Downie & Spencer
[2022] FedCFamC1F 911
Federal Circuit and Family Court of Australia
(DIVISION 1)
Downie & Spencer [2022] FedCFamC1F 911
File number(s): BRC 4653 of 2022 Judgment of: BAUMANN J Date of judgment: 16 November 2022 Catchwords: FAMILY LAW – PARENTING – Where the father reinstituted proceedings less than one month after final parenting consent Orders were made – Where the mother makes a cross-application in her Response – No appearance by the father – Consideration of Rice & Asplund principles – Where there is insufficient evidence of any change in circumstances – Applications dismissed Legislation: Family Law Act 1975 (Cth) Cases cited: Garrety & Steyn (No. 2) [2021] FamCA 277
Rice & Asplund (1979) FLC 90-725
Division: Division 1 First Instance Number of paragraphs: 14 Date of hearing: 16 November 2022 Place: Brisbane Solicitor for the Applicant: Self-represented litigant (did not participate) Solicitor for the Respondent: Ms Marunda, HCM Legal as friend of the Court ORDERS
BRC 4653 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR DOWNIE
Applicant
AND: MS SPENCER
Respondent
order made by:
BAUMANN J
DATE OF ORDER:
16 NOVEMBER 2022
THE COURT ORDERS ON A FINAL BASIS:
1.That the Applicant father’s Initiating Application filed 21 April 2022 (amended 24 June 2022) be dismissed.
2.That the Respondent mother’s Response filed 25 August 2022 (amended 11 October 2022) (incorporating a cross application) be dismissed.
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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Downie & Spencer has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
(Settled from the oral reasons delivered)
BAUMANN J:
This complicated parenting case that involved now four children, W (now aged 16), X (now aged 14), Y (now aged 11), and Z (now aged eight) – those children being part of a sibship group of seven children – have been the subject of significant litigation since the parties’ separated in 2014. It is not necessary to identify in these succinct Reasons delivered ex tempore all that history, save to note that after the matter had been listed for trial and with the benefit of the parties having lawyers appointed under the section 102NA scheme (with final cross‑domestic violence orders remaining in place until 2026), on 23 March 2022 the Court made final consent orders (“the final Orders”) in respect of the four children.
Although the father apparently has told the mother he is not bound by the final Orders, there is no basis for believing that to be the case. At the time the final Orders were made on 23 March 2022, the father was represented by Counsel, as was the mother and as was the Independent Children’s Lawyer. The final Orders made on that occasion provided for W to live with the mother and for the children X, Y and Z to live with the father.
Part of the catalyst for the further conflict in this very toxic relationship was that the mother had remarried a Mr B and they were moving towards the C Town area and were building a home. The family report that was before the Court before the final Orders were made was prepared by Ms D, and as can be seen from an examination of that report, the actual orders were consistent with the express wishes then of the children.
To put the matter in a context, the three younger children did not wish to move, really, to C Town for different reasons. The final Orders provided differential arrangements for the way the children were to spend time with the mother, noting that the time W would spend with the father was to be in accordance with her wishes, based on her age. She had expressed a strong desire to live with the mother in the C Town area, noting that would allow her to recommence school.
Before the ink was even dry on the final Orders, a further incident appears to have occurred between Y and the mother’s husband, Mr B, on or about 5 April 2022. Almost the entire evidence the father relies upon, set out in his affidavit, is a report by Y and/or X. The mother has responded to the father’s Application filed on 21 April 2022, disputing any incident occurred. There is no evidence that investigations by police (if they were undertaken) or by the Department of Children, Youth Justice and Multicultural Affairs (“the Department”) (if they were undertaken) – noting this family has had a long history of involvement with the department – has ever resulted in any substantiated risk to Y in the mother’s household.
Although the evidence before me today is a few months old, it is likely that some of the parenting arrangements have now broken down. There is an appropriate remedy when that is to occur, and it is not to regenerate more litigation by, as the father seeks, seeking to revisit the final Orders. Although she seeks the father’s Application be dismissed, in her Response the mother also seeks variations to the final Orders. Her desire to do so falls foul of the same principles which have caused me today to order, as I will, that both applications be dismissed. Those principles arise from Rice & Asplund (1979) FLC 90-725, but have been the subject of many statements of judicial authority since 1979.
Principles arising from Rice & Asplund
I incorporate in these Reasons, the statement by Austin J recently in Garrety & Steyn (No. 2) [2021] FamCA 277, at [10]–[12]which succinctly sets out the principles to be applied when considering whether there has been a material and substantial change of circumstances sufficient to warrant revisiting orders made on a final basis:
10I recite and apply the following principles as summarised in Walden & Cooper [2020] FamCA 104:
9.The infinite vicissitudes of life mean no parenting order can ever be truly immutable, which reality is recognised in the Act (s 65D(2)). However, it is well established that no parenting orders, intended to be final, will be revised unless an applicant seeking to vary the orders can demonstrate a material change of circumstance to warrant the revision (Rice & Asplund (1979) FLC 90-725 at 78,905 (“Rice & Asplund”); SPS & PLS (2008) FLC 93-363 at [1] (“SPS & PLS”); Marsden v Winch (2009) 42 Fam LR 1 at [48] (“Marsden v Winch”); Langmeil & Grange [2013] FamCAFC 31 at [43]-[48]; Poisat & Poisat (2014) FLC 93-597 (“Poisat & Poisat”)).
10.The question of whether there has been a change in circumstances of sufficient magnitude to warrant revision of existing orders may be determined either by way of preliminary enquiry or comprehensive hearing (Poisat & Poisat at [39]-[41]; Marsden v Winch at [46]-[47]; Miller & Harrington (2008) FLC 93-383 at [80]-[83] (“Miller & Harrington”)) but, at whichever stage the determination is made, the application of the Rice & Asplund guideline is merely a manifestation of the paramountcy principle (Poisat & Poisat at [18], [19], [40], [42]; Marsden v Winch at [55]; Miller & Harrington at [101]) and procedural fairness should always be observed (Marsden v Winch at [56]).
11In this instance, the mother moved to dismiss the father’s application by way of preliminary hearing based on evidence which is, as yet, untested. In doing so, the mother accepted she must accept the father’s evidence of changed circumstances at its highest (SPS & PLS (2008) FLC 93-363 at [81]; Searson & Searson (2017) FLC 93-788 at [11]).
12If the father’s evidence demonstrates a material change in circumstances, I must then consider whether the asserted need for variation of the existing orders outweighs the potential detriment to the children which the fresh litigation could cause (Marsden v Winch (2009) 42 Fam LR 1 at [50]).
Arising from these principles to be applied, I make the following findings.
In short, there are two steps that need to be undertaken before litigation is recommenced and proceeding in a Court exercising family law jurisdiction where a final order has been made – in this case where a final order is made only eight months ago, where both parties were well represented; where the orders are consistent with the family report at the time, and where the parties with that representation consented to the order. The fact that the father apparently says to the mother that he “reserved his rights” is a legal nonsense.
The two basic principles, as the recitation of authority makes clear, are:
(a)whether there has been a material and substantial change of circumstances since the order was made; and
(b)if there has been, whether the nature of that circumstance is such as to allow further litigation in respect of the children. It has been said on many occasions that the principles in Rice & Asplund are merely a manifestation of what is in children’s best interests, and as was set out in Rice & Asplund, ongoing litigation is not in children’s best interests. It creates uncertainty, it creates friction, and for this family, continues to allow, the mother would say, the father to agitate for changes which he had a chance to undertake at the trial some eight months ago, but chose not to.
I am comfortably satisfied that the father’s Application does not meet the required standards and test under the principles I have indicated and should be dismissed. To the extent that the mother responds in a similar way, she also falls foul of those principles. I accept that it may be that one or other of the parents seek to enforce the final Orders, but that is a different issue, and the procedures in the Court and the rules allow for a process by which non‑compliance with orders can be the subject of sanctions of parents.
Finally, the father, who I understand may still live in the E Town area, has failed to appear today. The matter was listed before me by an Order of the compliance readiness hearing judge, Judge Coates, on 18 October 2022. The Order identifies that the Applicant father appeared on his own behalf. In those circumstances, it is reasonable to infer that the father was aware the matter had been listed before me today at 9.30am. His failure to appear without explanation has caused me to proceed in his absence. I am further of the view that to deal with the matter in his absence does not create a prejudice to him because there is no prospect on the evidence currently before the Court that the principles in Rice & Asplund which are enlivened by the Application have been overcome in this case.
Accordingly, for the reasons given, the order of the Court is that the father’s Application filed 21 April 2022 and amended 24 June 2022 be dismissed.
I will further order that the mother’s Response (incorporating a cross-application) filed 25 August 2022 and amended 11 October 2022 be dismissed.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 21 November 2022
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