DEFREY & RADNOR
[2020] FCCA 713
•9 April 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DEFREY & RADNOR | [2020] FCCA 713 |
| Catchwords: FAMILY LAW – Procedural – Application to re-open proceedings following consent orders being made in 2015 – consideration of Rice v Asplund principles – Applicant Father confirmed that issues raised are more about slight refinement of Orders – no other Application filed since 2015 Orders which further leads to the view that the issues raised by the Father are more matters of procedure and logistics and do not constitute a “material change in circumstances” – Application dismissed with an Order for costs in favour of the Mother. |
| Legislation: Family Law Act 1975 (Cth), s. |
| Cases cited: Carriel v Lendrum (2015) 53 Fam LR 157 CDW v LVE [2015] WASCA 247 Marsden v Winch (2010) 42 Fam LR 1 Rice & Asplund (1978) 6 Fam LR 570; [1979] FLC 90-725 SPS v PLS (2008) 217 FLR 164; (2008) FLC 93–363; (2009) 39 Fam LR 295 |
| Applicant: | MR DEFREY |
| Respondent: | MS RADNOR |
| File Number: | SYC 3980 of 2012 |
| Judgment of: | Judge WJ Neville |
| Hearing date: | 13 December 2019 |
| Date of Last Submission: | 2 March 2020 |
| Delivered at: | Canberra |
| Delivered on: | 9 April 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr M Weightman |
| Solicitors for the Applicant: | Conditsis Lawyers |
| Counsel for the Respondent: | Ms M Vohra SC |
| Solicitors for the Respondent: | Lander & Rogers |
ORDERS
Subject to the following Orders, the Father’s Application, filed 7th November 2019, be dismissed;
The Father pay the Mother’s costs, either as agreed or taxed;
Within 14 days of the date of these Orders, being by 23 April 2020, the parties are to provide Chambers with an agreed form of Orders regarding:
(a)obtaining a passport for the child, and
(b)the provision of information to either or both parents regarding the child’s participation in non-school activities;
Absent agreement regarding the form of Orders in relation to Order 3 of these Orders, the parties are to attend mediation, and in the absence of resolution, the parties are to attend arbitration, with the costs of both processes to be borne equally by the parties;
Regarding any other issue relating to the past and current parenting Orders, the parties are to attend mediation in the first instance, and failing agreement, they shall attend arbitration, with the costs of both processes to be borne equally by the parties.
IT IS NOTED that publication of this judgment under the pseudonym Defrey & Radnor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
SYC 3980 of 2012
| MR DEFREY |
Applicant
And
| MS RADNOR |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter relates to one child, X, who is 8 years old. Final Orders were made by consent in May 2015. The Applicant Father now seeks to re-visit those Orders. He contends that, among other things, those Orders no longer relevantly or appropriately provide for X’s needs. Put somewhat colloquially, the Father seems to be suggesting that X has “outgrown” the 2015 Orders.
The Father also seeks Orders for the child to obtain a passport, and to travel overseas, which is obviously a tad problematic at the present time. In general terms, the existing Orders actually provide for international travel (Order 14), admittedly with no formal provision for obtaining a passport for the child.
At par.5 of his supporting Affidavit, filed 7th November 2019, the Applicant Father stated: “… I am seeking a slight variation to the Final Orders to avoid further confusion regarding the interpretation of the Final Orders, and a slight increase in time that X spends with me as contemplated by the Final Orders.” In colloquial terms, such a statement might reasonably be described as an “own goal” for the Application before the Court.
Two other comments are apposite at the outset.
First, the Court should be able reasonably to assume that these litigants, who were legally represented at the time of making final Orders by consent, and who also had the benefit of an Independent Children’s Lawyer, (a) recognised that the child who is the subject of the Orders would grow up and that, in consequence, his needs and interests would likely change, and (b) issues of “interpretation” of those consent Orders were also, in some way, factored into the negotiation and resolution process.
Secondly, especially where, as here, the contest really is about a few, modest aspects of the Orders, it should not be the case that the first or primary “port of call” is the Court and its completely overwhelmed resources. Indeed, in a manner of speaking, the May 2015 Orders (Orders 22 & 23) provide a mechanism for dealing with “developmental issues”, which might be able to be understood to include related parenting issues.
One might also venture the further observation that it would be certainly a quicker and generally expeditious exercise if such disputes that are on display here, which primarily are matters of logistics and negotiation, were to be resolved through mediation in the first instance, and absent agreement, through arbitration.
While I am prepared to make an Order for very modest aspects, such as the signing of passport forms (which may readily be implied in the existing Orders), an issue of an increase in X’s time with his Father is a more substantive matter. In my view, it does not, on the evidence before the Court, come readily within the principles of a relevant “change in circumstances” as to warrant the Final Orders of May 2015 to be re-visited. As set out in the Father’s primary Affidavit of November 2019, the issues read more like a change in preferences (with some matters of logistics) by the Father. As such, there is no relevant “change in circumstances’. Accordingly, subject to a few minor amendments to the Orders noted later in these reasons, the Father’s Application, filed 7th November 2019, must be dismissed with costs in the Mother’s favour, either as agreed or taxed.
Orders sought by the Applicant
The Applicant’s Orders sought were contained in his Initiating Application, was filed on 7th November 2019. The final Orders sought were as follows:
FINAL ORDERS
1. That the Father and Mother have equal shared parental responsibility in respect of the Child, X born in 2011 (“the Child”).
2. That the Child spend time with the father on a fortnightly basis as follows:
2.1 In week one - From conclusion of school Wednesday (or 3:30pm if not attending school) until the commencement of school Friday (or 9:00am if not attending school); and
2.2 In week two - From the conclusion of school Wednesday (or 3:30pm if not attending school) until commencement of school (or 9:00am if not attending school) the following Monday (or Tuesday if coinciding with a long weekend).
3. In the alternative to Order 2 herein, that the Child spend time with the Father on a fortnightly basis from the conclusion of school Wednesday (or 3:30pm if not attending school) each alternate week until commencement of school (or 9:00am if not attending school) the following Monday (or Tuesday if coinciding with a long weekend).
4. In the alternative to Order 2 or 3 herein, that the Child spend time with the Father on a fortnightly basis from the conclusion of school Thursday (or 3:30pm if not attending school) each alternate week until commencement of school (or 9:00am if not attending school) the following Monday (or Tuesday if coinciding with a long weekend).
During Term 1,2 and 3 School Holidays
5. That, notwithstanding any other Order herein, the Child will spend time with parties during the Terms 1,2 and 3 school holiday periods as follows:
5.1 In even-numbered years with the Father for the first week of each school holiday period commencing at the conclusion of the last day of school term until 6:30pm on the second Sunday of the school holiday period; and
5.2 In even-numbered years with the Mother for the second week for each school holiday period commencing at 6:30pm of the second Sunday of the holiday period until the commencement of school;
5.3 In odd-numbered years with the Mother for the first week of each school holiday period commencing at the conclusion of the last day of school term until 6:30pm on the second Sunday of the school holiday period; and
5.4 In odd-numbered years with the Father for the second week for each school holiday period commencing at 6:30pm of the second Sunday of the holiday period until the return of school.
Christmas School Holidays
6. That notwithstanding any other Order herein the Child spend time with the parties during the Term 4 school holiday periods as follows:
6.1 With the Father for the first half of the school holiday period commencing at the conclusion of school of the last day of the school term (or 3:30pm if not attending school) until 6:30pm on the midpoint day of the school holiday period in odd-numbered years;
6.2 With the Father for the second half of the school holiday period commencing from 6:30pm on the day that is the midpoint of the school holiday period and concluding at the commencement of school on the first day of school term (or 9:00am if not attending school) in even numbered years;
6.3 With the Mother for the second half of the school holiday period commencing from 6:30pm on the day that is the midpoint of the school holiday period and concluding at the commencement of school on the first day of school term (or 9:00am if not attending school) in odd-numbered years;
6.4 With the Mother for the first half of the school holiday period commencing at the conclusion of school of the last day of the school term (or 3:30pm if not attending school) until 6:30pm on the midpoint day of the school holiday period in even-numbered years.
6.5 For the purpose of this order, in the event that there is an uneven number of days in the Term 4 school holiday period, the Mother will have the additional day in even numbered years and the Father will have the additional days in uneven numbered years with such additional day:
6.5.1 In the case of the father, extending the father’s time pursuant to Order 6.1 at the conclusion of the father’s time by the additional day; and
6.5.2 In the case of the Mother, extending the Mother’s time pursuant to Order 5.4 at the conclusion of the Mother’s time by the additional day.
SPECIAL OCCASIONS
7. That notwithstanding any other Order herein the Child will spend time with the parties on special occasions as follows:
7.1 With the Father each Father’s Day from 6:30pm on the Saturday prior to Father’s Day until the commencement of school the following Monday (or 9am if not attending school).
7.2 With the Mother each Mother’s Day, from 6:30pm on the Saturday prior to Mother’s Day until the commencement of school the following Monday (or 9am if not attending school).
7.3 With the Father on X’s birthday in each odd numbered year as follows:
If a school day, from the conclusion of school (or 3:30pm if not attending school) until 6:30pm; and
If not a school day from 9am to 6:30pm.
7.4 With the Mother on X’s birthday in each even numbered year as follows:
If a school day, from the conclusion of school (or 3:30pm of not attending school) until 6:30pm;
If not a school day from 9am to 6:30pm.
7.5 If not already in the father’s care, with the Father from the conclusion of school (or 3:30pm if not attending school) the Thursday before Good Friday until the return to school Tuesday (or 9:30am if not attending school) in even numbered years.
7.6 If not already in the mother’s care, with the Mother from the conclusion of school (or 3:30pm if not attending school) the Thursday before Good Friday until the return to school Tuesday (or 9:30am if not attending school) in odd numbered years.
Extracurricular Activities
8. That the parties will keep each other informed of the details of extracurricular activities that the Child attends.
9. That the parties ensure that they facilitate the Child’s attendance at his extracurricular activities when the Child is in their care.
10. That in the event the Child takes international school excursions, without in anyway limiting the party’s rights for international travel with the Child pursuant to Orders 14, 15 and 16 the father be at liberty to travel with the Child on the next International school excursion that the Child attends and the Mother be at liberty to travel with the Child on the following international school excursion that the child attends and the parents alternate thereafter such that the parents would not travel in the same international school excursion for any future international school excursions with either X’s primary or secondary school.
11. For the purpose of Order 11, the travelling parent pursuant to Order 11 shall notify the non-travelling parent of their intentions to travel with the Child on the international school excursion not later than 21 days prior to the scheduled departure date and if the travelling parent advises the non-travelling parent that they do not intend to travel with the Child for that international school excursion pursuant to Order 11 THEN the non-travelling parent be at liberty to attend the international school excursion in lieu of the travelling parent.
Changeovers
12. That change overs not occurring at X’s school are to be facilitated by the Mother or her nominee delivering the Child to the Father at the Father’s residence at the commencement of the Father’s time and the Father or his nominee delivering the Child to the Mother at the Mother’s residence at the conclusion of the Father’s time.
International Travel
13. That pursuant to section 65Y(2) of the Family Law Act the Mother and Father be permitted to remove the Child from the Commonwealth of Australia for the purpose of a holiday subject only to compliance with Orders 14 and 15
14. Subject to compliance with Order 15, the Mother and Father are at liberty to remove the Child from the Commonwealth of Australia for the purpose of an international holiday and suspend the non-travelling parents time pursuant to Orders 2,3 and 4, for the purposes of international travel PROVIDED THAT:
14.1 Any such overseas travel does not exceed more than 21 consecutive or non-consecutive days per year with each parent.
14.2 Any such overseas travel must not coincide with or suspend the non-travelling parents time during the term 4 Christmas school holiday period.
14.3 Any such overseas travel must not suspend more than 7 nights that the Child would otherwise spend with the non-travelling parent pursuant to these Orders.
14.4 Unless otherwise agreed in writing by the parents and subject to the approval of the Child’s school, any period of proposed overseas travel will take place during the school holidays as exercised by the school that the Child attends.
14.5 Where such overseas travel results in the suspension of the Child’s time with the non-travelling parent THEN the non-travelling parent will spend make-up time with the Child during the following term 1, 2 or 3 school holiday period in an amount equivalent to the time suspended by the overseas travel with such make up time to be taken consecutively with the non-travelling parent’s usual holiday time as follows:
a. In the case of the Father, such make up time will extend the time the child is to spend with the Father by an equivalent amount of time:
i. at the conclusion of the Father’s usual holiday time in even numbered years; and
ii. at the commencement of the Father’s time in odd numbered years.
b. In the case of the Mother, such make up time will extend the time the child is to spend with the Mother by an equivalent amount of time:
i. at the conclusion of the Mother’s usual holiday time in odd numbered years; and
ii. at the commencement of the Mother’s time in even numbered years.
15. For the purpose of facilitating overseas travel with the Child in accordance with Orders 13 and 14, the travelling parent MUST:
15.1 Provide to the non-travelling parent, no less than 42 days prior to the departure date of any overseas travel that will coincide with the Child’s time with the non-travelling parent, particulars of the overseas travel, including the proposed itinerary and proposed period of such travel;
15.2 Provide to the non-travelling parent, no less than 21 days to the departure date of any overseas travel which does not coincide with the Child’s time with the non-travelling parent, particulars of the overseas travel, including the proposed itinerary and proposed period of such travel;
15.3 Provide to the non-travelling parent, a final itinerary including contact telephone numbers and full street addresses of where the Child will be staying together with a copy of return airline tickets for the Child and details of flights at least 14 days prior to departure for any overseas travel; and
15.4. Use their best endeavors to facilitate the Child having reasonable telephone and/or skype and/or email communication with the non-travelling parent while they are overseas.
Passport
16. Should either parent wish to apply for an Australian passport for the Child or renewal of that passport, the parent wishing to apply for the passport shall provide the other parent with the passport application for that parent’s signature and that parent shall, within 14 days, do all acts and things necessary to facilitate the issuing of the passport, with payment for the passport application to be made by the parent seeking to have the passport issued.
17. For the purpose of facilitating overseas travel in accordance with the Orders, each parent must do all acts and things and sign all documents necessary, including but not limited to signing any consent letter, within 14 days of the travelling parent requesting such consent letter or passport application to be signed by the non-travelling parent.
18. In the event either parent neglects and/or refuses to sign the Child’s application for an Australian passport and/or the renewal of the Child’s Australian passport within 14 days of receipt of any such document from the other parent, then the requesting parent is at liberty to apply to the Court for an Order in relation to the Child’s Australian passport.
19. Upon the Father giving notice to the Mother of his proposal to travel out of the Commonwealth of Australia in accordance with Order 16, the Mother shall release the Child’s passport to the Father not less than 14 days prior to the notified date of departure and the Father shall return the passport to the Mother within 7 days of returning from any travel with the Child in accordance with these Orders.
Notice and Communication.
20. That each party will provide the other party with 48 hours written notice of their intention to take the Child outside of the ACT/City A region during any period the Child is in that party’s care and will provide the other particulars of the locations at which the Child will spend time outside the ACT/City A region including where possible the contact details of any accommodation such that the non-travelling parent would be able to contact the travelling parent and child in the case of an emergency.
21. That this Order be authority to the school/s attended by the Child to provide to both parents copies of school reports for the Child, notices and invitations normally provided by the school to parents, to include a photograph ordering forms and the parents will make his/her own arrangements with the respect to ordering and paying for any such photographs of the Child.
22. That each party is at liberty to attend the Child’s school for the purpose of any function to which parents are normally invited to attend.
23. That each party keep the other informed of changes to the Child’s health while the Child is in their care and as soon as practicable, notify the other parent of any medical emergency involving the Child.
24. This Order be authority to any Doctor or other medical specialist upon whom the Child may attend to provide to the Father or information he may request with respect to the Child and copies of any reports.
25. That each party is to keep the other updated as to their current residential and email address and contact telephone number.
26. Each party must notify the other of any change to the residential or email address or contact telephone number within 14 days of such change.
27. That both parents will facilitate telephone and or video contact with the parent not already spending time with the Child pursuant to these Orders.
28. For the purpose of Order 28 herein such communication shall be initiated by the parent not already spending time with the Child pursuant to these Orders telephoning the other parent’s mobile telephone or the Child’s mobile telephone or other communication device. The parties must ensure that their telephone or the Child’s telephone or other communication device is charged, switched on and that the call is answered.
29. That the parties shall permit the Child to telephone the other parent at the Child’s request to do so.
30. That each party is restrained by injunction from denigrating the other parent or a member of the Child’s family to or in the presence or hearing of the Child.
Orders sought by the Respondent
The Respondent’s Orders were outlined in her Response filed on 11th December 2019. The final Orders sought were as follows:
1. That paragraphs 1 to 30 of the final orders sought by the Husband be dismissed.
2. That the Husband pay the Wife's costs of and incidental to these proceedings.
3. Such further and other orders as the Court deems fit.
Submissions on behalf of the Applicant
The Applicant filed written submissions on 12th February 2020, which were as follows:
WRITTEN SUBMISSIONS FOR APPLICANT FATHER
1. The proceedings concern parenting orders for one child X (born in 2011), now aged 8 years, 5 months.
2. Orders were made by consent on 5 May 2015 concerning the parenting arrangements for X (D1, Annexure D-01 p.16). X was then aged 3 years and 8 months.
3. The father seeks changes to the 2015 orders (see Initiating Application filed 7 November 2019).
4. The mother has taken issue that there is no sufficient reason to re-open the parenting proceedings.
5. The Court made orders on 13 December 2019 for the filing of further evidence from the father and written submissions. In the circumstance of the father’s family being involved in the fires in January and the consequent delay in finalising the father’s evidence, the parties agreed between themselves to slight adjustments to the timetable, but still with the intention of having all written submissions finalised by 28 February 2020.
6. The father relies upon;
a. Initiating Application filed 7 November 2019.
b. Affidavit of Mr Defrey filed 7 November 2019 (“D1”).
c. Affidavit of Mr Defrey filed 4 February 2020 (“D2”).
THE LAW
7. The law concerning the point as to fresh proceedings when there are existing parenting orders is well-settled. There needs to be some changed circumstance justifying a re-consideration of the parenting orders (Rice & Asplund (1979) FLC 90-725).
8. The Full Court in Marsden & Winch [2009] FamCAFC 152 at [58]put it this way;
“That question might be better formulated in another way in the following proposition, namely that there is a requirement:
(1) for a prima facie case of changed circumstances to have been established;
(2) for a consideration as to whether the case is a sufficient change of circumstances to justify embarking on a hearing.”
9. The Full Court more recently in Elmi & Munro [2019] FamCAFC 138 at [38] held;
“The essence of the issue to be determined is whether there has been a material change in circumstances which indicate that it would be in the best interests of the child for there to be a reconsideration of the parenting orders.”
10. Of particular relevance in the present proceedings is the statement by Warnick J in SPS & PLS [2008] FamCAFC 16 at [48(v)];
“The application of the rule is closely connected with the nature of, and degree of, change sought in the earlier order.”
11. Further, in Searson & Searson [2017] FamCAFC 119 at [15] it was held;
“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.”
12. Like in the present proceedings, whilst Searson had resolved by consent in the first instance, there had by that stage already been a Family Report prepared (see [24]). In other words, it should not be though that the Court’s comments in Searson relate to proceedings which had resolved by consent either prior to or shortly after the commencement of proceedings.
13. The Full Court had earlier said in Newling & Newling [1987] FamCA 21 at [19] – [20];
“What this rule really illustrates is that it is, generally speaking, not in the interests of the child to have repeated applications concerning its custody and access before the Court. There must, in other words, be an end to litigation.
At the same time, as against that, one must balance the other consideration, and that is, that the circumstances of children, generally speaking, are likely to change as those children grow up, and their psychological and physical needs change from time to time.”
14. In circumstances where the Court embarks upon a consideration of the matter in accordance with the principle enunciated in Rice & Asplund as a preliminary issue, like is being done in the present proceedings, the Court is “bound to assume the acceptance of the [applicant’s] evidence on the question of whether a sufficient change in circumstances was demonstrated.” (Searson & Searson [2017] FamCAFC 119 at [60]).
APPLICATION
15. X lives with his mother and spends 4-nights per fortnight with the father as well as special occasions and holidays.
16. The father points to a number of issues as justifying a change to the parenting orders for X.
17. The father is concerned about the structure of the time X spends with him (D1 [6] – [14]; D2 [52] – [53]). The father gives evidence that for a period of 4.5 years, the fortnightly arrangements for X were not in accordance with the orders. That is, instead of the Wednesday overnight occurring in the off-week, it was actually occurring in the same week as the alternate weekends so X was spending Wednesday with the father, then Thursday with the mother, then Friday, Saturday and Sunday nights with the father. The father says that he raised this issue with the mother’s solicitors, and without his consent, and despite such an arrangement being in place for 4.5 years, the mother insisted upon a change for X, which now sees compliance with the orders. Despite the compliance, the father says the insistence upon that compliance is a significant change “because X has become accustomed to spending a large amount of time with me every second week over the past 4 and a half years, as opposed to the time being spread out over various weeks.” (D1 [13]). There can be little doubt the change to X’s long-standing arrangements, whether in accordance with orders or not, represents a change in circumstances justifying a re-consideration of the orders for X.
18. The father also gives evidence that “X who is now nearly eight and a half years of age, has grown emotionally [since the 2015 orders]. I would describe X as rapidly developing greater emotional intelligence. His resilience has also grown beyond expectation, particularly having regard to the behavioural issues exhibited at the time of the Orders.” (D2 [6]). Further, the father says “my relationship with X has flourished in a way that I had hoped but did not anticipate given the behavioural problems exhibited by X in Ms Radnor’s care at the time of the Final Orders” (D2 [50]). The behavioural problems referred to by the father were what was described by the Family Consultant in 2015 as “X’s regressive and infantile behaviour when he returns to his mother’s care” (D2 Annexure D2-01 p.16 [36]). X’s concerning behaviour, so extreme that it caused the interview between the mother and the Family Consultant to be abandoned, was described in detail by the Family Consultant ([32] – [34]). This in itself represents a change in circumstances and is supportive of X spending additional time with the father as he seeks. As the Full Court emphasised in Newling as children grow, there psychological needs can change. There can be no doubt X’s psychological needs have changed in the last, almost 5-years, from when he was not yet aged 4. The passage quoted above from Searson also has application in that there has been changes for X since the consent orders were made. This change is sufficient to justify a reconsideration of the orders.
19. The father gives evidence as to difficulties in implementing the school holiday arrangements (D1 [15] – [26]; D2 [27] – [35]). The father describes practical difficulties, but also fundamental issues as to the length of the block-time during the term 4 holidays, and that X is wanting to spend longer periods with the father (D2 [33]). X presently spends time with each parent on a week-about basis during the term 4 holidays instead of blocks of 3-weeks with each parent, (Order 7.b.). As mentioned above, the father describes X’s emotional growth and improved behaviour since the making of the interim orders almost 5-years ago. One can well understand in the context of X’s presentation as it was then, as set out in the Family Report of Mr B (D2 Annexure D2-01 p.2), that the parents agreed to week-about arrangements during the term 4 holidays. Newling and Searson both have application in these circumstances.
20. The parties are in dispute as to overseas travel provided by X’s school (D1 [27] – [32]; D2 [54] – [64]). The 2015 orders do not provide a mechanism by which such a dispute can be resolved between the parties, such that their inability to agree is a change in circumstances justifying the Court’s intervention.
21. The father raises a concern about the difficulties in obtaining a passport for X and notice about travel X is undertaking (D1 [33] – [49]; D2 [65] – [71]). It could be thought these issues could be dealt with easily between the parents, but presently they remain concerns. The issues nevertheless constitute a change as the 2015 orders did not contemplate dispute in these areas such that now that a dispute exists, orders should be made in a way that avoids the dispute.
22. The father refers to the lack of information communicated to him about X’s extra-curricular activities, and how that lack of information causes, or will cause, difficulties for X (D1 [50] – [58]; D2 [36] – [45]). It is difficult to understand why such information would not be conveyed, and the fact it is not, represents a change in circumstances because no-one would have contemplated such information would not have been conveyed at the time of the 2015 orders. In the circumstances where such information is not being conveyed, a regime needs to be put in place to ensure that the information is conveyed.
23. The father gives evidence about difficulties in implementing the change-over arrangements and the resulting difficulties for X, including family violence having occurred at changeover (D1 [59] – [79]; D2 [9] – [26]). Plainly, these are not problems one would have contemplated at the time of the 2015 orders, the difficulties represent a change in circumstances.
CONCLUSION
24. The father’s evidence concerning all these issues, needs to be accepted for the purpose of this argument being dealt with on a preliminary basis (Searson at [60]).
25. As Warnick J remarked in SPS & PLS, applying the so-called rule in Rice & Asplund requires attention to the nature and degree of the changes sought. In other words, the more radical the change sought to the orders, the more significant the change in circumstances ought to be justifying a re-intervention by the Court.
26. To varying degrees, none of the issues to which the father refers, and the way in which he suggests they be addressed, could be considered radical.
27. If for instance the father was seeking that X live with him and spend very limited time with the mother, such an application would require quite a serious change in circumstances.
28. As in Searson, the matters referred to by the father in the present dispute are all matters arising since the consent orders were made. For the different reasons concerning each issue, the father no longer consents to those arrangements.
29. It is in X’s best interests that all of the matters raised by the father are dealt with in the ordinary way. Each issue, in its own way, represents a change in the circumstances since the 2015 orders, which justifies this Court’s intervention to deal with the merits of the issues.
30. The issues do not warrant, in essence, summary dismissal of the father’s application. The proceedings should continue in the ordinary way.
Submissions on behalf of the Respondent
The Respondent filed written submissions on 26th February 2020, which provided as follows:
Submissions
1. The Final Orders were made in a comprehensive and considered manner after numerous interim orders and three years of litigation between the parties. The Applicant was represented and had the benefit of Counsel throughout the process.
2. The parties had the benefit of a Family Report from Mr B at the time the Final Orders were agreed to and the Final Orders substantially reflect its recommendations.
3. The Final Orders provide for (inter alia):
3.1 Equal shared parental responsibility for X [1];
3.2 For the X to have substantial and significant time with the Applicant [3];
3.3 A staggered increase of holiday time between X and the Applicant such that X now has 7 consecutive nights with the Applicant in school term holidays and half of the summer holidays as agreed and failing agreement on a week about basis and with a clear start time for those weeks [7];
3.4 Time between X and the Applicant for special occasions [8]-[11];
3.5 Changeovers unless agreed to be at the C shops at the commencement of the Applicant’s time and Suburb D shops at the conclusion of the time [12];
3.6 Provision for overseas travel [14];
3.7 Communication about X’s health and medical emergencies [18];
3.8 Therapy with Ms E regarding any psychological and developmental concerns regarding X, that such therapy can include X, and that prior to any increase in time under the orders (given time was increasing in a staggered way) the parties attend Ms E to address any concerns [21-23];
3.9 Communication and information about X between the parties [13]-20] and [26].
The Rule in Rice v Asplund and the Applicant’s onus
4. The long established rule in Rice v Asplund states (at [41]):
…where an order has been made in relation to the issue of where [a] child should live, the Court should not lightly entertain an application to reverse that earlier order unless it is satisfied that there are changed circumstances (in the sense that a new factor has arisen or some material factor was not disclosed at the previous hearing) which would justify the reversal.
5. The consideration of the rule is generally considered at a preliminary hearing and if such application to re-open parenting proceedings is resisted (as in this case) then, “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 in circumstance shown to justify embarking on a hearing. Though sometimes unstated, the underlying conclusion will or ought to 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.
6. In Marsden & Winch the Full Court commented on the test to be applied- that there is a requirement for a prima facie case of changed circumstances to have been established (by the applicant), and consideration as to whether the change is sufficient to justify embarking on a hearing. (Emphasis added)
7. The rule in Rice v Asplund has long been regarded as a manifestation of the best interests principle, to protect children from the damage and difficulties of perpetual dispute over them by their parents. It balances the changes in circumstances that may occur that warrant relitigating final orders with those that do not. The Full Court in Carriel & Lendrum says of the rule:
57. In a case where the principle in Rice & Asplund arises for consideration, there are two circumstances which are central to the decision. First, there will already exist a parenting order and, axiomatically, the terms of that order will reflect the best interests of the child/ren at the time of its making. Second, the fact that an order has been made reflects that disputation between parties to a parenting dispute, such dispute being inherently contrary to the best interests of the child/ren whilst it exists, has been brought to an end by a curial order. Those twin circumstances dictate the conclusion that it cannot logically be in the best interests of the child/ren to embark upon further litigation enquiring as to the child/ren’s best interests unless it is first demonstrated that a sufficient change in circumstances has occurred since the parenting order was made.
The Evidence of the Applicant at its highest fails
8. In the Initiating Application of the Applicant filed 7 November 2019 (“the Application”) he seeks what he describes as a “slight variation to the Final Order to avoid confusion regarding the interpretation of the Final Orders and a slight increase in the time that X spends with [him] as contemplated by the Final Orders.”
9. He seeks as final orders, in the alternative, that X spends 2 nights with him in one week and 5 nights in the next week, or a block of 5 nights per fortnight, or a block of 4 nights per fortnight. X currently spends 4 nights per fortnight with the Applicant. One of the final orders the Applicant seeks therefore does not even increase the time X spends with him, it merely changes its configuration.
In response to the matters raised in the Applicant’s submissions:
10. The proposed orders in the Application for holiday time do not change to any significant degree holiday time or special occasion time between X and the Applicant. The Final Orders already provide 7 consecutive nights in school term holidays and equal sharing of the long summer vacation as agreed. It is only in default of agreement that the long summer holiday time is week about.
11. The Applicant seeks orders regarding extra-curricular activities. There is no dispute to resolve about extra-curricular activities by the making of these orders.
12. He seeks orders regarding an international excursion. If this is an issue in 2022 (and there is little evidence, it would be an issue before this) then a specific application could presumably be made.
13. The Application seeks a change in the changeovers. His evidence illustrates this is not a problem enough to warrant re-opening parenting proceedings.
14. The Application seeks orders for international travel. The Final Orders anticipate international travel.
15. The Application seeks orders for a passport for X. There is no dispute between the parties as to this issue.
16. The Application then seeks orders for Notice and Communication which essentially replicate the Final Orders.
17. The Applicant’s evidence of a change in circumstances taken at its highest as to each of the matters raised is as follows.
18. As to the change of time to a block of time he deposes that for 4 years since the making of the Final Orders he acquiesced to the Respondent’s mistaken interpretation of them and had his 4 nights per fortnight with X in the same week. At a result of the complaint of the Applicant, the Respondent offered to change the configuration to fit with the Final Orders. This was not her doing but the Applicant’s doing. He cannot now complain that an adherence to the Final Orders is a change in circumstance. By definition, following orders does not change them. There has therefore been no change in circumstance that warrants re-opening this issue. If the Applicant did not want to change the configuration from the status quo, he should not have complained about it. He cannot use his own complaint to now seek to alter the Final Orders.
19. X’s increased age and maturity – This is only to be expected, it is in no way unanticipated that X will grow older and may find transitions between his parents easier as he matures. Although he was younger when the Consent Orders were entered into, they are staggered and the final configuration for fortnightly time has only been in place since 1 October 2016, just over 2 years and the holiday time since June 2018. The Final Orders anticipate that which the Applicant now argues ought be considered a change in circumstance, that is that X will grow and emotionally mature.
20. As to any variation of the holiday orders he deposes that in April 2019 there was some confusion as to his time but agrees he had time as per the Final Orders for 7 nights in a row. He deposes that in March 2019 the Respondent misread holiday dates and was concerned he may miss out on Christmas with X but that this confusion was addressed. He will have time as per the Final Orders. There has therefore been no change in circumstance that warrants re-opening this issue.
21. As to school excursions overseas this may be an issue as of October 2020 or 2022. The Respondent would propose both parties spend separate time in Country F with X. This seems an irresistible outcome, but should the Applicant not agree and should the Court need to make orders about this, the issue can be addressed as a discrete issue then. It is only the Respondent who is of Country F heritage. This is not a change in circumstance at all, rather a pre-emptive expectation of a dispute between the parties they have not yet had and indeed may never have. It cannot therefore be a change in circumstance that warrants re-opening parenting proceedings. There is no present dispute.
22. As to international travel this is contemplated in the Final Orders and there is no current dispute between the parties regarding this. There is agreement X should have a passport, and the only reason the application was not progressed was the Respondent was waiting for the Applicant to respond to her given he wrote on the application signed by him. These cannot be considered in anyway a change in circumstance that warrants re-opening parenting proceedings.
23. As to extra-curricular activities the parties agree X should do these and should these impact on X’s time with his father (as sports is likely to in 2020) then clearly he will need to be informed. There is no dispute as to this. It cannot therefore be considered a change in circumstance that warrants re-opening parenting proceedings.
24. As to changeovers, the Applicant complains of 3 incidents one of which occurred in Sydney, and another one of which occurred 3 years ago. The Respondent had offered changeovers at school on the basis that the Applicant commit to being at school on time. This was refused by the Applicant who insisted on the status quo remaining. If there are 110 changeovers per year as the Applicant deposes in [59] of his Affidavit then since the Final Orders were made there have been around 500 changeovers between the parties. Complaining of 3 of these is not a change in circumstance that warrants re-opening of the parenting proceedings. If there are other occasions he cannot now recall they can hardly have been of sufficient concern to him. It is not a sufficient reason to reopen parenting proceedings. His evidence as to X’s alleged demeanour at changeovers contradicts his own evidence as to X’s increased maturity and resilience.
25. As to increase in time the Applicant does not depose to any change in circumstance regarding this and merely complains he believes Ms E cannot assist the parties as contemplated in the Final Orders which is not the Respondent’s belief.
26. As to notices and communications these are provided for in the Final Orders in terms almost identical to those sought in the Application. If the Applicant complains that the Respondent does not comply with the Final Orders, such allegation being denied by her, then the appropriate recourse is a Contravention Application, not an application to re-open parenting proceedings.
27. Taken at its highest therefore it is respectfully submitted that the Applicant has failed to establish any change of circumstance such that there should be further parenting proceedings between these parties.
28. As such the Respondent seeks the Application be dismissed and her costs of and incidental to her Response.
Submissions in reply on behalf of the Applicant
The Applicant’s written submissions in reply, filed 2nd March 2020, were as follows:
WRITTEN SUBMISSIONS IN REPLY FOR APPLICANT FATHER
1. These submissions are made in reply to the Written Submissions of the Respondent Mother filed 26 February 2020.
2. All submissions made in the Written Submissions for Applicant Father filed 12 February 2020 are maintained.
3. All references to paragraph number are references to the paragraph numbers in the Written Submissions of the Respondent Mother filed 26 February 2020, unless said otherwise.
4. The Respondent’s submissions at [18] that the father “cannot now complain that an adherence to the Final Orders is a change in circumstance”, with respect, misses the point. The mother emphasises that it was the father who raised the lack of compliance with the orders, but this ignores the fact the father’s communication regarding the issue was part of correspondence where a great many more issues were raised (D2 [53]). The mother then chose to put in place arrangements consistent with the 2015 orders which until that point had not been adhered to. That represented a significant change for X. This is so regardless of how the change came about. It is simply irrelevant that the change reflected “adherence to the Final Orders”. In addition, the mother’s submission that one of the final orders sought by the father does not actually increase X’s time with the father is correct (at [9]), that is because of the change in the form of the spend-time arrangements forced by the mother.
5. The Respondent’s submissions at [19] gloss over the real difficulties being encountered with X at the time of the final orders, X then aged 3 years, 8 months. X’s circumstances were not what would be expected in the sense of merely putting in place a regime of increasing time because a child is young. X’s difficulties were much more significant and the father gives evidence of the unexpected changes.
6. It is correctly submitted on behalf of the Respondent that “It is only in default of agreement that the long summer holiday time is week about” (at [10]). Plainly there have been difficulties in reaching the “agreement” in the orders. The lack of agreement together with the difficulties week-about time causes as deposed to by the father, combined with the unexpected advances in X’s behaviour are supportive of the father’s approach of “block” time during the Christmas school holidays. The first of these factors (lack of agreement), was plainly anticipated at the time of final orders, hence the default contained within the orders, but the other two issues were not.
7. There is plainly a concern regarding the international excursion, the Respondent’s submissions accept “this may be an issue as of October 2020 or 2022” (at [21]). The father filed these proceedings on 7 November 2019. With respect, the likely length of time to resolve this preliminary issue will be in the order of 4 – 5 months. If the case is now stopped as suggested by the mother, in perhaps March or April when judgment issues, in the context of a trip scheduled for October 2020, it will likely be too difficult for the matter to then be the subject of a fresh application, hearing and then judgment. The matter presents as an issue now, it should be dealt with. It isn’t clear why it is considered of relevance that “It is only the Respondent who is of Country F heritage”, but it seems the suggestion is that father should not be involved in this aspect of X’s life, or should have less interest than the mother. The evidence makes clear the father is an involved, interested, and pro-active parent. To suggest, or at least infer, that the father should not be involved in this aspect of X’s life and schooling is plainly concerning. The asserted “irresistible outcome” suggested by the mother (at [21]), is not supported by the father. Plainly there is a dispute.
8. The Respondent’s submissions suggest there is no dispute to resolve about extra-curricular activities (at [11]), but such submission ignores the father’s evidence (D1 [50] – [58]; D2 [36] – [45]). There is a dispute. The mother has refused, and as the submissions filed on her behalf suggest, will continue to refuse to provide such information (“should these impact on X’s time with his father … then clearly he will need to be informed.” (at [23])). The high-handed approach adopted by the mother is surprising and unfortunate. It is difficult to understand, in circumstances where these parents equally share parental responsibility, and all that entails, that the mother’s approach to the father wanting to know about activities in which their son is involved is conveyed on a “needs to know basis”.
9. The Respondent’s submissions accept there is a problem with change-overs, but take the point it is not “enough” of a problem to warrant re-opening the proceedings (at [13]). The Respondent’s submissions make the point the father only complains of 3 occasions over a lengthy period of time (at [24]). The submission ignores the father’s evidence, which the Respondent accepts must be accepted for the purpose of this application (at [5]), that there have been many more than 3 such occasions (D2 [18]). It is entirely understandable the father would not have a complete record of every concerning event – indeed, it would be cause for alarm if the father had been keeping a record of every difficulty encountered with changeover. The mother’s determined insistence on maintaining the present arrangements in circumstances which raise real concerns for X, instead of facilitating what would be an easy practical change as proposed by the father is a concern, but the Court need only focus on the practicalities. The mother’s approach ignores, what appears to be, the remaining issue which stands in the way of X achieving an avoidance of anxiety symptoms. Despite the mother’s suggestion, there is nothing contradictory in the father’s evidence that X’s maturity and resilience having improved, yet X struggles with undesirable behaviour at changeover.
10. If the Court is not satisfied that all of the matters raised by the father warrant a re-opening of the proceedings, the Court would be entitled to limit the issues to be further considered.
Outline of Principle
I note the following from four of the not insignificant number of Full Court decisions that deal with the principle first articulated in Rice & Asplund.[1]
[1] Rice & Asplund (1979) FLC ¶90-725.
Firstly, and simply by way of reference only, I note Warnick J’s important decision in SPS & PLS, notably at [48], [49], [56], [58], [61], [65], [74], [78], [81], [82], [83] and [86].[2] Although the paragraphs to which I have referred should be taken to be primary points of reference, I will not and need not set them out from his Honour’s judgment, save for his Honour’s comments at [48] and [81], which are as follows:[3]
[2] SPS & PLS (2008) 217 FLR 164; (2008) FLC ¶93–363; (2009) 39 Fam LR 295. Warnick J was sitting as the Full Court.
[3] Warnick J’s comments in SPS & PLS were cited with approval by the Full Court (Bryant CJ, Finn & Cronin JJ) in Marsden v Winch (2010) 42 Fam LR 1 at [46] and [47].
[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.
[81] …in 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.
In 2008, the Full Court (Warnick, Boland & Murphy JJ) in Miller v Harrington discussed further the principle and application of Rice & Asplund.[4] Among other things, the Court there said, at [72] (emphasis added):
It may be, however, that neither the expressions “summary dismissal” or “striking out” is the best term to describe the procedure when, in a parenting case, the rule in Rice and Asplund is considered at a preliminary stage. This is because, as we seek to emphasise, at whatever stage the rule in Rice and Asplund is applied, the court is bound to take into account best interests considerations and also because specific requirements, including legislative requirements, apply.
[4] Miller v Harrington (2008) 220 FLR 300; (2009) 39 Fam LR 654.
Then at [80] and then at [82] - [84], the Full Court noted:
[80] In our view, that passage [at [81] in SPS & PLS] need not be taken as saying that the only way in which the rule in Rice and Asplund can be applied at a preliminary stage is on the basis that the case of the applicant for parenting orders is taken at its highest.
[82] … the qualitative question of whether a change that has occurred is or is not sufficiently significant to justify a full further hearing of a parenting issue may be one much more difficult to answer in a preliminary hearing involving resolution of only some disputed facts.
[83] This observation may be behind the approach that either the case of the applicant for parenting orders is, at a preliminary stage, taken at its highest, or the hearing embarked upon is an enquiry into all matters relating to the best interests of the child or children.
[84] On the other hand, there is authority to suggest that these are not the only legitimate procedures….
In Marsden v Winch, the Full Court observed, at [50]:[5]
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.
[5] Marsden v Winch (2010) 42 Fam LR 1.
Then in 2014, a Full Court comprising Strickland, Murphy and Austin JJ delivered judgment in Poisat & Poisat.[6] At [43], their Honours commented on the rule in Rice & Asplund:
If applied on a preliminary basis, the issue is whether the circumstances as disclosed by the evidence reveal a change of such significance that the best interests of the child require a revisiting of earlier orders.
[6] Poisat & Poisat (2014) FLC 93-597.
Most recently, in Carriel v Lendrum, a differently constituted Full Court (Finn, Strickland and Kent JJ) commented further, and at a little length, on the principle or rule in Rice & Asplund.[7] At [46], their Honours said (emphasis added):
… we are far from persuaded that the hurdles that have to be overcome to found a successful challenge on the basis of the weight afforded to the evidence have been scaled. It has consistently been held that where no error of fact or law is present, disagreement only on matters of weight cannot alone justify appellate interference….
[7] Carriel v Lendrum (2015) 53 Fam LR 157.
After noting, at [51], comments from Miller v Harrington (at [72]), and then, at [53], further comments from Poisat & Poisat (at [42]), at [56], the Full Court said:
This analysis leads us to the view that where the principle in Rice & Asplund is being considered, it will not be appropriate or necessary to discretely address many of the factors in section 60CC of the Act in determining where the best interests of the child might lie.
Then at [57], their Honours stated (emphasis added):
In a case where the principle in Rice arises for consideration, there are two circumstances which are central to the decision. First, there will already exist a parenting order and, axiomatically, the terms of that order will reflect the best interests of the child or children at the time of its making. Second, the fact that an order has been made reflects that disputation between parties to a parenting dispute, such dispute being inherently contrary to the best interests of the child whilst it exists, has been brought to an end by a curial order. Those twin circumstances dictate the conclusion that it cannot logically be in the best interests of the child to embark upon further litigation enquiring as to the child’s best interests unless it is first demonstrated that a sufficient change in circumstances has occurred since the parenting order was made.
Commenting on the decision then under appeal, the Court said, at [58] (emphasis added):
Thus, it is entirely understandable, and in our view, not erroneous, for his Honour to address the issue of “best interests” by reference to whether it is in the interests of the child for there to be the further litigation proposed by the mother. Indeed, we note that this was how the issue was framed in the mother’s outline of argument presented to his Honour at the commencement of the hearing. She said this (at paragraph 3):
The central question for consideration by the Court was encapsulated by Warnick J in the following terms (para 81, at page 310):
“… Though sometimes unstated, the underlying conclusion will or ought to 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.”
Most recently, in Walter & Walter, the Full Court (May, Ainslie-Wallace & Murphy JJ) dealt with an appeal in relation to a so-called Rice & Asplund matter.[8] In the course of the disposition of that unsuccessful appeal, by reference to most of the cases to which I have already referred in these reasons, I note briefly the following.
[8] Walter & Walter [2016] FamCAFC 56.
First, at [51] – [57], Ainslie-Wallace J said (May J agreed with her Honour’s reason as well as those of Murphy J):
[51] Where the question of whether a sufficient change in circumstances has occurred is to be determined as a matter preliminary to the hearing of the application, it is accepted that the applicant’s evidence should be taken at its highest.
[52] It was argued for the mother that his Honour erred in finding that she had failed to demonstrate a sufficient change in circumstances to justify re-opening the parenting proceedings.
[53] His Honour concluded at [100] that the facts did not establish “a new and vital change in the circumstances”, and found that it was “obvious” that Amber had been anxious for some time and that anxiety had from time to time manifested itself in her refusing to go to school. He went on to offer what he considered to be the reasons for this, including that she had recently commenced high school. He thus found at [111] that the mother’s evidence did not establish a material change of circumstances in the necessary sense.
[54] The bar to appellate intervention where the challenge is to a judge’s fact finding is set high. See Edwards v Noble (1971) 125 CLR 296.
[55] In order to succeed in challenging his Honour’s finding that there had been no change in circumstances, it is necessary to demonstrate that the finding was not open to his Honour on the evidence before him.
[56] Thus it was argued that, had his Honour indeed taken the mother’s evidence at its highest it was not open to him to find that there had been no material change in circumstances. It was further argued that both his Honour’s conclusion that the child had always been anxious, and that her present refusal to attend school was a manifestation of a pre-existing condition and was probably due to her attending a new school, were findings unsupported by the evidence.
[57] His Honour’s finding that the child’s present anxiety and refusal to attend school was unsupported by the evidence. However, it was a conclusion reasonably open to his Honour given the accepted increase in her refusing to attend school and anxiety generally with the beginning of a new school regime. It could not be said that the conclusion was not open to his Honour. His Honour’s findings clearly accept the parties’ position that Amber’s anxiety and school refusal had escalated. The issue for his Honour was whether these circumstances led to the conclusion that there had been a material change in circumstances. His Honour found that they did not. That was a determination open to him and I find no error in his conclusion. This challenge is not made out.
In his consideration of the challenge regarding the trial Court’s assessment of whether there had been a material change in circumstances, Murphy J said, at [83] – [86]:
[83] In any event, while the arguments in support of the contention are framed as challenges to “principles” relating to the rule, they are, in essence, challenges to the weight which his Honour attached to aspects of the evidence.
[84] In my view, the findings made by his Honour were entirely open to him on the evidence and it was entirely open to his Honour to include the matters to which his Honour made reference in reaching a determination that a material change in circumstances was not established.
[85] In that respect, it has been held recently that:
… Plainly a circumstance can only constitute a relevant 'change' if it is a circumstance which was outside or beyond the contemplation or consideration of the parties and the court at the time the original parenting orders were made. Put another way, if the current circumstances were within the contemplation of the parties and were considered by the court at the time the original parenting orders were made, there is no basis upon which they can be said to constitute a change which would justify the prospect of continuing litigation with respect to parenting arrangements, given the adverse effect which uncertainty and unpredictability with respect to parenting arrangements can be assumed to have upon the interests of the child concerned…[9]
[9] CDW v LVE [2015] WASCA 247, at [88] per Martin CJ.
[86] In my view his Honour made no error as asserted on behalf of the mother.
Then, after referring at a little length to Warnick J’s decision in SPS & PLS, at [110] – [116], Murphy J continued (internal citations omitted; emphasis added):
[110] The exercise of those discretions will depend, like all discretionary decisions, on a multiplicity of factors. However, the decisions will include a consideration of the nature and cogency of the evidence as to material change and the nature and extent of the orders sought to be changed. The decisions will also ordinarily involve a consideration of the notorious fact – accepted as such both by authority and by Mr North in his arguments – that continued litigation and the re-agitation of contested issues about children has the potential to cause significant harm to them.
[111] In some cases, those factors, and perhaps others, will persuade a court that further evidence is required before reaching a decision on the Rice & Asplund question. The obtaining of a Family Report in an appropriate case might be an example of such further evidence, although it once again needs to be pointed out that Family Reports do not decide cases; courts do.
[112] However, the court’s decision as to the evidence necessary to decide the application of “the rule in Rice & Asplund” as a preliminary matter also involves the exercise of discretion. The exercise of that discretion will also have as its central question whether it is “more powerfully in the child[ren’s] welfare” to permit the obtaining of the further evidence – and what might be involved for the children in doing so – than to determine the application of the rule as a preliminary matter without that evidence. That can be seen to have particular importance when the evidence sought is a Family Report or the interventions of other experts that involve the participation of the children.
[113] It should also be pointed out (as it was by this Court in Miller & Harrington), that the relevant discretions must now be exercised within the mandatory principles and other provisions contained within Division 12A of the Act. In that respect two of the mandatory principles which must be applied by a court by reference to s 69ZN of the Act bear quotation:
(3) 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.
(4) The second principle is that the court is to actively direct, control and manage the conduct of the proceedings.
[114] In my view, contrary to the submissions made by Mr North, well settled authority is entirely consistent with his Honour having the power to apply “the rule in Rice & Asplund” as a preliminary matter “… even where the evidence demonstrates a material change since the previous order”.
[115] Secondly, again contrary to Mr North’s submissions, it is in my view not correct to characterise his Honour’s actions or decisions as a failure or refusal to exercise jurisdiction in proceedings for parenting orders properly invoked by the mother. The refusal by his Honour to contemplate the obtaining of a Family Report (or, perhaps, other evidence) so as to inform the rule at a preliminary stage was not a failure of judicial process but a discretionary decision performed within a mandatory statutory context and arrived at by reference to the children’s best interests for reasons which his Honour gave.
[116] It is not established that his Honour erred in law; that he failed to take account of relevant considerations; that he took account of irrelevant considerations or committed any other discretionary error. No error in the exercise of his Honour’s discretion is pleaded nor can any be seen in his Honour’s reasons.
Consideration and disposition
In the light of the principles just outlined, for the purposes of the current Application, it is sufficient that I note the following matters, by reference primarily to the Applicant’s Affidavit, filed 7th November 2019.
There are approximately 8 issues raised by the Father. I will note them summarily and comment on their efficacy for the purposes of satisfying – or not – the relevant test of whether there has been a material change in circumstances, as outlined in the authorities noted earlier in these reasons.
The first issue relates to “usual time” (Orders 3c and 4vi). Here, the Father’s concern relates to the configuration of the “time with” arrangements under the Orders, as opposed to what has actually happened between the parties over the years since the Orders were made. The Father contended that the Mother unilaterally changed the configuration of the time that X spent with his Father. The amount of time was basically the same; the change related primarily to the configuration of it.
For my part, given that no Application was made by the Father about this changed configuration since 2015, I doubt the utility of dealing with this aspect now, in 2020. In my view, such an issue does not come within the principles from Rice & Asplund and subsequent cases in circumstances where the Father has effectively tolerated the changes for a number of years about which he now complains. A “re-configuration” of time-with arrangements should be negotiated and resolved as I have indicated – through counselling, mediation, arbitration. Such basal matters should not consume the time and resources of the Court.
The second issue relates to “holidays” (Orders 7 & 8). The Father contended (par.16) that these Orders have been a source of confusion between the parents since they were made. If that be so, why wait 4 years or so before doing something about them? The Father now seeks an increase in X’s holiday time with him. In my view, this is – again – a change primarily in the Father’s preferences and his perception of what is now in X’s best interests. Surely the parents must have taken advice prior to and at the time of signing the consent Orders regarding any developmental and logistical issues that may, or were likely to, arise in the future. A change in parental preference does not, without more, constitute a relevant change in circumstances.
The third issue relates to “school excursions.” These matters are addressed, in a manner of speaking, at Orders 14 and 17. Again, these are matters of logistics. That said, in the current circumstances of a pandemic which is likely to continue for some time, such matters are essentially moot. The comments made earlier apply here. Thus, this issue does not relevantly meet the threshold of a material change in circumstances, and it should more appropriately be dealt with via counselling, mediation and arbitration.
The fourth issue concerns “international travel and passports” (Order 14). In my view, again this is a matter that (a) is already addressed regarding international travel (whenever such resumes), and (b) must necessarily imply that a passport will issue to X in due course. Indeed, the Mother says in her submissions that there is no issue about this aspect of the Orders. For more abundant caution, and to prevent any future futile but costly contest, in my view a specific, a machinery Order in this regard should be made. It should simply provide that either parent shall be at liberty to obtain a passport (or any renewal of it), and the other parent shall sign any and all forms in relation to such Application. If the other parent does not so sign within 21 days, the Registrar of the Court may do so under s.106A of the Act. Any other travel issues, like all other parenting issues, shall be determined and resolved by mediation and arbitration.
The fifth issue concerns X’s “extracurricular activities.” Unfortunately, most sections of the Father’s Affidavit unhelpfully begin with a complaint about the Mother’s attitude or conduct. Putting that to one side, the complaint here is that X is now playing (happily it would seem) a range of sports. According to the Father there is now (or is likely to be) a conflict or clash in the timing of these sporting pursuits. Worse still, according to the Father, there is a regular lack of information provided to him about these activities. For the same reasons regarding “the passport”, I am prepared to make a machinery Order for the provision of information regarding X’s sporting endeavours. Such an Order shall simply provide that, within 14 days of the child being registered (or similar) for any sport or non-school activity, both parents are to keep the other parent informed of any extra-curricular activities of the child. Any other similar matters are to be resolved by the process I have earlier indicated – via mediation and arbitration.
As a general observation, the Court’s stressed resources should not be purloined to make good quite basic deficits in Orders made by consent a number of years ago. Presumably they were entered into on the basis of advice provided to the parties. Did no one – parties, lawyers and others – consider that X would grow up and very likely take up one or more sports or other interests? On one view, it seems not.
The sixth issue relates to “changeovers” (Order 12). Again, by way of observation, there has been no Application since 2015 until the present. On its face, this fact would significantly militate against the issue constituting a “material (or significant) change in circumstances.” Moreover, the issues the Father raised in his Affidavit (pars.59 – 79) arise out of matters of logistics and/or contests between the parents. Surprisingly, the Father proposes that changeovers take place at the residence of each parent! One might reasonably have assumed that changeover at school (when it is open), and/or to have a third party do the changeovers (both very standard, preventative measures) might have been considered best.
Again, this does not come readily or easily within any “material change in circumstances.” It should be mediated or arbitrated to any future resolution.
A seventh issue raised by the Father relates to the Mother’s “mental health.” He seeks no Order in relation to it, and simply complains that he knows nothing about it and any possible flow-on effect it might have for the care of X. I can do nothing about this “issue.” It is not properly before the Court.
The eighth issue relates to an “increase in the Father’s time” (Order 23). An increase in time is addressed through the process set out in Order 23 of the existing Orders. That process is to be adhered to. It is a change in the Father’s “preference” for time with his son. Comments already made apply here about parents previously agreeing and presumably taking advice before signing consent Orders. Presumably, they knew their son was going to grow up and that there would need to be some flexibility as this occurred. It is not for the Court to make up for any lack of insight in any consent Orders about the growth of a child. “Omissions” in Orders made by consent some years ago do not, without more, constitute a “material change in circumstances.”
The last part of the Father’s Affidavit (pars.96 – 113) outlined the Father’s good relationship with his son, the various activities in which they engage and X’s favourite vegetables. As engaging as this information is, I do not see how it is relevant to the issues before the Court. It is unclear why this material was included in the Application, and why it was necessary, after 4 or 5 years, again to embroil X in litigation.
Other than the two areas where I have indicated that I would be prepared to make minor amendments to the May 2015 Orders (X’s passport and provision of information regarding X’s sports and the like), otherwise I accept and adopt the Mother’s submissions. Save for the two proposed/possible amendments by consent, the matters raised in the Application do not readily or conformably satisfy the requisite standard, especially on the tests as articulated in SPS & PLS, and in Carriel v Lendrum, to warrant it proceeding. Subject to making any other Orders by consent, the Application, filed 7th November 2019, must be dismissed. The Father should pay the Mother’s costs, either as agreed or taxed.
I certify that the preceding forty two (42) paragraphs are a true copy of the reasons for judgment of Judge WJ Neville
Date: 9 April 2020
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Costs
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Consent
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Procedural Fairness
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Remedies
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