Catterall and Catterall
[2013] FMCAfam 336
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CATTERALL & CATTERALL | [2013] FMCAfam 336 |
| FAMILY LAW – Parenting – application to dismiss parenting application – relying upon principles set out in Rice v Asplund. |
| Family Law Act 1975 (Cth) s.60CC |
| Rice & Asplund (1979) FLC 90-725 Marsden & Winch (2009) FamCAFC 152 SPS and PLS (2008) FLC 93-363 Goode & Goode (2006) FLC 93-286 King v Finneran (2001) FLC 93-079 DL & W (2012) FLC 93-496 Langmeil & Grange [2013] FamCA FC 31 Langham & Langham (1981) 6 FamLR 862 King v Finneran (2001) FLC 93-079 Reid & Lynch [2010] FamCA FC 184 |
| Applicant: | MS CATTERALL |
| Respondent: | MR CATTERALL |
| File Number: | MLC 3374 of 2011 |
| Judgment of: | O'Sullivan FM |
| Hearing date: | 20 March 2013 |
| Date of Last Submission: | 20 March 2013 |
| Delivered at: | Dandenong |
| Delivered on: | 10 April 2013 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Counsel for the Respondent: | Mr Hutchins |
| Solicitors for the Respondent: | Nevin Lenne & Gross |
ORDERS
The interim application of the father be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Catterall & Catterall is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DANDENONG |
MLC 3374 of 2011
| MS CATTERALL |
Applicant
And
| MR CATTERALL |
Respondent
REASONS FOR JUDGMENT
Ms Catterall (“the mother”) and Mr Catterall (“the father”) are the parents of X born (omitted) 2009 (“the child”).
The mother is 37 years of age and employed by (omitted). The father is 42 years of age and was employed as an (occupation omitted). The father is currently in receipt of Centrelink benefits and says he is studying (omitted). The parties were married on (omitted) 2009, separated on 13 March 2011. A divorce order was made on 14 February 2013.
After the father commenced proceedings in the Family Court of Australia in 2011 the parties made application for consent parenting orders in the Family Court of Australia. A Registrar of the Family Court of Australia made final parenting orders by consent on 12 October 2011 (“the Orders”) which provided that:
“1.The Consent Orders made 9 May 2011 be hereby discharged.
2.The parties have equal shared parental responsibility for X born (omitted) 2009 (aged 1 year) (“the child”).
3.That until the child commences primary school the child:
(a)live with the Father in a two week cycle as follows:
(i) from 9.30 am Sunday to the commencement of childcare/kindergarten/school or 8.30 am on Monday;
(ii) from the conclusion of childcare/ kindergarten/school or 8.30 am on Friday;
(iii) from 9.30 am on Saturday until the commencement of childcare/kindergarten/school or 8.30 am on Monday;
(iv) from the conclusion of childcare/ kindergarten/school or 6.00 pm on Wednesday until the commencement of childcare/ kindergarten/school on Friday.
(b) live with the Mother at all other times.
4.Notwithstanding paragraph 3 herein each party be at liberty to take the child on three one week holidays per year PROVIDED THAT:
(a)the holiday does not prevent either party’s contact with the child during the Christmas period pursuant to paragraphs 6(a) to 6(d) herein;
(b)the holidaying parent provides the non-holidaying parent with 45 days written notice of their intention to take the holiday with the child, the proposed travel dates, itinerary and contact phone numbers; and
(c)the contact nights lost by the non-holidaying parent are “made up” during the same calendar day at times to be elected by the non-holidaying parent.
5.That as and from the child’s commencement at primary school:
(a)The child live equally between the parties at times to be agreed between the parties three months prior to the child commencing primary school and in default of agreement, on a week about basis with each parent with handover to occur at the conclusion of school (or 3.30 pm if a non-school day) each Friday.
(b)The child shall spend equal time with each the Mother and the Father during all school term and long summer school holidays at times to be agreed between the parties and in default of agreement:
(i) The child live with the Father for the first half of the school term and long summer school holidays in all even numbered years;
(ii) The child live with the Father for second half of the school term and long summer school holidays in all odd numbered years.
(iii) The child live with the Mother for the first half of the school term and long summer school holidays in all even numbered years; and
(iv) The child live with the Mother for the second half of the school term and long summer school holidays in all even numbered years.
6.Notwithstanding paragraphs 3, 4 and 5 herein:
(a)In the 2011 year and each alternate year thereafter the child spend time with the Father from 5.00 pm, 24 December to 2.00 pm, 25 December;
(b)In the 2012 year and each alternate year thereafter the child spend time with the Father from 2.00 pm, 25 December to 5.00 pm, 26 December;
(c)In the 2011 year and each alternate year thereafter the child live with the Mother from 2.00 pm, 25 December to 5.00 pm, 26 December;
(d)In the 2012 year and each alternate year thereafter the child live with the Mother from 5.00 pm, 24 December to 2.00 pm, 25 December;
(e)If Mother’s Day falls on a weekend that the child is not otherwise living with the Mother, then the child be returned to the Mother from 5.00 pm on the day before Mother’s Day until 5.00 pm on Mother’s Day;
(f)If Father’s Day falls on a weekend when the child is not otherwise spending time with the Father, the child be returned to the Father from 5.00 pm on the day before Father’s Day until 5.00 pm on Father’s Day.
(g)If the child or the Mother’s birthday falls:
(i) on a weekend, public holiday or school holiday when the child is not living with the Mother, then the child is to be returned to the Mother for a minimum period of five (5) hours on the child or the Mother’s birthday at times to be agreed between the parties or failing agreement between 9.30 am and 2.30 pm;
(ii) on school day when the child is not living with the Mother then the child is to be returned to the Mother for a minimum period of two (3) hours at times on the child or the Mother’s birthday at times to be agreed between the parties or failing agreement from the 3.30 pm until to 6.30 pm;
(h) if the child or the Father’s birthday falls:
(i) on weekend, public holiday or school holiday when the child is not living with the Father, then the child is to be returned to the Father for a period of five (5) hours on the child or the Father’s birthday at times to be agreed between the parties, or failing agreement between 9.30 and 2.30 pm.
(ii) on school day when the child is not living with the Father, then the child is to be returned to the Father for a minimum period of two (3) hours at times on the child or the Father’s birthday at times to be agreed between the parties or failing agreement from the 3.30 pm until to 6.30 pm.
(i)If the Mother is unable to care for the child on a public holiday due to work commitments, the Father agrees to care for the child during these times provided he is given reasonable notice by the Mother that he is required to do so.
7.That the parties give each other 24 hours notice of any change to the contact arrangements.
8.That in the event that one party is unable to care for the child for a period of 24 hours or more they will inform the other and give that party the first option for caring for the child. If the other party is unable to care for the child the child shall be cared for by an immediate maternal or paternal family member only unless the consent of the other parent is obtained.
9.On all changeovers which do not take place at the child’s childcare centre, kindergarten or school, the Mother will drop off and collect the child at the Father’s residence at the beginning and conclusion of contact.
10.Both parties are restrained by themselves, their servants or their agents from:
(a)denigrating the other party to or in the presence or hearing of the child; and
(b)enrolling or committing the child to any activity during the other party’s contact time without first obtaining the other party’s consent to such an activity.
11.Both parties are restrained from consuming alcohol to excess 24 hours prior to or during any period the child is in their care.
12.The Father is to follow all prescribed medical treatment at all time and is not to consume alcohol in combination with medication if so advised by his treating doctor.
13.The parties each be at liberty to communicate with the child by telephone at all reasonable times when the child is in the care of the other parent and at such times as the child may request.
14.The parties shall communicate with each other via phone, email or text message to discuss child related matters.
15.That the parties shall forthwith commence a communication book to travel with the child at contact changeovers in which each parent will record relevant issues regarding the child’s activities, commitments and health.
16.Each party shall immediately inform the other of any serious illness or injury sustained by the child whilst in their care, and further provide particulars of any treatment required or received by the child together with the name and address of the treatment provider and/or location at which the child is a patient.
17.Both parties be at liberty to approach the school or education institutions attended or to be attended by the child to obtain copies of school reports, photographs, newsletters notices and the like, and further, each party shall be at liberty to attend parent/teacher nights, school concerts, prize and special nights, sporting events and like functions.
18.Both parties agree that the child’s childcare centre, kindergarten and school shall be no more than a distance of 25 kilometres from either of the parties residence.
19.That the Mother, her servants and/or agents be restrained from removing or attempting to remove the child from the Commonwealth of Australia without an order of the Court.
20.The Court request that the Commissioner of the Federal Police take all necessary steps to immediately place the child’s name on the Watch List at all points of international departure from Australia for the purpose of preventing the removal of the child from Australia in breach of these orders.
21.The Marshall of the Family Court of Australia at Melbourne and all officers of the Australian Federal Police and the (omitted)Police Forces and Services of the various States and Territories of Australia are required and empowered to give effect to these orders and to take all necessary steps to restrain MS CATTERALL from removing the said child from the Commonwealth of Australia.
22.The Marshall of the Family Court of Australia at Melbourne and all officers of the Australian Federal Police and the (omitted)Police Forces and Services of the various States and Territories of Australia are required and empowered to give effect to these orders and to take all necessary steps to restrain MR CATTERALL from removing the said child from the Commonwealth of Australia.
23.Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
24.For the avoidance of doubt, to the extent that these Orders conflict with Intervention Orders, these Orders shall prevail.”
Current proceedings
On 5 November 2012 the mother filed an initiating application seeking to discharge the Orders made on 12 October 2011. That application was also accompanied by an affidavit sworn on 2 November 2012 and a Form 4, Notice of Risk.
The matter came before the Court on 10 December 2012. The father was granted leave in Court that day to file his response and affidavit sworn on 6 December 2012. The mother’s application seeks to discharge or change the Orders for the child made in 2011. That application is opposed by the father. At the first Court date the father made clear he was seeking orders for the dismissal of the mother’s application based upon the principals set out in Rice & Asplund (1979) FLC 90-725 (“Rice & Asplund”)
On 10 December 2012 the Court made the following orders:
“THE COURT ORDERS THAT:
1.The Applicant file and serve any further material upon which she seeks to rely upon by 4 March 2013.
2.The Respondent file and serve any further material upon which he seeks to rely upon by not later than 11 March 2013.
3.The matter be adjourned for hearing on the respondent’s argument that the application filed 5 November 2012 should be dismissed in reliance on the Rule in Rice & Asplund on 20 March 2013 at the Federal Magistrates Court of Australia at Dandenong commencing at 10:00 am.”
Hearing on 20 March 2013
The proceedings returned to Court on 20 March 2013. The mother appeared in person and the father was represented by Mr Hutchins of Counsel.
In accordance with the orders of 10 December 2012 the mother filed the following affidavits in support:
a)the mother’s affidavit sworn on 28 February 2013 and filed on 28 February 2013; and
b)an affidavit on behalf of her partner Mr J also filed on 28 February 2013.
The father filed another affidavit sworn on 12 March 2013.
On 20 March 2013 the Court heard the parties oral submissions and at the end of the interim hearing the Court reserved its decision.
Application
Against the background of the Orders the Court notes that the mother’s application[1] sought the following orders:
[1] Initiating application filed on 5 November 2012
“Interim orders sought
1.That the husband and the wife have equal shared parental responsibility of the child X born (omitted) 2009 (aged almost 3 years).
2.That the said child live with the wife.
3.That the child spend time with and communicate with the husband as follows:
(a)on each alternate weekend from the conclusion of child care or school on Friday to the commencement of childcare or school on Monday;
(b)While child is attending pre-prep3, pre-prep4 and then on to school, upon the husband having leave from his employment and being in substantial attendance then for one half of each of the school term and long summer holidays;
(c)On the child’s birthday and the husband’s birthday if it is a school day from 4pm until 6pm and if it is a weekend day, then from 10am until 2pm;
(d)For Christmas 2012 and each alternate year thereafter from 5pm on Christmas Day until 5pm on Boxing Day;
(e)For Christmas 2013 and each alternate year thereafter from 5pm Christmas Eve until 5pm Christmas Eve;
(f)On Father’s Day if it is not a time when the children are in the care of the father, then from 5pm on the Saturday prior to Father’s Day until delivery to day-care/school on Monday;
(g)by telephone on a reasonable basis;
(h)such further or other times as may be agreed between the parties in writing.
That the husband’s time with the children be suspended as follows:
(a)From 5pm on the Saturday prior to Mother’s Day;
(b)On the child’s birthday and the Mother’s birthday during the times the child is with the father from 4pm until 6pm on a weekday and from 10am until 2pm if it is a weekend day;
(c)From 5pm on Christmas Eve until 5pm on Christmas Day in 2012 and each alternate year thereafter;
(d)from 5pm on Christmas Day until 5pm on Boxing Day in 2013 and each alternate year thereafter;
(e)such other or further orders as this Honourable Court deems appropriate.
4.That a family report be prepared to assist the court in determining the best interests of the child.
5.That the father attends and completes a Parenting After Separation Course before the final hearing.
Final orders sought
1.That the husband and the wife have equal shared parental responsibility of the child X born (omitted) 2009 (aged almost 3 years).
2.That the said child live with the wife.
3.That the child spend time with and communicate with the husband as follows:
(a)on each alternate weekend from the conclusion of child care or school on Friday to the commencement of childcare or school on Monday;
(b)While child is attending pre-prep3, pre-prep4 and then on to school, upon the husband having leave from his employment and being in substantial attendance then for one half of each of the school term and long summer holidays;
(c)On the child’s birthday and the husband’s birthday if it is a school day from 4pm until 6pm and if it is a weekend day, then from 10am until 2pm;
(d)For Christmas 2012 and each alternate year thereafter from 5pm on Christmas Day until 5pm on Boxing Day;
(e)For Christmas 2013 and each alternate year thereafter from 5pm Christmas Eve until 5pm Christmas Eve;
(f)On Father’s Day if it is not a time when the children are in the care of the father, then from 5pm on the Saturday prior to Father’s Day until delivery to day-care/school on Monday;
(g)by telephone on a reasonable basis;
(h)such further or other times as may be agreed between the parties in writing.
That the husband’s time with the children be suspended as follows:
(a)From 5pm on the Saturday prior to Mother’s Day;
(b)On the child’s birthday and the Mother’s birthday during the times the child is with the father from 4pm until 6pm on a weekday and from 10am until 2pm if it is a weekend day;
(c)From 5pm on Christmas Eve until 5pm on Christmas Day in 2012 and each alternate year thereafter;
(d)from 5pm on Christmas Day until 5pm on Boxing Day in 2013 and each alternate year thereafter;
(e)such other or further orders as this Honourable Court deems appropriate.”
At the hearing on 20 March 2013 the mother relied on her application and affidavit material referred to earlier.
Response
Against the background of the orders and the mother’s subsequent application the father filed a response on 10 December 2012 seeking the following orders:
“1.That the Orders made by the Family Court of Australia at Melbourne on 12 October 2011 continue in full force and effect.
2.That the Application of the wife filed on 5 November 2012 be dismissed.
3.That the Wife pay the Husband’s costs of and incidental to these proceedings.
4.Such further or other Orders as deemed necessary by the Honourable Court.”
As noted earlier the father opposed the orders sought by the mother and wanted the application dismissed relying on the principles in Rice & Asplund (supra). The father relied on his affidavits sworn 16 December 2012, affidavit filed 12 March 2013 and Counsel’s submissions made on 20 March 2013.
The mother referred to the family report dated 22 August 2011 prepared on behalf of the parties before the Orders made. To the extent that the report can be relied on it would only be to obtain some understanding of the background against which the Orders were made.
Family Report
The report observed:
“Current living Situations
Ms Catterall is a 37 year old woman. She lives in (omitted) in the former family home. She has been a (occupation omitted) with (omitted) for 7 years and recommenced working in March 2011, just before the parties’ separation. She works part time three days per week as a (omitted)) at a (omitted) in (omitted). She explained that her work involves (omitted) and has just commenced working in a (omitted) and (omitted).
Mr Catterall is a 41 year old man, who is employed as a (occupation omitted) in the (omitted) industry. He now lives in (omitted) on his own but spends his time in (omitted) with his mother when X stays overnight.
X attends ‘Kidstime’ childcare in (omitted)(omitted) each Monday, Wednesday and Friday on the days her mother is working.
Both parents said that they had not repartnered.
Background
The parties met through an internet dating site. They had a short relationship before moving in to live together from (omitted) 2008. They married (omitted) 2009 and separated 13 March 2011.
…
The report recommended:
“Summary and Recommendations
The parents in this dispute have had a relatively brief relationship and they became parents very soon after it began.
Ms Catterall expresses worries that Mr Catterall has a mental illness and shows poor judgement and decision-making. She believes that there are some risks to X in unsupervised time with her father and alleges that Mr Catterall is unpredictable in his moods and behaviour and drinks heavily which further erodes his capacity to properly care for their daughter. She describes Mr Catterall as aggressive and intimates that he has a long undisclosed history of aggression and violence against others.
In my assessment, Ms Catterall seemed to present as reasonable and not inclined to exaggeration. Sometimes, her comments suggested that she may not be taking into account the heightened emotions and conflict that may be present around parental separation and attributing this to pathological causes in Mr Catterall. Ms Catterall also seems to have been through some very strange and frightening experiences with Mr Catterall, so it not surprising that her fears are heightened. Psychometric testing indicated that she may be sensitised to conflict and have little insight into how her own behaviour contributes to it and exacerbates it.
In my assessment of Mr Catterall, his presentation was free of symptoms of mental health problems and psychometric testing did not indicate the presence of any psychopathology and even more specifically mood problems. I had some concerns about Mr Catterall’s reports that he now has few mood fluctuations on medication but he also identified some periods when he reported mood changes. I noted too that Ms Catterall’s report of their honeymoon period also resembled Mr Catterall’s admitted behaviour when feeling an elevated mood. Mr Catterall’s responses around his alcohol use also suggested some problems.
However, on the information available to me there was little information to suggest that Mr Catterall’s psychiatric diagnosis presents as risk factor in his care of X. Mr Catterall’s treating psychiatrist reports that he is compliant with mediation, cooperative to therapy, that she has never seen him with an elevated mood, and that his drinking appeared to be associated with a time of significant relationship problems.
In my assessment of Mr Catterall with X the interactions between them and X’s presentation suggested that X has a close, loving and secure relationship with her father. It might be expected that if Mr Catterall’s mood was fluctuating this would create some problems for X and it is not uncommon for children in these circumstances to show wariness or some problems with attachment because they find the parent’s behaviour unpredictable or aversive. This was not the case.
To err on the side of caution and because of X’s age and stage of development and the particular risk for young children in the care of someone who may be psychiatrically unwell and making poor decisions, I would recommend that Mr Catterall undergo an independent psychiatric assessment. To provide a balanced approach, Ms Catterall should also attend.
A cautious approach would also suggest that it is better to continue with the present arrangement dependent on the outcome of such an assessment and with X’s care with her father to have some continued monitoring by her paternal grandmother.
I am also in agreement with Mr Catterall that the present schedule of time with him would likely suit X‘s stage of development. Her happy, contented secure outlook was also a strong argument to suggest that the present arrangement suits her needs for now.
Ms Catterall claims that she is fearful of Mr Catterall and that she is a victim of family violence. It is my assessment that issues of aggression between the parties, and they both accuse the other of being the instigator, might be attributable to their relationship problems and the stress arising from it. However, I consider that that X’s transitions between her parents should be managed carefully to ensure Ms Catterall feels safe and supported and the risk that X’s exposure to conflict and/ or violence is reduced. Having changeovers occur from X’s childcare centre may be one way to achieve this and also allow X a psychological and emotional buffer between her time with each parent.
It may be that in testing the evidence before the court new information emerges about the issues in this dispute. My opinions and conclusions may change accordingly.”
Submissions
The mother understood the burden fell to her to demonstrate changed circumstances. The mother’s submissions attempted, by reference to her material, to identify the “significant changes” since the Orders were made.
The mother who was unrepresented when the Orders were made claimed she was under strain at that time. The mother referred the Court to the decision in Langham & Langham (1981) 6 FamLR 862.
The mother referred to concerns she maintained were held for the child’s development by inter alia the maternal and child health care nurse and (omitted) Hospital. The mother submitted that even allowing for delays due to the child’s hearing problems, the child wasn’t coping with the current arrangements provided for in the Orders.
The mother submitted that she had been unable to discuss issues such as whether there should be a new report, schooling and moving the child care arrangements with the father.
The mother submitted the child had no security, no stability under the Orders and was not coping. The mother argued there should be a new family report to identify whether given the issues she referred to, the Orders should be changed.
Counsel for the father submitted that in “short compass the [mother’s] application was ill fated” and didn’t “indicate any significant change.” Counsel for the father submitted that at best the mother’s case was that the mother thinks the Orders are too strict and unworkable.
Counsel for the father urged the Court not to entertain the mother’s application which it was submitted did not demonstrate significant change as it was submitted there was nothing out of the ordinary course of events.
Counsel for the father contended that the mother had for the last 9 months been “agitating for all manner of changes” and submitted the child shouldn’t be affected by the mother trying to make things more convenient for herself.
Counsel for the father submitted that whilst the Orders had operated since they were made, albeit “not without difficulty,” the mother’s position was in reality they were inconvenient for her.
In submissions before the Court, Counsel for the father whilst acknowledging there had been developmental issues and separation anxiety for the child, submitted they had been dealt with.
In so far as the mother relied on the assessment of the child at inter alia (omitted) Hospital and childcare as warranting the Orders being revisited, Counsel for the father submitted Annexure BC-05 to the mother’s affidavit did not make out that claim.
Noting that the mother had the burden to establish changed circumstances, Counsel for the father submitted it was telling given the grounds relied on by the mother that there were no material from the child’s paediatrician.
Relevant principles
Each of the parties submissions addressed the authorities that have considered the principles in Rice & Asplund (supra). In relation to those principles in Marsden & Winch (2009) FamCAFC 152 the Full Court of the Family Court said:
“41.Warnick J in SPS & PLS [2008] FamCA FC 16; (2008) FLC 93-363 said at [1]:
The “rule” in In the Marriage of Rice and Asplund...that, where there has already been a final order in respect of parenting issues, before the court embarks on a rehearing of those issues, the applicant must establish a significant change of circumstance – is certainly useful, if not essential. But it is not the primary principle in applications for parenting orders. Nor is its utility or weight uniform across cases in which it might be applied. In particular, those attributes vary, according to whether the rule is applied at the outset of or at the end of a hearing.
42.The application of the rule was again described by Warnick J in [45] – [49] inclusive. Before turning to what Warnick J said of it, it is useful to recall that Rice & Asplund involved an appeal from custody orders which reversed an order made nine months beforehand. In her reasons for judgment (at 78,905), Evatt CJ said of the position of a court confronted with an application to change an earlier order that:
It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that, to quote Barber J., there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material
43.Evatt CJ went on to say that the threshold question was not necessarily one for preliminary determination.
44.As Warnick J discussed, the purpose of the “rule” is to discourage “endless litigation” In addition, as Nygh J said in McEnearney (1980) FLC 90-866 at 75,499:
...the principle that there be an end to litigation has equal force in custodial disputes and in some respects may have even greater force in custodial disputes. The last thing, of course, that this court would wish to see would be a perennial football match between parents who because the strict principles of res judicata are not applicable might seek to canvass again and again the question of custody of a child with the enormous psychological harm which they would be inflicting not only upon each other but especially upon the child.
45. Warnick J opined in SPS & PLS (supra) that:
58.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.
46. Warnick J had earlier said at [48]:
In my view, reflection on the rule shows that:
(i)What the application of the rule can achieve if dealt with as a preliminary matter is different from what it can achieve if dealt with at the end of a full hearing.
(ii)In its original formulation, the rule is directed to application as a preliminary matter. Yet, contemporaneously with that formulation the court in Rice and Asplund determined that the rule could equally be applied at the end of a full custody hearing. The consequences of that determination have received little attention.
(iii)At whatever stage of a hearing the rule is applied, its application should remain merely a manifestation of the "best interests principle".
(iv)Discussion in terms that the rule may be applied as a "preliminary matter" or the primary application be first heard "on the merits" may be unhelpful, particularly because of the implication that, if the rule is applied as a preliminary matter, the parenting application is not then dealt with "on the merits".
(v)The application of the rule is closely connected with the nature of, and degree of, change sought to the earlier order.
(vi)"Shorthand" statements of the rule may contribute to its misapplication.
(vii)Any application of the rule must now measure the evidence against the principles set out in Part VII of the Act, 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 to be made in that regard.
47.We agree with those observations. Warnick J went on to consider each of these observations, recognising (at [74]) that once a court refrains from applying the rule as a preliminary matter and embarks upon a hearing the rule should not necessarily be cast aside although its force might be diminished. Importantly, Warnick J made the point that the implication should be avoided that if the rule is applied as a preliminary matter the parenting application is not dealt with on the merits. In particular, he noted that the “paramountcy principle” still applies to the decision to dismiss an application to vary (s 60CA of the Family Law Act 1975 (Cth); see also Newling & Mole [1987] FamCA 21; (1987) FLC 91-856; F & N (1987) FLC 91-813; McEnearny (supra)). We agree with the conclusion reached by Warnick J (at [81]) that:
...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.
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.
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.”
There have been more recent Full Court decisions that have considered the rule in Rice & Asplund (supra). In Langmeil & Grange [2013] FamCA FC 31 the Full Court Said:
“43.The rule in Rice & Asplund was recently considered in
DL & W[2012] FamCAFC 5; (2012) FLC 93-496 per May, Thackray & Strickland JJ. DL & W concerned Part VII as enacted immediately prior to the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011. The amendments do not affect the manner in which the rule operates. It follows that their Honours remarks in DL & W also apply to proceedings to which the current Part VII applies. Their Honours in DL & W correctly recorded that the “rule” has its genesis in remarks by Evatt CJ in Rice & Asplund at [78,905-06]:The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that ... there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material.
44. Evatt CJ continued:
These are not necessarily matters for a preliminary submission, but they are matters that the judge should consider in his reasons for decision. It is a question of finding that there are circumstances which require the court to consider afresh how the welfare of the child should best be served. These principles apply whether the original order is made by consent or after a contested hearing. The way they apply and the factors which will justify the court in reviewing a custody order will vary from case to case.
45. In DL v W, their Honours pointed out that:
The debilitating effect of ongoing litigation on children and parents alike was emphasised by Strauss J in this passage in Freeman and Freeman [1986] FamCA 23; (1987) FLC 91-857 at 76,470–71:
“Continuing and seemingly endless and inconclusive litigation is usually emotionally damaging to the litigants and is likely to affect the children adversely. It impairs the ability of the custodian, in this case the wife, to deal with the present and plan for the future of the family. It is financially burdensome. ... The welfare of the children is, in this case, as in any others concerning custodial arrangements, the paramount consideration. But once the court, either after a full hearing or by a consent order, has settled the question of custody, it is usually in the interests of the children that the order made by the court is treated as determining the dispute and be given the necessary support. Stability in the lives of children and also in the lives of adults is an essential prerequisite to their well-being. ...”
In Langmeil & Grange (supra) the Full Court noted the remarks made in DL & W (2012) FLC 93-496 also apply to proceedings to which the current Part VII of the Act applies. In DL & W (supra) the Full Court said:
“Relevant law
60.As Evatt CJ said in Rice and Asplund, a court “should not lightly entertain” an application to reverse earlier parenting orders. The stated rationale of the then Chief Justice was the avoidance of the “endless litigation” that might otherwise ensue, since “change is an ever present factor in human affairs”.
61.As we have earlier recorded, Evatt CJ suggested (at 78,905) that a court would only hear an application to vary an earlier order if it were satisfied 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…
62.Evatt CJ acknowledged the infinite variety of circumstances that would warrant application of the principle she had stated, and she also effectively found there was no “right” time for it to be considered. This is apparent from what her Honour said in the following passage (at 78,905-78,906):
These are not necessarily matters for a preliminary submission, but they are matters that the judge should consider in his reasons for decision. It is a question of finding that there are circumstances which require the court to consider afresh how the welfare of the child should best be served. These principles apply whether the original order is made by consent or after a contested hearing. The way they apply and the factors which will justify the court in reviewing a custody order will vary from case to case.
63.Evatt CJ’s views were endorsed by the other members of the bench in Rice and Asplund and have been routinely followed ever since, including after the 2006 amendments to the Act. For recent discussions of the “rule” by the Full Court see Reid & Lynch (2010) FLC 93-448, B & J [2009] FamCAFC 103, Marsden v Winch (2009) 42 Fam LR 1, Caracini & Paglietta [2009] FamCAFC 188 and Gotch & Gotch [2009] FamCAFC 3.
64.The policy considerations underpinning the “rule” were explained in McEnearney and McEnearney (1980) FLC 90-866, where Nygh J said at 75,499:
…the principle that there be an end to litigation has equal force in custodial disputes and in some respects may have even greater force in custodial disputes. The last thing, of course, that this court would wish to see would be a perennial football match between parents who because the strict principles of res judicata are not applicable might seek to canvass again and again the question of custody of a child with the enormous psychological harm which they would be inflicting not only upon each other but especially upon the child.
65.The debilitating effect of ongoing litigation on children and parents alike was emphasised by Strauss J in this passage in Freeman and Freeman (1987) FLC 91-857 at 76,470-71:
Continuing and seemingly endless and inconclusive litigation is usually emotionally damaging to the litigants and is likely to affect the children adversely. It impairs the ability of the custodian, in this case the wife, to deal with the present and plan for the future of the family. It is financially burdensome. …The welfare of the children is, in this case, as in any others concerning custodial arrangements, the paramount consideration. But once the court, either after a full hearing or by a consent order, has settled the question of custody, it is usually in the interests of the children that the order made by the court is treated as determining the dispute and be given the necessary support. Stability in the lives of children and also in the lives of adults is an essential prerequisite to their well-being. …
66.The likely adverse impact of litigation on children has also been recognised in the High Court. In CDJ v VAJ (1998) 197 CLR 172 at 204 [118] McHugh, Gummow and Callinan JJ (albeit in a different context) said:
… So too the public and private interest in the finality of litigation must be given some weight even in cases of this kind. The important private interests of children are unlikely, save in special circumstances, to be served by frequent displacements of them and the uncertainty of prolonged and repetitive proceedings.
67.The legislation itself now expressly directs judicial officers to have regard to the potential impact of proceedings on the welfare of children. As the Full Court pointed out in Miller & Harrington (2008) FLC 93-383, the provisions of 69ZN of the Act, which prescribes “principles for conducting child-related proceedings”, apply to a hearing in which Rice and Asplund is invoked. Subsection 69ZN(3) provides (our emphasis):
The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.
68.There are, of course, cases where it is necessary, in the interests of the child, for a court to revisit “final orders”, whether made by consent or following a defended hearing. As Evatt CJ said in Zabaneh and Zabaneh (1986) FLC 91-766 at 75,587 (Fogarty and Renaud JJ agreeing):
The welfare of children may ultimately demand that issues concerning access, custody and so forth, and so on, be reconsidered, but only when there is some evidence of an underlying change in the circumstances, whether that be in the attitudes of the parties, or the needs or circumstances of the children. The fact that time has elapsed or a considerable time, may be relevant, but it is not the only factor to take into account.
69.As the Federal Magistrate noted, the Rice and Asplund authorities were reviewed in SPS and PLS, where Warnick J recognised that the purposes that can be served by the “rule” differ depending upon the stage of the proceedings at which it is sought to be applied. For example, in the event it is addressed as a preliminary matter it is clearly more effective in discouraging “endless litigation” than if it is applied at the conclusion of the hearing.
70.Warnick J observed (at 87,451) that “at whatever stage of a hearing the rule is applied, its application should remain merely a manifestation of the ‘best interests principle’”. His Honour also recognised that “the application of the rule is closely connected with the nature of, and degree of, change sought to the earlier order”. We respectfully adopt those observations, with the latter being of particular importance in the determination of this appeal.
71.Warnick J’s views were also endorsed by the Full Court in Marsden v Winch (supra at 19 [47]), where Bryant CJ, Finn and Cronin JJ went on to say (footnotes omitted):
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.
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.
72. Their Honours continued:
55. Given that the application of the rule should always remain a manifestation of the best interests principle, we do not think that that principle can be given its full weight by restricting the application of the rule in Rice to two choices, either application of the rule by taking the applicant’s case at its highest, or a full hearing.
56. In our view, depending upon the facts of each case, a broader range of processes should always be considered. This is because the decision is one which must be made in the best interests of the child but may also be because of the need to provide procedural fairness in the manner in which the court determines how the rule will be applied. …
73.The Full Court then described a two step process to be followed when the Rice and Asplund “rule” is invoked. Their Honours said:
58. …there is a requirement:
(1)for a prima facie case of changed circumstances to have been established; and
(2) for a consideration as to whether that case is a sufficient change of circumstances to justify embarking on a hearing.”
In Langmeil & Grange (supra) the Full Court said:
“In DL v W and Marsden v Winch[2009] FamCAFC 152; (2009) 42 Fam LR 1, per Bryant CJ, Finn and Cronin JJ, their Honours endorsed, as do we, Warnick J’s approach to Rice & Asplund referred to in SPS & PLS[2008] FamCAFC 16; (2008) FLC 93-363. In particular, that the rule is a manifestation of the best interests’ principle and founded on the notion that continuous litigation over a child or children is generally not in their interests. Also, that the application of the rule is connected with the nature and degree of change sought to the earlier order.”
Consideration
This matter proceeded on the papers with the assistance of submissions made on behalf of each of the parties. In considering the mother’s application I have had regard to the material on which the parties rely.
The child was around 18 months old when the parties separated. At the time the Orders were made the child was around 2 years old.
At the time the Orders were made the parties had mutual intervention orders. These have since lapsed. At the time the Orders were made the parties were both working and lived only 5 kilometres apart. The mother now lives in (omitted) and the father in (omitted). The mother’s workplace has moved from (omitted) and the father is no longer working. Since the Orders were made the child has had grommets fitted and seen several medical practitioners for inter alia developmental and other health issues.
Whilst the report made recommendations about psychiatric assessments of both parties there is no evidence this was done. At the time the report was done the father, who is bipolar, was seeing a psychiatrist and he deposes he continues to do so.
In relation to the mother’s argument concerning when the Orders were made, I note what was said in Reid & Lynch [2010] FamCA FC 184 about final orders when no attack has been made on the validity of consent orders or where such orders have not been appealed. This Court is entitled to assume they were properly made and in the best interests of the child.
The Orders required the parties to exercise equal shared parental responsibility. The mother’s case is that the parties are unable to do this on medical issues and child care in such a way that disputes between the parties don’t impact on the child.[2]
[2] see for example paragraphs 28-32 and 33-38 of mother’s affidavit filed 5 November 2012.
The mother points to the distance travelled each day by the child to child care and when added to the diagnosed developmental difficulties leads to the child not coping with the current spend time arrangements in the Orders.
Whilst the father’s criticism of the mother’s application were that the problems identified with the Orders were identified as they didn’t suit the mother, the evidence led on behalf of the mother did give rise to concerns about the suitability of the arrangements in the Orders and whether they were in the child’s best interests.
Counsel for the father acknowledged there had been issues identified in relation to the child since the Orders were made, but submitted these had been dealt with and/or were not “unusual” and a child of this age would inevitably have issues. Whilst there is a beguiling simplicity to this submission I am not sure that is the case.
The submissions made on behalf of the father were to the effect that to allow the Orders to be revisited would reward the mother for what was claimed to be bad behaviour by the mother.
Whether that is the case or not isn’t the issue. There is attached to the mother’s material, documentation that suggests the child is presenting with problems and the father agrees this is the case and those issues weren’t foreseen when the Orders were made.
The mother and father’s material contains a litany of pathetic claims and turgid recitations of confrontations between them before and after the Orders were made where they both seek to cloak themselves with the moral authority of the parent most concerned with the child’s best interests. The disparate accounts they present can only be explained if one of the parties is being untruthful.
The father agrees the child has suffered hearing loss and delays in speech development and that the child in the father’s words has developmental and emotional challenges.
Even allowing for the period of time since the Orders were made, the child has undergone significant change and is at a critical time in her development where she is presenting with problems that weren’t foreseen in the context of a routine provided for in the Orders.
The problems the child is presenting with as noted by the current child care provider or as have been diagnosed weren’t foreseen at the time the Orders were made.
The Orders were made against the background of the report. To the extent that report contained a recommendation/s on whether the time spent arrangements then occurring should continue it could only be seen as provisional. There was certainly no definitive examination or recommendation that the arrangement that now pertains was developmentally appropriate for the child now regardless of the problems that have been identified since.
Since the Orders were made the child had grommets fitted, seen several medical professionals for various issues, been diagnosed with developmental delays, been assessed as suitable for an aide at childcare and continues on the mother’s case to present with coping difficulties.
The problems the child is now presenting with were not identified in the report or in the Orders. The nature of those issues, even those acknowledged by the father, mean that there’s a likelihood that the spend time arrangements need to be revisited and could be varied in a significant way and the requirement to do so outweighs any detriment caused by re-opening the litigation between the mother and the father.
The complexity of the issues it is agreed the child is/and has been presenting with does not make this matter one amendable to being determined on the basis of the Court’s consideration of the parties submissions and on the papers. The issues referred to above weren’t identified at the time of the Orders and when they are taken collectively there is a likelihood the Orders could be varied in a significant way. The detriment of a rehearing to the child doesn’t outweigh the need to consider the child’s best interests again.
Conclusion
Having regard to:
a)the material of the mother taken at its highest;
b)the past circumstances;
c)the Orders;
the Court is satisfied there is a likelihood the Orders could be varied in a significant way and the potential detriment to the child caused by embarking on a rehearing does not outweigh the need to consider doing so.
The father’s interim application should be dismissed. I will hear the parties on appropriate further directions.
I certify that the fifty-four (54) paragraphs are a true copy of the reasons for judgment of O'Sullivan FM
Date: 10 April 2013
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