aware of the conflict between the parents, given the father’s evidence of events at the swimming lessons and hospital.  To put the parents and child through further litigation would not be in his best interests.  It would in fact add to the conflict.

15. The parties’ other circumstances have not changed.  The mother continues to work in the same employment, she has not re-partnered and lives at the same address.  The father likewise has not re-partnered, he remains unemployed and lives in the same area he did in 2016.

16. When I take all those mattes into account I am not satisfied that there has been a significant change of circumstances warranting a re-opening of the litigation.  I would dismiss the father’s application.

Costs

1. The mother had sought an order that the father pay her costs if his application was dismissed, or in the event of the litigation being re-opened, an order for security for costs.  The father’s submissions dealt only with the security for costs argument.  I propose to allow his solicitors an opportunity to respond to the mother’s submissions in relation to costs.  The father is to file written submissions addressing the costs issue within 21 days.  The mother has a further 14 days to file submissions in reply.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Lapthorn

Associate:

Date: 26 May 2021