Defrey & Radnor (No 2)
[2021] FamCAFC 139
•5 August 2021
FAMILY COURT OF AUSTRALIA
Defrey & Radnor (No. 2) [2021] FamCAFC 139
Appeal from: Defrey & Radnor [2020] FCCA 713 Appeal number(s): EAA 54 of 2020 File number(s): SYC 3980 of 2012 Judgment of: AINSLIE-WALLACE, WATTS & TREE JJ Date of judgment: 5 August 2021 Catchwords: FAMILY LAW – APPEAL – RE-EXERCISE OF DISCRETION – Where the appellant father was partly successful in the appeal – Where the parties agree that this Court should re-exercise the discretion – Where the father argues that there is a sufficient change of circumstances to vary final orders – The Rice and Asplund test applied – Where there is no new change of circumstance – Father’s Initiating Application dismissed. Legislation: Family Law Act 1975 (Cth) s 65DAA Cases cited: Defrey & Radnor [2021] FamCAFC 67
Rice and Asplund (1979) FLC 90-725; [1978] FamCA 84
Division: Appeal Division Number of paragraphs: 88 Date of last submissions: 1 July 2021 Date of hearing: In Chambers Place: Sydney Counsel for the Appellant: Mr Weightman Solicitor for the Appellant: Conditsis Lawyers Counsel for the Respondent: Dr Smith Solicitor for the Respondent: Lander & Rogers ORDERS
EAA 54 of 2020
SYC 3980 of 2012BETWEEN: MR DEFREY
Appellant
AND: MS RADNOR
Respondent
ORDER MADE BY:
AINSLIE-WALLACE, WATTS & TREE JJ
DATE OF ORDER:
5 AUGUST 2021
THE COURT ORDERS THAT:
1.The father’s Initiating Application filed 7 November 2019 be dismissed.
2.Orders 1–3 of the orders made 16 February 2021 in respect of filing submissions as to costs shall commence from the date of these orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Defrey & Radnor (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AINSLIE-WALLACE, WATTS & TREE JJ:
INTRODUCTION
On 12 May 2021 this Court allowed an appeal in part from orders made by a Judge of the Federal Circuit Court of Australia on 9 April 2020 and provided reasons (Defrey & Radnor [2021] FamCAFC 67) (“the May 2021 reasons”). The question as to whether the respondent mother’s application, to dismiss what remains of the appellant father’s Initiating Application filed 7 November 2019, would be heard by this Court or remitted for rehearing at first instance was reserved (Order 4 made 12 May 2021).
The focus of the litigation is the one child from the parties’ relationship, X (“the child”) who is now 10 years old.
In 2015, final parenting orders were made by consent at the commencement of the final hearing at which both parties were represented by counsel (“the 2015 orders”).
What remains of the father’s application of 7 November 2019, which seeks to vary the 2015 orders, can be summarised as follows:
(a)the father sought that the child spend five nights a fortnight (one night more than the 2015 orders) (Order 3) and in the further alternative, the same amount of time as the 2015 orders but reconfigured so that it was in the one block from after school Thursday to before school Monday each alternate weekend (Order 4);
(b)a minor tweak to the commencement of school holiday time in terms 1, 2 and 3 so that what happened in even and odd numbered years was defined (rather than what was provided in the 2015 orders, namely that term holidays start in sync with the sequence in which alternate weekend time was occurring during school term) and defining handover time (Order 5);
(c)a consolidation of term 4 school holiday time so that it was not taken in alternate weeks but rather, that the child spend one block of time with each parent during those school holidays (Order 6);
(d)reworking the orders for Father’s Day, Mother’s Day, the child’s birthday and Easter (Order 7);
(e)orders relating to information about and attendance at, extra-curricular activities (Orders 8 and 9);
(f)orders in relation to international travel with the child’s school (Orders 10 and 11);
(g)doing away with the provision for changeovers at shopping centres and having it occur at the homes of each parent, depending on whom the child was with (Order 12);
(h)amplifying the international travel order (Orders 13–15);
(i)orders to obtain Australian passports and for the provision of passports to a parent who is travelling internationally with the child (Orders 16–19); and
(j)further defining arrangements in relation to telephone communication (Orders 28–29).
REMIT OR RE-EXERCISE?
At the time of the hearing of the substantive appeal in February 2021, the mother’s position, in the event the appeal was successful or partly successful, was that this Court re-exercise the primary judge’s discretion. The father on the other hand, at that time, sought the matter be remitted for re-hearing at first instance. The father has reconsidered his position and now, also seeks that this Court re-exercise the primary judge’s discretion and deal with the mother’s application to dismiss the father’s Initiating Application filed 7 November 2019 (the father’s supplementary submissions filed 3 June 2021, paragraph 7).
The mother wishes the 2015 orders to continue and argues that the father has failed to satisfy the test established by Rice and Asplund (1979) FLC 90-725 (“Rice & Asplund”) and the cases which have followed it.
The primary judge had dismissed the father’s application on the basis that he had not satisfied the Rice & Asplund test but, for reasons which we have explained in the May 2021 reasons, part of that order needed to be set aside as a result of extraneous matters which the primary judge had taken into account.
The father has changed his position and now the parties jointly request us to hear the mother’s application to dismiss the father’s application, inviting us to do so on the written evidence and submissions filed since the May 2021 reasons. We accept that course is appropriate.
DOCUMENTS CONSIDERED
The initial hearing before the primary judge took place on the papers. The parties rely upon the applications, affidavits and written submissions before the primary judge.
In addition, on 12 May 2021, relevant to the issue of whether this Court would re-exercise, both parties were given the opportunity to file updating affidavits and written submissions with the father to file first, the mother to respond and the father to reply. As a consequence, there are two additional affidavits from the father; one additional affidavit by the mother; two additional sets of submissions by the father and one additional set of submissions by the mother.
THE CURRENT ORDERS AND THE FATHER’S APPLICATION
The 2015 orders currently provide that the parties have equal shared parental responsibility and the child live with the mother. There is no suggestion that those orders would change.
The 2015 orders also provided that:
(a)the child spend increasing time with the father over three stages so that by October 2016 he was spending four nights a fortnight with the father; three consecutive nights in one week and one night in the alternate week, during the school term. There was a provision that the child could see the father at such other times as may be agreed in writing between the parties but no subsequent agreement has been reached;
(b)the child spend time with the father during school holidays on an increasing basis so that by June 2018 he was spending seven consecutive nights with the father during the term 1, 2 and 3 school holidays and one half of the Christmas school holidays on a week about basis;
(c)time on special days and Easter;
(d)changeovers at school, if applicable, and if not, at one of two shopping centres depending upon whom the child was with;
(e)orders that the parties notify each other about particular matters relating to the child;
(f)provision for overseas travel;
(g)facilitating and encouraging the child’s telephone calls to the other parent; and
(h)other ancillary and consequential orders.
Whilst we have earlier set out what remains of the father’s application of 7 November 2019, before us the father concentrated on four circumstances where he asserts there is justification for embarking upon a new full hearing of the matter. They are:
(a)an increase in time the child spends with him during school term or at least a reconfiguration of it;
(b)reconfiguration of the order in relation to school holidays/Easter in term 1 and a reconfiguration of the school holiday order for term 4;
(c)different orders with respect to changeover (including increasing the child’s time with the father to facilitate changeovers being at school);
(d)overseas travel for school excursions, international travel more generally and orders with respect to the child’s passport.
LAW IN RELATION TO RICE & ASPLUND
It is convenient to repeat what we said at [16]–[21] of the May 2021 reasons relating to the test relevant to the mother’s application:
16The evidence of the father had to be accepted at its highest, and as Warnick J said in SPS and PLS (2008) FLC 93-363 (“SPS and PLS”) at [81] and [84], the essential question to be asked is, assuming the evidence of the father is accepted, are the “new events” sufficient to provoke a new enquiry (see also Miller & Harrington (2008) FLC 93-383 at [105], noting that an alternative formulation of the question has been propounded by the Full Court in Marsden v Winch (2009) 42 Fam LR 1 at [58] with the emphasis on the establishment of a prima facie case of change of circumstances).
17As indicated, the father submits that the changes to the orders he proposes are not radical and consequently the changes which he relies upon to justify a reopening of the litigation need not be substantial.
18In SPS and PLS, Warnick J said at [48(v)] and [82]–[83]:
48.… The application of the rule is closely connected with the nature of, and degree of, change sought to the earlier order.
…
82.This proposition lay behind what Evatt CJ said in In the Marriage of 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.
Different issues arise in relation to reinstatement of access. The issues involved in reconsidering access relate much more directly to the children and their needs, their own attitudes and wishes. Time may play a part in this. This Court would not wish to subject children to the repeated intervention of court proceedings to the extent that they have to be reassessed every few months, or every year, by court counsellors to see if they maintain the same attitudes. That certainly could not be encouraged, but there may come a time when there are such changes in the attitudes of the parties, or such evidence relating to the children and their needs and attitudes towards their parents, that it would be reasonable to reconsider access.
83.Accordingly, the rule may not impede hearing an application for a small alteration, which may require only a short and narrow enquiry, but may properly prevent a hearing in respect of more far-reaching changes.
19In our view, the Rice & Asplund test applies to all applications which seek to revisit parenting orders. Sometimes the test will be easily satisfied even though the issues to reconsider are major ones and sometimes the test will be easily satisfied even though the issues to be revisited are relatively minor in character. In both situations, the overarching test is to be applied, namely, (having regard to the best interests of the child) new events or changed circumstances have to be sufficient to provoke a new inquiry.
20It is also useful when considering, as a preliminary matter, what issues a parent might be permitted to re-litigate, to remember that under s 69ZQ(1)(a) of the Family Law Act 1975 (Cth) (“the Act”), there is a mandatory requirement to decide which of these issues in the proceedings require full investigation and hearing.
21The rule in Rice & Asplund involves the exercise of discretion and not merely a process of making factual findings. That is because the “rule” is a manifestation of the best interests principle. All s 60CC(2) and (3) matters, so far as they are relevant, must be considered, to the extent that they can be, based on the material before the court. The rule focuses particularly on s 60CC(3)(l) and the preference to make final orders in parenting matters that are least likely to lead to the institution of further proceedings in relation to the child. Axiomatically that is because unless other considerations are more weighty, it is not in the best interests of a child for that child to be the subject of repeated litigation between his/her parents. There is a focus in an application of this kind upon the change(s) in circumstances that outweigh the negative impact of reopening litigation. Although when considering the preliminary issue, if cross-examination is not permitted, then the evidence of the father is to be taken at its highest, and it is not only the father’s evidence that is considered.
DISCUSSION
Initial general observations
Relevant to best interest considerations, are a number of themes which emerge from the written evidence:
(a)the father has from time to time requested that the mother depart from the 2015 orders in various ways and has in his application now sought an extensive variety of amendments to the 2015 orders. The mother has become increasingly resistant to any formal or permanent change to the orders, arguing that the current orders provide an adequate and appropriate framework to regulate the parenting arrangements for the child, in the child’s best interests;
(b)the parties have by and large, complied with the orders over the last six years;
(c)from time to time the parties have got locked into protracted arguments and conflict in respect of the meaning and operation of certain orders;
(d)despite the conflict between the parents, they have agreed on occasions to amend the operation of orders when they have mutually recognised an arrangement to be in the child’s best interests. There are examples of the parties negotiating and reaching agreement in respect of parenting arrangements of the child:
(i)the parties were able to reach agreement as to term 1 holidays and Easter in 2019, 2020 and 2021;
(ii)the parties were able to reach agreement as to Christmas Day each year including changeovers;
(iii)the parties have been able to reach agreement in respect of obtaining a passport for the child and that the mother will hold that passport;
(iv)the parties have agreed to enrol the child in football;
(v)the parties have agreed to attend sporting matches for the child notwithstanding with whom the child is spending time with that weekend.
(e)that flexibility seems to have been more strained during the course of this protracted litigation; and
(f)the child is suffering from current difficulties which have caused the parties to agree to refer the child to a paediatric psychiatrist. This brings into sharp focus the question of the benefit to the child of the continuing litigation which inevitably will draw the child into interviews and observations by a new forensic expert.
Term time (Orders 3-4)
The current final orders provide for the child to spend time with the father on a fortnightly cycle of three nights in week 1 and one night in week 2. These arrangements had incrementally increased under the 2015 orders until the current four nights a fortnight arrangement commenced operation in October 2016.
The father initially sought an equal time arrangement, but at this time he has abandoned that position. He now seeks an increase in time to five nights a fortnight (four consecutive nights in week 1 and one night in week 2) or alternatively, moving the one night in week 2 so that the child spends four nights a week with his father in week 1 and no time in week 2.
The history of the child’s time with the father under the 2015 orders has been:
(a)As indicated, the 2015 orders provided that the child spend time with the father for three nights each alternate weekend and overnight on the Wednesday in the other week after that weekend.
(b)However, after the orders were made, the child went to the father on the wrong Wednesday night (the one immediately before his weekend time).
(c)By January 2016, the father had acquiesced to this arrangement, notwithstanding it was not what was required by the 2015 orders.
(d)On 29 April 2019, the father wrote a five page letter to the mother’s solicitors generally complaining about matters that he believed were problematic in respect of the mother’s parenting and amongst other things, complained:
3.2For a considerable period of time, we have had an unusual arrangement which is contrary to the Orders of the Court. The Orders of the Court contemplate that I would have [the child] on a Wednesday on the “off” week. Yet, [the mother] has insisted that the Orders are to be interpreted such that [the child] comes to me on the Wednesday evening of the week where I have him for the weekend – the “on week” – returns to school and [the mother’s] home for the Thursday, and then has to travel again back to my house on the Friday – all in the same week. This has never made sense, it is unreasonable and not in [the child’s] best interest and it is contrary to the Orders of the Court. All points previously raised by my lawyers.
(Annexure “[A]2-08” to the father’s affidavit filed 4 February 2020) (As per the original) (Emphasis in original)
(e)The mother in response changed the arrangements for the child’s mid-week time so that it complied with the 2015 orders. Her lawyers responded on 11 June 2019 in the following terms:
5.Our client agrees that there has been a misunderstanding as to the interpretation of the Court orders and that the usual arrangement as to the orders should now apply. This means that you spend time with [the child] on the off week on the Wednesday evening, commencing 31 July 2019.
(Annexure “[A]2-08” to the father’s affidavit filed 4 February 2020)
(f)The father at paragraph 53(a) of his affidavit filed 4 February 2020 deposes:
… Whilst it is true that I raised [the mother’s] incorrect interpretation of the Orders some 4.5 years earlier, I believe that comment should not be read in isolation and taken out of context, particularly when I had just proposed in that same letter that the usual Wednesday remain.
Although it is true that the father proposed the existing Wednesday night remain, it was in the context of the child spending an additional night with him.
The father now argues that the mother’s change in mid-2019 of a four and a half year arrangement back to what the 2015 orders required is a sufficient change to reopen the question of the time the child should spend with him during school term.
The father complains that although the child still had an identical amount of time with him:
… the change to [the child’s] routine is a significant one because [the child] has become accustom to spending a large amount of time with me every second week over the past 4 and a half years, as opposed to time being spread out over various weeks.
(Father’s affidavit filed 7 November 2019, paragraph 13)
At paragraph 14 of his November 2019 affidavit, the father expresses the belief that what he proposes would be in the child’s best interests because it would reduce the number of changeovers and a risk of the child being exposed to further “family violence perpetrated by the maternal family”, and would reduce tensions between the mother and the father. The father also believes it would clarify and simplify the form of the final orders.
The father has not identified any significant consequence for the child by reverting to strict compliance with the 2015 orders. In our view the father cannot rely upon a status quo that had been created by acquiescence in circumstances where after four and a half years he complained about that status quo not being in compliance with the 2015 orders. The current arrangements are consistent with the 2015 orders, have now been in place for over two years, and any argument based upon what the child had previously been “accustomed to” is of no great weight.
The father also seeks to rely upon changes associated with the development of the child.
Not all of the evidence that was before the Court in 2015 was provided to us. The father relies upon a statement in his affidavit filed 4 February 2020 that:
1.Following our separation and prior to the Final Orders, [the mother] reported that [the child] was exhibiting regressive and aggressive behaviour when [the child] was returned to [the mother’s] care…
The father asserts that changes in the child’s behaviour from that described in the family report dated 17 February 2015 were unexpected changes. In his affidavit filed 4 February 2020, the father relies upon observations made by the family consultant in 2015 (specifically, at paragraphs 6, 17, 18, 27, 28, 30–34 and 36–42 of the family report dated 17 February 2015). The child was three and a half years of age at the time of the preparation of this family report. At paragraph 6 of his affidavit filed 4 February 2020, the father asserts that the child’s “resilience has also grown beyond expectation, particularly having regard to the behavioural issues exhibited at the time of the [o]rders”.
We do not accept that the child’s emotional development from the age of three to the age of 10 is “unexpected”. The 2015 orders were made with an eye to the medium term. It was clear that an increase in the child’s age and improvement in the relationship with the father was contemplated for by the final orders. The orders expressly provide for a graduated increase in the child’s time both during the school terms and during school holidays, and they were predicated on the child getting older and being able to cope with being away from the mother four nights per fortnight and half of the school holidays by June 2018.
The father also points to the development of the child’s meaningful relationship with him. Again, we are unable to discern, given the structure of the 2015 orders, how that is a change which could be said to have been unanticipated at the time the 2015 orders were made.
We conclude that the father has not demonstrated a prima facie change which would warrant a conclusion that it was in the child’s best interests to embark upon a new hearing in respect of the issue.
Redefining the cycle of weeks in school holidays (Order 5)
The father made no submissions about Order 5 as sought by him which would move us to conclude that the test in Rice & Asplund had been satisfied.
Term 1 school holidays and the Easter period (Orders 5 and 7)
From June 2018, Order 7 of the 2015 orders makes the following provision for time during school holidays:
7.From June 2018 that [the child’s] time with the Father be suspended during … Gazetted school holiday periods and [the child] is to spend time with the father:
(a)In the school term holiday periods at the ends of Terms 1, 2 and 3 each year for 7 consecutive nights as agreed, and failing agreement, from 5.30pm on the Friday the [f]ather would have otherwise have spent time with the child in accordance with Order 3 above until 6.30pm the following Friday[.]
Order 8 of the 2015 orders is in the following terms:
From 2016 and notwithstanding any other Order, [the child] is to spend time with the father at Easter in even numbered years from 8.30am Good Friday until 5.00pm Easter Monday and in odd numbered years, [the child] is to spend Easter with the mother from 8.30am Good Friday until 5.00pm Easter Monday.
(Emphasis added)
The father asserts that in the term 1 school holidays, Order 7(a) is inconsistent with Order 8. We are unable to understand why on the face of the current orders, there is a conflict. Order 8 on its face is expressed to be “notwithstanding any other order” and consequently takes precedent over anything in Order 7.
Order 8 would have the effect that depending upon whether the Easter period fell within the school holidays and on which weekend it fell, that one parent might have more time with the child than the other during term 1 school holidays. There is nothing ambiguous about the form of Order 8.
It is clear that the parties have spent considerable efforts attempting to negotiate what the order means.
Nonetheless, in the only three periods where the current Orders 7 and 8 operated together, the parties have been able to reach an agreement. In 2019 the child spent time with the father from Easter Monday, returning the child to school the following Monday for the start of term 2 (father’s affidavit filed 2 June 2021, paragraphs 4–7; and mother’s affidavit filed 23 June 2021, paragraph 6). Similarly, in 2020, the parties complied strictly with the orders, with the child spending time with the father for the Easter weekend and then for seven days from the following Friday (father’s affidavit filed 2 June 2021, paragraphs 8–10; and mother’s affidavit filed 23 June 2021, paragraph 7). In this circumstance, the child spent more time with the father than the mother during the term 1 school holidays. Finally, in 2021 the parties agreed (without the use of solicitors) that the child spend seven consecutive nights with each parent, ignoring the Easter weekend (mother’s affidavit filed 23 June 2021, paragraphs 8–9). The father does not comment upon what seems to have been a concession made by the mother as she was entitled to more time than that with the child during the 2021 term school holidays under the 2015 orders.
In any event, as pointed out by the mother in written submissions filed 23 June 2021, the current Initiating Application which has been the subject of this long running litigation, does nothing to address the issue that the father asserts is difficult but rather creates irreconcilable conflict between the term holiday orders and the orders for Easter. At paragraph 5 of the father’s proposed final orders, he seeks term school holiday time as follows:
5.That, notwithstanding any other Order herein, the Child will spend time with the parties during the Terms 1, 2 and 3 school holiday periods as follows…
(Emphasis added)
At paragraph 7 of the father’s application for final orders, he seeks orders with respect to “special occasions" which includes Easter at paragraphs 7.1 to 7.6. Paragraph 7 of the father’s application commences:
That notwithstanding any other Order herein the Child will spend time with the parties on special occasions as follows:
(Emphasis added)
Whilst the father complains that there is inconsistency in the current orders, which there is not, the orders sought by the father, purporting to cure that inconsistency, clearly create an internal inconsistency of their own. Whilst in submissions in reply filed 1 July 2021 that difficulty is acknowledged by the father and categorised as “one capable of being easily rectified”, it is not clear as to how the father would intend to amend his application, nor has he sought to do so.
This difficulty highlights a more general problem that is associated with complex and prescriptive orders. Often the more one attempts to define arrangements between parents who are in high conflict, the more chance there is for a slip and for more new points of disagreement to potentially emerge.
The current provision for term holidays under the 2015 orders, which have operated from June 2018, have proven to be a successful general framework. The father has not demonstrated a prima facie change requiring the reconsideration of the 2015 orders nor is it in the child’s best interests for there to be new litigation in relation to the order for term 1 school holidays.
Term 4 holidays and Christmas (Order 6)
Currently, Order 7(b) provides that the child be with his parents on a week about basis with the father to spend the first week (seven consecutive nights) of the school holiday period with the child and each alternate week thereafter in odd numbered years, and the father to spend the second week of the school holiday period with the child and each alternate week thereafter in even numbered years.
There is no specific order for Christmas Day. Depending upon which parent the child is with and when Christmas Day falls, over time the orders would likely provide the child spend an equal number of Christmas Days with each of his parents. However, what has actually happened since June 2018 is that the child’s parents have apparently agreed upon the significance of the day and agreed the child is to spend time with both of them on Christmas Day.
Whilst there is a lacuna in the order, in that there is no specific provision for the child to spend time with the other parent on Christmas Day, the father’s application does not specifically seek any additional order in relation to Christmas Day. We are not of the view that there should be a parenting hearing about it to create greater definition, in circumstances where the parties have successfully over the last four years negotiated an outcome that saw the child spending time with both of his parents on Christmas Day.
The other part of the father’s application in relation to term 4 school holidays is that he wishes to dispense with the alternate week about arrangement.
The father points to the child’s development as a change which means that the child could now be expected to withstand absence from each parent for a longer period than a week. The father also asserts in his material the change would enable the parties to go on extended holidays. The first of these changes cannot be said to be unexpected given the circumstances clearly anticipated by the way the 2015 orders have been drafted. The ability to go on more extended holidays cannot be said to be a change in circumstances, particularly one that would not have been anticipated when the final orders were made.
We are of the view that further and ongoing litigation in relation to term 4 school holidays would not be in the child’s best interest.
Reworking orders for special days other than Easter and relating to information about and attendance at extra-curricular activities (Orders 7-9)
We have discussed the position in relation to Easter above.
We acknowledge the primary judge found there was merit in the father’s application for an order concerning the provision of information about extra-curricular activities. The primary judge suggested an order in the following form:
35.… [W]ithin 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…
Nonetheless, we find that the father has not satisfied us that the requisite test is met in relation to other special days and extra-curricular activities.
International school excursions, overseas travel and passports (Orders 10, 11, 13–19)
Travel on school excursions
The father seeks specific orders regarding the child travelling internationally for school excursions.
At [76] of the May 2021 reasons, we record Order 10 as sought by the father in his Initiating Application filed 7 November 2019 in the following terms:
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 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 [the child’s] primary or secondary school.
(As per the original)
We went on to say:
77There was a proposal that the child travel with the school to [Country F] in 2020 and again in 2022. The mother is of [European] descent and the father has enthusiastically embraced the child’s [European] heritage and makes the point that his current partner speaks [the language of Country F fluently]. The 2020 trip did not take place due to the global pandemic.
78The mother proposes that both parents be able to go on each trip and have their time with the child equally apportioned whilst he is away.
79The father sets out why he opposes this arrangement in his affidavit filed 4 February 2020:
60.…
(a)The parental group attending the trip are expected to share their time together on the trip working together with specific roles in supervising children activities and attending social events together. Should [the mother] and I have a disagreement in this context, it could potentially be very embarrassing and damaging for [the child]…
80Given this issue revolves around a school trip, the dispute falls comfortably within the rubric of the existing 2015 order for equal shared parental responsibility (Order 1)…
Under the order as originally proposed by the father, he would have gone on the 2020 trip and the mother would have gone on the 2022 trip. As indicated, the 2020 school trip did not take place as a result of the COVID-19 pandemic.
The father provides no further evidence about overseas travel or school excursions in his affidavit filed 2 June 2021.
In the mother’s affidavit filed 23 June 2021, the mother says:
21.The school international trip is no longer an issue as it is highly unlikely to take place. The borders are closed until at least 2022. Even after the borders open it is not likely [the child’s] primary school will be organising any overseas trips for its students. If it is ever introduced, [the child] is likely to have completed his primary school education. No decision has yet been made as to [the child’s] secondary education.
In response in the father’s affidavit filed 1 July 2021, he says at paragraph 17:
(a)I appreciate that COVID-19 has placed some restrictions on international travel. However, with the COVID-19 vaccine rollout under way, I am hopeful that international travel may soon be able to recommence.
(b)My partner [Ms H] is now fully vaccinated. I will be vaccinated soon as [sic] able to do so, which I anticipate will be in the next 2 to 3 months.
(c)I seek Orders from this Honourable Court, that [the child] travel on such international excursions with [the mother] and I on an alternating year roster. Such orders would only apply if and when [the child] is able to take international school excursions. If [the mother’s] assumption that such travel would not take place for a significant time is correct, then I do not understand [the mother’s] resistance to the Orders I propose. To the extent [the mother] suggests that this dispute could be settled later, I say that our history has shown that this is unlikely because I have not been able to convince [the mother] to participate in mediation and I wish to avoid future dispute with [the mother].
(As per the original)
Whilst the father asserts that he is hopeful that international travel may soon be able to recommence, he does not seem to dispute the mother’s opinion that it is not likely the child’s primary school will be organising overseas travel in 2022.
The father submits that this Court’s finding concerning the international school excursion issue (at [80] of the May 2021 reasons) dictates that the proceedings will need to be returned to the Federal Circuit Court.
Those comments were made in the context of the likelihood of a trip happening in 2022. As indicated, on the mother’s evidence, that trip is now doubtful.
Given there is no current availability of international school travel, it is not in the child’s best interests to allow litigation based upon a hypothetical.
More generally expanding the current overseas travel orders
The 2015 orders provided for international travel. The father wishes to enlarge and further define their operation.
At paragraph 9 of the father’s submissions in reply filed 1 July 2021, he responds to the mother’s assertion that concerns about international travel are premature by referring to “considerable difficulties” encountered in international travel with reference to paragraph 13 of his affidavit filed 1 July 2021. In that paragraph the father makes reference to a previous attempt to arrange for the child to travel to Country G and Country I to spend time with the paternal grandparents and family in 2017. The mother attended an unsuccessful mediation with the paternal grandparents at that time.
The father submits that the current orders make it impracticable for the child to be able to travel with him internationally for the purpose of international holidays to see the paternal family members. The father also makes reference to the fact that the paternal aunty, uncle and cousins in Country G are due to move to live in City J, Country L in August 2021.
It is a matter of general knowledge that international travel out of Australia at the current time is not easily permitted. It is unclear when that situation will change.
There is no evidence before us, as to any specific proposal for overseas travel, including when, for how long, where and at what cost such an excursion will take place.
The father argues that the orders he seeks will prevent potential problems that may occur in the future.
We are of the view that the father has not established that there is a current significant change or specific proposal that would require the current travel orders to be revisited.
Passports
The father seeks orders with respect to the parents obtaining passports for the child and for the child to attend international excursions.
The parents were able to resolve issues in relation to obtaining the current passport for the child without the need for court intervention. The child now has a passport and the parties agree it will be held by the mother. The father continues to press in his supplementary submissions filed 3 June 2021 at paragraph 31, for machinery type orders concerning the renewal of passports and for the father to obtain access to them if he is to travel overseas with the child in the future. He asserts that this is to avoid a repeat of difficulties the parents have encountered in the past in having the present passport issued and potential problems that may occur in the future.
It is accepted that prior to the current passport being obtained, there was a sad history where each party blamed the other for not facilitating compliance with the necessary formalities to obtain one.
We noted at [83] in the May 2021 reasons the following:
At [34] the primary judge concluded it was appropriate to make a specific order in relation to the child’s passport:
… For more abundant caution, and to prevent any future futile but costly contest, in my view a specific, a [sic] 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…
The primary judge made an order that the parties provide his Honour with an order in those terms but the parties were not able to achieve that outcome and ultimately for reasons explained in the May 2021 reasons, the mother consented to the father’s appeal against that order.
Given that the child’s passport has recently been obtained, there is no imminent issue to be resolved. The parties are the subject of the 2015 order for equal shared parental responsibility, and under that order both need to agree and consent to the issue of any future passport. In the (we believe unlikely) event that there is an issue in relation to the issuing of a passport for the child at some future time, that is a matter that may then need to be litigated.
Changeovers (Order 12)
The current orders provide that the child is to live with his father from 5.30 pm on Friday until before school on Monday in week 1 and from 5.30 pm Wednesday until before school on the following day (Order 3(c)). This means that there are two occasions each fortnight where changeover occurs other than at school during school term. Order 12 provides that those changeovers take place at a shopping centre. The father seeks a modification of the orders so that his time with the child on Friday in week 1 commences after school and similarly his time on Wednesday in week 2 commences after school. Additionally, the father’s application seeks that changeovers at a shopping centre be eliminated if they are required during school holidays and that they take place from the respective homes of the parents depending upon whom the child was with.
The father gives evidence about difficulties at changeover at paragraphs 59–79 of his affidavit filed 7 November 2019 and paragraphs 9–26 of his affidavit filed 4 February 2020, submitting that “[p]lainly, these are not problems one would have contemplated at the time of the 2015 orders” (father’s written submissions filed 12 February 2020, paragraph 23). The father said there were problems on other occasions that he cannot now recall.
In reply, the mother correctly points out that the specific complaints made by the father relate to three incidents, the first of which took place in November 2016, and the second in August 2018. We acknowledge the father’s evidence that there were more than three incidents but he cannot recall what they were. However, the mother accurately submitted to the primary judge that there had been at least 500 changeovers between the parties.
The father’s affidavit filed 2 June 2021 at paragraphs 17 through to 23 provides evidence from the father (without corroboration) as to distress the child is recently experiencing on moving between his mother and his father at changeovers. At paragraph 24 of his affidavit the father deposes to crying in front of the child at a changeover as a result of his frustration at the angst he believes it is causing the child. In her affidavit in reply filed 23 June 2021, the mother denies the contents of those paragraphs so far as they are known to her, pointing out that the father had previously deposed that the child was settled in his care but now asserts that the child is distressed at handover.
In relation to the father’s evidence of the child’s presentation after changeover, the mother submits that the circumstances identified by the father do not amount to a change in circumstance as difficulties moving between the parents’ two households were canvassed in the 2015 family report at paragraphs 36–39 and yet, the 2015 orders were made in the terms that they were. Given that the issue of moving between the parents was squarely before the Court when the final orders were made, the mother submits that the difficulties of this nature cannot amount to a prima facie change of circumstances. There is some force in that argument.
At one point, the mother had in fact offered changeovers at school on the basis that the father commit to being at school on time, and that proposal was refused by the father who insisted changeover happen at the shopping centre at 5.30 pm.
At paragraph 9(d) of the father’s affidavit filed 1 July 2021, the father says:
I agree that [the mother] previously agreed to changeovers taking place at school. At that time, I was self-represented and I wanted this agreement to be formalised in writing before being implemented as deposed in paragraph 10(f) of [the mother’s] affidavit affirmed 10 December 2019.
Having rejected the mother’s previous proposal and in circumstances where she has now become more insistent that the terms of the 2015 final orders be complied with, the father muses in submissions in reply filed 1 July 2021:
Why the mother now suggests that such a change in arrangements would not be in [the child’s] best interests is not clear.
It is apparent the mother has formed the view that the father’s attempts to incrementally change the 2015 orders in various ways is not in the child’s best interests.
In paragraph 8 of his submissions in reply, the father submits that the arrangement he now proposed involving two more changeovers at school each fortnight, would better facilitate substantial and significant time (as defined by s 65DAA(3)(b)(i) of the Family Law Act 1975 (Cth)). Whilst that is so, the father does drop the child to school on two occasions a fortnight under the 2015 orders. In addition, Order 17 of the 2015 orders provides that each parent may attend all functions to which parents are normally invited to attend. The father attests to the fact that he has attended the school and been involved in school-working bees, sausage sizzles and other events (father’s affidavit filed 4 February 2020).
Even taking the father’s evidence at its highest (noting that that evidence is disputed), we are not satisfied that the benefits that the child would receive from becoming involved in litigation to alter the changeover order would outweigh the detriment to the child of his parents embarking upon a new final hearing.
Electronic communication (Orders 28–29)
The father seeks more specific orders in relation to facilitating telephone communication between him and the child. Again, he makes no submission which would satisfy us that there is a sufficient basis on the evidence to establish the change required for him to satisfy the threshold test.
FURTHER HEARING IN ANY EVENT
Based upon the assumption the matter would have to go back for a rehearing on the question of travel for international school excursions, the father argued that it was in the child’s best interests that all matters he now wished to agitate be revisited at the same time. That argument fails because the matter will now not be sent back for a reconsideration of that issue. In any event, we do not find persuasive the argument that because one aspect of a dispute in relation to parental responsibility might need to come back to the court at some future point, then all other aspects that the father wishes to litigate in relation to the 2015 orders should also be available to be dealt with in the same litigation.
CONCLUSION
We are not satisfied that, assuming the evidence of the father is accepted, there are “new events” sufficient to establish a new inquiry would be in the child’s best interests or that the father has established a prima facie case of a relevant change of circumstances.
Accordingly the father’s Initiating Application filed 7 November 2019 shall be dismissed.
COSTS
As indicated at [104] of the May 2021 reasons, the dates and times in Orders 1–3 made 16 February 2021 in respect of filing submissions as to costs shall commence from the date of these reasons.
I certify that the preceding eighty-eight (88) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Ainslie-Wallace, Watts & Tree . Associate:
Dated: 5 August 2021
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