Clovelly and Clovelly

[2010] FamCA 43

FAMILY COURT OF AUSTRALIA

CLOVELLY & CLOVELLY [2010] FamCA 43

FAMILY LAW – PRACTICE AND PROCEDURE – Leave to Reopen – Leave to file initiating application is in the best interests of the child and the interests of justice generally

Family Law Act 1975 (Cth) s 60CA

Marsden & Winch [2009] FamCAFC 152
Rice & Asplund (1979) FLC 90-725
SPS & PLS (2008) FLC 93-363

APPLICANT: Mr Clovelly

RESPONDENT: Ms Clovelly

FILE NUMBER: CAF 655 of 2005

DATE DELIVERED: 28 January 2010

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATE: 27 November 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Self represented litigant

SOLICITOR FOR THE RESPONDENT: Ms B. Smithies, ACT Legal Aid Office

Orders

IT IS ORDERED:

Child matters

1. That the applicant have leave to lodge an initiating application on or before 4.00 pm on 10 February 2010 in relation to the child matters in dispute between the parties, including the questions of parental responsibility and the time to be spent by the child with each of her parents.

2. That the respondent will file a response to the initiating application within six (6) weeks of it being filed and served by the applicant.

3. That, once the relevant documents in Orders (1) and (2) have been filed, the matter will be listed for the first day of the Less Adversarial Trial.  It is noted that this is likely to be on 29 March 2010, to coincide with the hearing of the matters in dispute concerning the property of the parties. 

IT IS NOTED THAT:

1. The orders about the time arrangements the applicant spends with the child remain until further order.

2. The passport for the child will remain in the possession of the Registry of the Family Court of Australia at Canberra until further order. 

Property matters

1. The parties will attend upon a Registrar of this Court prior to 29 March 2010 for the purposes of a conference to attempt negotiation of a final settlement of the property in dispute.

2. The parties will confer and prepare and then file a joint balance sheet in accordance with the precedent attached as annexure to these Orders and Judgment prior to the conference with the Registrar of the Court.

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

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAF 655 of 2005

MR CLOVELLY

Applicant

And

MS CLOVELLY

Respondent

REASONS FOR JUDGMENT

Introduction  

1. In this matter, Mr Clovelly seeks leave to reopen proceedings with respect to the child, C, born in April 1999.  The proceedings were closed following a finalisation hearing conducted in mid 2007.  Judgment has been pending in this matter since that time.  I regret that partly as a result of this delay, we are now in the parlous situation where an interlocutory judgment is required to determine the way forward.

2. The question of parental responsibility is yet to be determined.  In addition, the father now seeks to alter the present arrangements that are currently in place with respect to the time he spends with the child.  By way of consent orders made by me on 15 June 2007, the child principally lives with her mother but spends alternate weekends with her father from Friday afternoons until Monday mornings, as well as time during the school holidays. 

3. The father now argues that there should be a change to the present arrangements with respect to time spent between himself and the child as the child is much older.  The father submits that the consent orders were made at a time when the child required stable and consistent care from her primary attachment figure her mother, but the circumstances have now changed and should be reviewed to a “more shared care arrangement”. 

4. Given that the orders made by consent on 15 June 2007 have not been appealed, the orders stand as final orders of this Court.  It is necessary, therefore, for the father to apply to the Court, by way of initiating application and in accordance with the principles identified by the Full Court of the Family Court of Australia in Rice & Asplund,[1] to have the final orders altered because of necessity arising out of a fundamental change in the circumstances.

The “rule” (so-called) in Rice & Asplund

[1] Rice & Asplund (1979) FLC 90-725.

1. The “rule” (so-called) in Rice & Asplund relates to the way in which final orders might be changed in relation to parenting arrangements.  The question primarily relates to whether a significant new factor or circumstance calls into question present parenting arrangements.  In Rice & Asplund, Evatt CJ stated:[2]

   [The Court] 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.

   [2] Rice & Asplund (1979) FLC 90-725, 78,905 (per Evatt CJ, Pawley SJ & Fogarty J).

   [2] SPS & PLS (2008) FLC 93-363, [48].

2. Discussing the application of the rule in Rice & Asplund, his Honour, Warnick J stated in SPS & PLS:[3]

   [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.

3. I note that the Full Court of the Family Court of Australia in Marsden & Winch[4] has endorsed the above comments of his Honour, Warnick J in SPS & PLS.

   [4] Marsden & Winch [2009] FamCAFC 152, [47] (per Bryant CJ, Finn and Cronin JJ).

4. The Full Court in Marsden & Winch also identified the importance of weighing up whether to “embark upon another hearing” regarding a change in circumstances against ensuring the best interests of the child.  The Full Court stated:

   [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. 

Discussion

1. In this case, in the context of family law and making a parenting order, I am to give paramount consideration to the best interests of the child.[5] I take into account the difficulty that reopening the matter will have for both parties and the costs (both financial and time) they will each likely incur as a result of the matter being re-litigated by way of the applicant’s initiating application.  Given that the child is now much older and that it is possible that her circumstances have changed since Judgment has been reserved, I consider that the interests of justice, and, in particular, the child’s best interests, outweigh the difficulty of the matter being re-litigated.  It is necessary for a proper and full examination of the issues that need to be determined regarding which parent should have parental responsibility for the important decisions in the child’s life and the time that should be spent with each of them.  This must be undertaken in a relevant and current context. 

   [5] Family Law Act 1975 (Cth) s 60CA refers.

2. I propose that the applicant file and serve an initiating application by 10 February 2010.  The respondent will then file and serve a response within six weeks of that application being filed and served.  The matter will then be listed for a first day hearing of the Less Adversarial Trial.  It is likely that a Family Report will need to be completed by a Family Consultant once the issues arising from the first day of the Less Adversarial Trial have been identified.

3. I note the importance of ensuring that the child’s needs are appropriately protected by Court order, given the difficulty the parents have in coming to agreement on these issues.  I propose to maintain the existing final orders that were made by consent in June 2007 until further order.

Property matters

1. I have also this day made directions as to how the property matter will proceed.  Given that the property in dispute is very likely to be identified once certain valuations of the applicant’s superannuation have been completed, it would be highly instructive for the parties to attempt a final settlement with a Registrar of this Court.  In any event, I have listed the matter for final hearing on 29 March 2010 should a conference with the Registrar be unsuccessful.

2. The parties will prepare a joint balance sheet in accordance with the precedent attached to the Orders I have made (Annexure A)[1] prior to the conference with the Registrar.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks.  

Legal Associate: 

Date:  28 January 2010

[1] ANNEXURE A

FAMILY COURT OF AUSTRALIA
EXERCISING JURISDICTION
UNDER THE FAMILY LAW ACT 1975 (CTH)

MATTER: CLOVELLY CAF 655 of 2005

BETWEEN:

MR CLOVELLY

AND:
MS CLOVELLY

JOINT SCHEDULE OF ASSETS & LIABILITIES

Assets Value Source Nature of Dispute?