EDWARDS & SIMPSON
[2013] FCCA 14
•18 April 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EDWARDS & SIMPSON | [2013] FCCA 14 |
| Catchwords: FAMILY LAW – Parenting – application to dismiss parenting application relying upon principles set out in Rice and Asplund. |
| Legislation: Family Law Act 1975 (Cth) s.60CC |
| Cases cited: Simpson & Edwards [2008] FMCAfam 1333 Rice & Asplund (1979) FLC 90-725 Marsden & Winch (2009) FamCAFC 152 SPS and PLS (2008) FLC 93-363 DL & W (2012) FLC 93-496 Langmeil & Grange [2013] FamCA FC 31 |
| Applicant: | MS EDWARDS |
| Respondent: | MR SIMPSON |
| File Number: | DGC 3186 of 2008 |
| Judgment of: | Judge O'Sullivan |
| Hearing date: | 28 March 2013 |
| Date of Last Submission: | 28 March 2013 |
| Delivered at: | Dandenong |
| Delivered on: | 18 April 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr Kent Hughes |
| Solicitors for the Applicant: | Robert Halliday & Associate |
| Counsel for the Respondent: | Mr Trim |
| Solicitors for the Respondent: | Robin Harrison & Associates |
ORDERS
The application filed 23 November 2012 be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Edwards & Simpson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DANDENONG |
DGC 3186 of 2008
| MS EDWARDS |
Applicant
And
| MR SIMPSON |
Respondent
REASONS FOR JUDGMENT
Ms Edwards (“the mother”) and Mr Simpson (“the father”) are the parents of X, born (omitted) 2001 (“the child”).
The mother is 40 years of age. The father is 45 years of age. The parties commenced a relationship in 1998 and separated in 2003.
On 17 December 2008 after a 3 day trial, final parenting orders were made by Bender FM (“the Orders”) which provided that:
“THE COURT ORDERS THAT:
1.All previous parenting orders be discharged.
2.The Father have sole parental responsibility for the child of the relationship X born (omitted) 2001 (“X”).
3.X live with her Father.
4.X spend time and communicate with her Mother as follows:
(a)during school terms, each alternate weekend from after school Friday to 5.00 pm Sunday commencing 6 February 2009;
(b)from 9.00 am on 2 January 2009 to 5.00 pm on 4 January 2009;
(c)from 9.00 am on 8 January 2009 to 5.00 pm on 10 January 2009;
(d)from 9.00 am on 21 January 2009 to 5.00 pm on 23 January 2009;
(e)for half the school term holidays commencing Term 1 2009 as agreed between the parties, and failing agreement, from 12.00 noon the first Saturday to 12.00 noon the second Saturday of the term holiday;
(f)for two separate weeks in the long summer vacation commencing in the 2009/2010 summer vacation as agreed between the parties and failing agreement the week commencing 2 January and the week commencing 19 January;
(g)on the Mother’s Day weekend from after school Friday to 5.00 pm Sunday;
(h)from 5.00 pm Christmas Day to 5.00 pm Boxing Day in 2008 and each alternate year thereafter and from 5.00pm Christmas Eve to 5.00 pm Christmas Day in 2009 and each alternate year thereafter;
(i)from after school until 6.30 pm on X’s birthday, the Mother’s birthday or Z’s birthday if they fall on a school day and from 10.30 am until 2.30 pm if they fall on a non-school day;
(j)by telephone each Tuesday, Thursday and Sunday between 6.00 pm and 6.30 pm with the Mother to call X on a number provided by the Father to the Mother; and
(k)as otherwise agreed between the parties.
5.To avoid any confusion, the Mother’s time with X pursuant to order 4(a) herein, is suspended during the school holidays and recommences on the first weekend of each school term.
6.In the event X is with her Mother on the Father’s Day weekend, her time shall cease at 5.00 pm on Saturday.
7.In the event X is with her Mother when X’s birthday falls on a Saturday, that time will be suspended between 10.30 am and 2.30 pm.
8.In the event X is with her Mother when X’s birthday falls on a Sunday, her time will conclude at 2.30 pm on that day.
9.X shall be collected by the Mother from the McDonald’s Restaurant, corner of (omitted) and (omitted), (omitted) at the commencement of her time with her Mother, when her Mother is not otherwise collecting her at the conclusion of school and shall be collected by the Father from the McDonald’s Restaurant, (omitted) at the conclusion of X’s time with her Mother save for order 7 when the Father shall collect X from and return X to the McDonald’s Restaurant, (omitted).
10.The Father shall advise the Mother at all times by the use of a Communications Book to be placed by him in X’s bag of the following:
(a)the name of X’s school;
(b)the names and contact details of all X’s treating medical practitioners;
(c)the names and contact details of any counsellors, psychologists, educational psychologists and other professionals engaged in X’s care; and
(d)details of all extra-curricular activities in which X is participating.
11.The Father shall do all things necessary to authorise all schools attended by X to provide to the Mother at her expense, copies of all notices, newsletters, school reports and school photograph order forms and the Mother is authorised to attend parent/teacher interviews, school concerts, speech nights, sporting events and all other activities to which parents are usually invited to attend.
12.The Father shall do all things necessary to authorise all of X’s medical practitioners, counsellors, psychologists, educational psychologists and such other professionals who X may attend upon from time to time to speak with the Mother in relation to X and to involve the Mother in any such treatment if such professionals determine such involvement is in X’s best interests.
13.The Father shall do all things necessary to authorise the Mother’s attendance at any extra-curricular sporting, music or other activities in which X is engaged from time to time.
14.Both parents are to immediately notify the other of any serious illness or accident suffered by X whilst in their care as well as the name of any treating medical practitioner or hospital to which X is taken.
15.The Independent Children’s Lawyer is authorised and directed to forthwith provide Ms S with a copy of these orders and reasons for judgment.
16.Pursuant to section 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.
AND THE COURT NOTES THAT:
A.The Father shall continue to pay all of X’s educational expenses.
B.Both parents are at liberty to attend any of X’s school, sporting or other extra-curricular events which parents would usually attend at the same time.
C.The Independent Children’s Lawyer has arranged for X to attend upon Ms S on Thursday 18 December 2008 and for Ms S to explain these orders to X.”
Current proceedings
On 23 November 2012 the mother filed an initiating application seeking to discharge all previous parenting orders. The application was accompanied by an affidavit sworn on 31 October 2012. The father filed a response on 23 January 2013 accompanied by an affidavit sworn on 22 January 2013.
The matter first came before the Court on 30 January 2013. The mother’s application was opposed by the father. At the first Court date the father made clear he was seeking orders for the dismissal of the mother’s application based upon the principles set out in Rice & Asplund (1979) FLC 90-725 (“Rise & Asplund”).
On 30 January 2013 the Court made the following orders:
“1.The matter be adjourned for interim hearing on the issue of a Rice & Asplund dispute on 28 March 2013 commencing at 10:00 am at the Federal Magistrates Court of Australia at Dandenong.
2.The Applicant shall file and serve any further material to be relied upon on the adjourned date by not later than 11 February 2013.
3.The Respondent shall file and serve any further material to be relied upon on the adjourned date by not later than 25 February 2013.
4.The Applicant file and serve submissions by 11 March 2013
…
5.The Respondent file and serve submissions by 25 March 2013
…
6.Costs be reserved.
AND THE COURT NOTES:
A.All submissions referred to in orders (4) and (5) herein shall be emailed in word format to the Associate to FM O’Sullivan at: (omitted)”
Hearing on 28 March 2013
The proceedings returned to Court on 28 March 2013. The mother was represented by Mr Kent-Hughes of Counsel and the father was represented by Mr Trim of Counsel.
Material relied upon
The mother relied on her:
a)application filed 23 November 2013;
b)affidavit filed 23 November 2013;
c)affidavit filed 8 February 2013; and
d)outline of case filed on 19 March 2013.
The father relied on his:
a)response filed 23 January 2013;
b)affidavit filed 23 January 2013;
c)affidavit filed 22 February 2013; and
d)written submissions filed 26 March 2013.
In the face of his client’s non compliance with the directions made on 30 January 2013, Counsel for the father didn’t press for the Court to deal with the orders sought in the amended response filed 26 March 2013 (to the extent they were different from those contained in the response filed 23 January 2013). Accordingly the Court has treated as abandoned for present purposes, the application in the amended response for orders pursuant to s.118 of the Act. Counsel for the father did not object to this.
On 28 March 2013 the Court heard the parties oral submissions and at the end of the interim hearing the Court reserved its decision.
Application
Against the background of the 2008 Orders, the Court now turns to note that the mother’s application sought the following orders:
“1. That all previous orders be discharged.
2.That the child X born (omitted) 2001 live with the mother.
3.That the child spend time with the father as may be agreed between the parties.
4.That the mother and father be at liberty to attend all medical appointments in relation to the child, and receive all information in relation to the child’s health and wellbeing.
5.That the mother and father be at liberty to receive all school notice, newsletters, reports and school invitations and that both parents be entitled to attend school functions including parent teacher nights, sports days and other activities normally attended by parents at the children’s school(s).
6.That the father be restrained from denigrating the mother to the child or in the presence or hearing.
7.That the father be restrained from discussing these proceedings with the child or in the child’s presence or hearing.
8.That within 30 days from the date of these Orders the father make an appointment to attend upon the child’s epileptic treating professionals at the earliest available appointment to discuss the child’s diagnosis and prognosis.
9.That the father undertake and complete a parenting after separation program.
10.Such further and other Orders deemed appropriate by this Honourable Court.”
At the hearing on 28 March 2013 the mother relied on her application and affidavit material referred to earlier.
Response
The father filed a response on 23 January 2013 seeking the following orders:
“FINAL ORDERS SOUGHT:
1.The Mother’s Initiating Application filed herein on 23 November 2012 be dismissed.
2.That the Mother be restrained from filing any further proceedings or applications in relation to the child or against the Father without the leave of the Court.
3.The Orders made by Federal Magistrate Bender in this Honourable Court on 17 December 2008 remain in full force and effect.
4.That the Mother pay the Father costs of and incidental to these proceedings.
5.Such further or other orders as this Honourable Court deems appropriate.
INTERIM ORDERS SOUGHT
1.The Mother’s Initiating Application filed herein on 23 November 2012 be dismissed.
2.That the Mother be restrained from filing any further proceedings or applications in relation to the child or against the Father without the leave of the Court.
3.The Orders made by Federal Magistrate Bender in this Honourable Court on 17 December 2008 remain in full force and effect.
4.That the Mother pay the Father costs of and incidental to these proceedings.
5.In the alternative to paragraphs 1 to 3 hereof pursuant to s68L(2) of the Family Law Act 1975 the said child be separately represented.
6.Such further or other orders as this Honourable Court deems appropriate.”
As noted earlier the father opposed the orders sought by the mother and sought that the application be dismissed relying on the principles in Rice & Asplund (supra). The father relied on his affidavit filed 23 January 2013, affidavit filed 22 February 2013 and submissions filed 26 March 2013.
2008 Decision
In her reasons for decision when making the 2008 Orders Bender FM said in Simpson & Edwards [2008] FMCAfam 1333 that:
“…
Background
3.The Father was born on (omitted) 1967 and is aged 41 years. He is employed as a (omitted) with (omitted).
4.The Mother was born on (omitted) 1972 and is aged 36 years. She is engaged in home duties.
5.The parties were in a relationship for approximately five years between 1998 and 2003.
6.In 2002, the Mother was diagnosed with paranoid schizophrenia. Her last manic episode was in 2005 and her condition has been managed with medication since that time.
7.The parties commenced litigation upon separation in 2003 in relation to the arrangements for X. Interim orders established a shared care arrangement. This litigation finally concluded by way of final consent orders on 12 December 2005.
8.The December 2005 orders provided inter alia:
(a)Joint responsibility for long term decisions;
(b)X to live week about with each parent, half holidays and special days;
(c)X attend (omitted) Primary School;
(d)Father to reside with his Mother within five kilometres of (omitted) Primary School until X finishes Grade 6;
(e)Changeovers not at school to take place at either (omitted) or (omitted) Police Station; and
(f)Mother to authorise her treating doctor/psychiatrist to advise the Father if such professional has concerns as to Mother’s capacity to care for X.
9.In September 2008, X disclosed to the Paternal Grandmother, her Father and her teacher that she was scared of her Mother, that her Mother had scratched her on the chest and grabbed her around the neck.
10.X has been missing at least one day of school each week whilst in her Mother’s care and had been for over a year. The Mother advised the school she could not afford petrol to get X to school.
11.The school identified X as having learning difficulties. In May 2008, an assessment of X was prepared by an Educational Psychologist, Ms C. The Report confirmed X has some learning difficulties and recommended a number of strategies to assist X into the future to be implemented both at school and at home.
12.Interim orders were made on 29 September 2008 whereby X lives with her Father from Sunday to Wednesday and her Mother from after school Wednesday to 10.00 am Sunday. The Mother was injuncted to ensure X attended school every Thursday and Friday unless ill.
…
86.The Father believes that if he were to be the sole decision maker in relation to X’s life, and in particular her education, counselling and extra-curricular activities, this would ensure that those decisions would be made in X’s best interests. He also believed that this would ensure the consistency and stability that X needs to address her current difficulties and to maximise her ability to achieve her full potential into the future.
87.The Independent Children’s Lawyer, in his submissions, supported an order whereby the Father have sole parental responsibility for all decisions for X in relation to her education and counselling issues, and that otherwise the parties have shared parental responsibility.
88.There is no doubt that the Mother has failed to make decisions and to engage in important aspects of X’s life.
89.In particular, her failure to ensure X’s regular attendance at school and failure to actively participate and engage with the school in the remedial work identified as necessary for X to progress is of major concern.
90.Also of concern is her inability to engage with X’s counselling with Ms S. Her explanation for this failure that no-one told her how to contact Ms S is unacceptable and indicative of her propensity to lay blame for any shortcomings in her parenting at the feet of anyone but herself.
91.Of further concern is the Mother’s continued objection to any suggestion that she and the Father work together in their parenting of X. Whilst she was very critical of the Father for failing to take up her offer for mediation to discuss issues around X changing school, she failed to see that her insistence that the Father, or anyone known to the Father, not be involved in any of X’s important extra-curricular activities during any period that X was living with her was not in X’s best interests. Her belief that such time was “my time” is indicative of her lack of insight into what is best for X. She was unable to acknowledge that it would be important for X to have both her parents there when she was engaged in something exciting or important for X like swimming or speech night or concerts. She seemed only able to consider this issue from her own perspective.
92.It was the Father’s evidence that the Mother refuses to engage in any communication with him, either by phone or indirectly through messages or notes. This evidence I accept. This has the practical outcome that it is not possible for these parents to make joint decisions that are in X’s best interests.
93.For these reasons, orders will be made that the Father have sole parental responsibility for X.
94.This does not mean however that the Mother will be excluded from the major and important areas of X’s life. Orders will be made that the Mother is to be advised as to all issues in relation to X’s education, counselling, health, extra-curricular activities and other major events in her life and that she be specifically authorised to engage in and participate in all areas of X’s life.
…
Conclusion
154.In considering the best interests of X, I am of the view that it would be in her best interests to live in the primary care of her Father and to spend time with her Mother and sister each alternate weekend, during holiday periods and on other special occasions.
155.I am also of the view that it would be in X’s best interests that her Father have sole parental responsibility for making decisions in relation to the major issues in X’s life.
156.In forming this view, I am satisfied that the Father is best placed to provide X with the stable, consistent and settled home environment that she needs to develop to her maximum potential.
157.I am satisfied that the Mother’s lack of insight into X’s needs, her inability to put X’s needs ahead of her own and her refusal to communicate with the Father are such that it is in X’s best interests for the Father to have sole parental responsibility.
158.I am also satisfied, that the Father will ensure that all X’s special educational needs are properly addressed and that he will conscientiously and actively contribute to the programmes and activities required by the educationalists assisting X.
159.Implicit in this decision, is the outcome that X will continue to attend (omitted) Primary School for the remainder of her primary school education.
160.Whilst there is no doubt that the Mother loves her daughter, she has been unable to place X’s needs above her own to the detriment of X. Additionally, she is unable to acknowledge the responsibility that rests on her for the decisions that she has made, particularly in relation to X’s schooling and X’s counselling that have not been in X’s best interests.
161.In relation to the time that X spends with her Mother and sister, I do not accept the Father’s proposal or Ms S’s recommendation that such time be limited to daytime only. X’s relationships with her Mother, sister and extended family are very important to her and she should be able to spend the whole of every second weekend in that household.
162.This transition for X, as Ms S noted, will be much easier for her if her parents are supportive of the decision and it is explained to her in such a way that she feels the decision has been made in her best interests, and not as a criticism of either of her parents or their love and care for her.
163.It is pleasing the Independent Children’s Lawyer has arranged for the explanation of these orders to X to be made with the assistance of Ms S.
164.Finally, it is also going to be very important for X that both her Mother and Father are actively involved in all the aspects of her life. Whilst I have made an order for sole parental responsibility, orders are also being made that ensure that the Mother is fully engaged in all the important aspects of X’s life and it is incumbent upon her that she takes the opportunity to so engage.
165.Whilst it is a matter for the Mother as to whether she is prepared to attend X’s sporting and schooling events, knowing that the Father will be there, she is encouraged to do so as this can only be in X’s best interests.”
Submissions of the mother
The mother’s written submissions identified the documents she relied on, set out what was said to be a short history, particularised her submissions by reference to the factors in s.60CC of the Act and then set out the orders she sought.
The mothers submissions inter alia were that:
·she had been “weaned off” prescription medication;
·in 2011 the child was “assessed” as satisfying all criteria for autism spectrum disorder;
·the child was absent from school for 21 days in 2011;
·there was a provisional diagnosis of epilepsy in 2012;
·she was excluded from the creation of epilepsy management plan for the child; and
·the child was absent from school for 35 days in 2012.
In the context of submissions made under s60CC of the Act the mother contended inter alia that:
·the father has frustrated the mother’s attendance at important events in the child’s life by failing to provide relevant details;
·the father is in denial about the child’s development and health issues;
·the father has demonstrated that he will provide minimal information to the mother and obstruct the mother’s involvement in the health and development of the child;
·the father is unable to meet the child’s changing developmental needs as she grows older; and
·the child’s health and life is at risk whilst in the primary care of the father due to his lack of vigilance about the child’s health and minimisation of the health concerns.
In summary the mother submitted since the Orders:
·the child’s health and development has changed and she has been diagnosed with epilepsy, autism, learning disability, sleeping issues and obesity;
·the father is frustrating the mother’s engagement with the child’s treating health care professionals; and
·the father is not supporting the relationship between the mother and the child.
Counsel for the mother didn’t seek to add to the written submissions filed on behalf of his client and was content for his client’s application to be considered on that basis. Counsel for the mother despite being given the opportunity did not seek to be heard in reply to the written or oral submissions made on behalf of the father.
Submission of the father
The father’s submissions were inter alia:
…
6.1 The three circumstances that have changed
It is not in dispute that there are at least three circumstances that have arisen since the making of the Order by Bender FM on 17 December 2008 (the Order). Those circumstances are:
(a)The child's diagnosis on the Autism Spectrum scale (as mild) in November 2011;
(b)The child's diagnosis of suffering from epilepsy in May 2012;
(c) The child has experienced some issues concerning her weight;
On the face of it, those are significant circumstances but to use that “shorthand” phrase would lead to the sort of misapplication of the rule that is warned against by Warnick J in SPS & PLS.
The essential dispute between the parties is about the fashion in which those conditions are being managed (not the circumstances themselves).
· The Mother on the one hand alleges that the Father is not managing those conditions to the point where the child "will suffer and her life is at risk": Affidavit of Ms Edwards filed 8 February 2013 paragraph 2 (hereinafter referred to as Ms Edwards 8/2/013).
· The Father on the other hand says he is managing those conditions.
It is submitted that were the Court to embark upon a full hearing of the “management” issue it is unlikely that, putting those circumstances in the context of the broader circumstances pertaining to the arrangements for X there is no likelihood of the orders being varied in a significant way.
This is because the evidence would be no different to that which the Father currently advances as to his management of those conditions. Put another way, a full hearing would be expected to involve the Father in calling a number of medical witnesses namely:
· Ms B, Psychologist (who first raised the possibility of X suffering from Autism);
· Dr C, Consultant Paediatrician who diagnosed the child on the Autism spectrum disorder;
· Dr T who diagnosed the child's epilepsy; and
· Ms W, Dietitian.
It is unlikely that, where those medical practitioners have supplied reports (and all have done so save and except for Ms W) those practitioners would give evidence other than in accordance with the written reports which are before the Court in the form of annexures to the Respondent Father's Affidavit filed 23 January 2013 (hereinafter referred to as Mr Simpson 23/1/13).
It is submitted that those reports and the father’s affidavit evidence, establish that the father is managing the child’s conditions and, in particular:
· has followed up his concerns about the child's lack of socialisation by co-operating in a confidential psychological assessment which was conducted by Ms B who produced the report dated 15 July 2010 and which forms the annexure Mr Simpson4 to Mr Simpson 23/1/13.
· The Father has followed up the recommendations in that report by obtaining referral to Dr C, Consultant Paediatrician. Dr C has produced a short report of the child's diagnoses on the Autism Spectrum Disorder (report dated 29 November 2011) which report forms annexure Mr Simpson5 to Mr Simpson 23/1/13.
· Dr C has also provided the short report as to the child's medication summary as at 17 April 2012 –Mr Simpson 6 to Mr Simpson 23/1/13.
· The Father has followed up the possibility of the child having epilepsy. Dr T, paediatrician has provided a medical report in relation to the child's diagnosis with epilepsy which report is dated 29 May 2012 and which forms annexure Mr Simpson7 to Mr Simpson 23/1/13.
· Further, Dr T has provided a report having followed up the child for her epilepsy setting out her current medications , which report is dated 15 August 2012 and which report forms Mr Simpson9 to Mr Simpson 23/2/13
· The Father has followed up the possibility of having an epilepsy management plan. That plan forms annexure Mr Simpson11 to Mr Simpson 23/2/13.
· The Father clearly keeps the child's school informed of plans to manage the child's epilepsy at school. Annexure Mr Simpson12 to Mr Simpson 23/2/13 comprises a letter from Dr T to the child's class teacher concerning the management of her epilepsy whilst on a school camp.
· The report of Dr T forming Mr Simpson9 to Mr Simpson 23/2/13 makes reference to the child being overweight. The father has clearly followed up this issue by sending the child to a dietitian as recommended: see affidavit of Mr Simpson filed 22/2/13 in particular paragraphs17-20 and the affidavit of Ms T filed 22/2/13 in particular paragraphs 15-19.
6.2Circumstances which the Mother alleges have changed but in reality are no different to when the order was made.
The Mother deposes (in paragraph 11 of her Affidavit filed 23/11/12) to:
(a) Having been diagnosed with schizophrenia in 2002;
(b) That diagnosis being changed in 2009 when she was pregnant with her child Y; and
(c) Having been weaned off her medication by May 2010 and not being diagnosed with any mental health issues at present.
It is submitted that the Mother has produced no medical evidence of the assertions that she makes in that Affidavit notwithstanding she was alerted to the need to produce such evidence (see paragraph 34 of the Respondent Father's Affidavit filed 22 January 2013).
It is submitted further that the issue of the Mother's mental health was an issue which was raised in the Contested Final Hearing before Bender FM and, that the Mother presently takes no medication and is not "diagnosed with any mental health issues at present" (even if true) is, in effect, no different from the position in which the Mother was at the time of the Final Contested Hearing.
Her Honour said: "The Independent Children's Lawyer submitted that in relation to any allegations considering the current state of the Mother's mental health there was no need to make any findings other than it is currently being properly managed and is under control. I agree with this submission”: Reasons for judgment page 25 at paragraph 145.
Therefore, it is submitted, there is no of change of circumstance at all in relation to the mother’s mental health when put in the broader context pertaining to the child’s living arrangements.
6.3Circumstances which do not amount to any change even if borne out by the evidence.
The Mother's complains in paragraph 12 of her Affidavit filed 23/11/12 that the Father does not assist with the child's transportation. The Father's denies this. It is submitted that even if the Mother's allegations were borne out by the evidence that assertion constitutes no change of circumstance sufficient to provoke a new inquiry.
6.4The Mother's generalised allegations concerning the Father's failure to communicate with her
The Mother makes general allegations about the Father's failure to communicate with her, in particular, concerning X’s conditions. Clearly the Father denies a failure to communicate and, it is submitted cites, credible examples of his efforts to communicate with the Mother :see affidavit of Mr Simpson filed 23/1/13 generally.
The Father's failure to communicate with the Mother is an allegation that the Mother has previously made (and it is submitted will probably continue to be made).
Her Honour Bender FM discussed this at paragraph 116 of her judgment and said the following:
"Section 60CC(3)(c) the willingness and ability of each of the children's parents to facilitate and encourage a close and continuing relationship between the child and the other parent":
116. As discussed in (sic) length earlier in this judgment, there are real concerns as to the Mother's ability to facilitate X’s relationship with her Father
117. The Mother's refusal to communicate with the Father in any way is of major concern.
118. Also of major concern is the Mother's ongoing blame of the Father for any of the deficiencies identified in relation to her care of X.
119. It was her evidence that the Father's Application for a reduction in Child Support as is allowed under the legislation being the reason that she was unable to get X to school.
120. It was the Mother's evidence that she had not engaged with Ms S because the Father had not given her the requisite details to be able to do so.”
(Ms S was a counsellor who was seeing the child leading up to the Contested Final Hearing.)
Previously in her judgment Her Honour had said :
“43. The Mother was critical of the Father and to a lesser extent the school for not involving her in the counselling X is having with Ms S or providing her with any contact details for Ms S.
44. It was her evidence that she had asked the school for Ms S's contact details and that they had refused to give them to her because of their privacy obligation.
45. When questioned as to why she had not asked the Father for those details or obtained Ms S's contact particulars from the phone book the Mother was unable to explain why she had not taken such action”
Her Honour had the benefit if seeing the mother in the witness box.
It is submitted that the Mother continues to unjustifiably blame the Father for not receiving information about the child or information concerning the child which the allegations have no credible basis.
6.5 The Child’s Current Situation.
· It is submitted that the evidence is that the child is doing very well in her current situation.
· The Father has annexed to his Affidavit filed 23January 2013 (at annexure Mr Simpson8) X’s school reports from December 2011 and December 2012.
· It is submitted that it is remarkable that the child does as well as she does at school given that the child commences from a position well behind her peers in terms of natural ability.
· X attends (omitted) Primary School and she has done so in the beginning since Prep. She completed Year 5 at end of 2012. It is submitted that the school reports show that X is at standard in each and every subject save and except her Health and Physical Education. She has some difficulty with number and space in Mathematics. She is above standard in speaking and listening and in Science Information and Communications Technology.
· The Mother is proposing that she change the child's school. It is submitted that it is certainly not in the interest for a child such as X who suffers from Autism Spectrum Disorder that there be a change in her schooling.
Further, it was the Mother's failure to support the child getting to school during the period leading up to the final orders made by Bender FM (during which period the child lived with the Mother half of the time) that contributed to Her Honour's decision that the child live with the Father.
At paragraph 131 of Her Honour's judgment she said the following:
"Section 60CC(3)(f) The capacity of (i) each of the child's parents; and (ii) and other person including the grand parent or other relative of the child; to provide for the needs of the child including emotional and intellectual needs.
131. In many ways this section goes to the crux of the matter.
132. It is apparent from the evidence that the Mother is unable to fully meet X’s emotional and intellectual needs as evidenced by her inability to ensure that X regularly attends school, and to actively engage in X’s ongoing counselling.
133. By contrast the Father has fully embraced X’s needs, particularly in relation to learning difficulties and the positive progress she is making in this regard can primarily be slotted home to him.
134. The paternal grandmother is also a significant contributor to X’s life in this regard.”
· It is submitted the material before the Court suggest that the Father continues to fully embrace X’s needs and her school reports bear this out.
· It is submitted that the paternal grandmother, contrary to the implications of mother’s allegation that the father engages the assistance of his “elderly” mother (paragraph 26 of the affidavit of the mother filed the 8th February 2013) that this is unacceptable of itself and that the father is not caring for the child himself, continues to be a significant contributor to X’s life. She enables the child to get to school (see affidavit of Ms T filed 22/2/13).
· Further, it is submitted the Mother has advanced no evidence that suggests her capacity to meet the child's needs in relation to her schooling, has or would improve from that which it was found to be by Bender FM. The mother advances no such evidence whilst at the same time proposing the child be removed from the school in which she is doing it is submitted, very well indeed.
7.SUMMARY OF SUBMISSIONS
7.1The child’s best interests were extensively canvassed in a final contested hearing a little over 4 years ago. Her Honour had the benefit of observing each of the parties in the witness box.
7.2It was considered then that for many reasons the child's best interests were served by living with her Father.
7.3Whilst there have been some changes in the child’s circumstances the mother has not satisfied the Court that there has been any change of circumstances sufficient to provoke a new enquiry into this child’s living arrangements.
7.4The Father has advanced evidence (which would likely be the same at trial) that he more than adequately manages the child's changed circumstances.
7.5There is no likelihood of any change in any order now in place concerning the child’s living situation.
7.6Indeed the evidence shows the child is doing so well in her current situation it is submitted that to effect any change in the child’s living arrangements may in fact be contrary to the child’s best interests.”
Counsel for the father was content to make brief oral submissions supplementing the written submissions filed on behalf of his client. Counsel for the father contended the mother sought to turn the existing orders upside down. Counsel for the father in submissions before the Court contended:
a)the mother alleged the child’s diagnosis with autism in 2011 was a significant change yet in 2008 the child had all the “hallmarks” of that diagnosis. This was recognised at the time the Orders were made and the diagnosis is itself not a sufficient change;
b)the mother alleged the child’s diagnosis with epilepsy in 2012 was a significant change and the child was at risk in the father’s care. However it was submitted Dr T had considered the proper treatment for the child, which the father was following;
c)the criticisms made of the mother in 2008 remained relevant to the strength of her current application particularly that she lacked insight and had a chaotic lifestyle over a long period;
d)even if the case was re-opened the likelihood was the extent of change to existing arrangements was such that it mitigated against the mother’s current application; and
e)there was no evidence of a potential close sibling relationship with the mother’s adult child, Z such as to warrant this being a factor in favour of the mother’s application.
Relevant principles
The parties in submissions were given an opportunity to address the authorities that have considered the principles in Rice & Asplund (supra). In relation to those principles in Marsden & Winch (2009) FamCAFC 152 the Full Court of the Family Court said:
“41.Warnick J in SPS & PLS [2008] FamCA FC 16; (2008) FLC 93-363 said at [1]:
The “rule” in In the Marriage of Rice and Asplund...that, where there has already been a final order in respect of parenting issues, before the court embarks on a rehearing of those issues, the applicant must establish a significant change of circumstance – is certainly useful, if not essential. But it is not the primary principle in applications for parenting orders. Nor is its utility or weight uniform across cases in which it might be applied. In particular, those attributes vary, according to whether the rule is applied at the outset of or at the end of a hearing.
42.The application of the rule was again described by Warnick J in [45] – [49] inclusive. Before turning to what Warnick J said of it, it is useful to recall that Rice & Asplund involved an appeal from custody orders which reversed an order made nine months beforehand. In her reasons for judgment (at 78,905), Evatt CJ said of the position of a court confronted with an application to change an earlier order that:
It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that, to quote Barber J., there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material
43.Evatt CJ went on to say that the threshold question was not necessarily one for preliminary determination.
44.As Warnick J discussed, the purpose of the “rule” is to discourage “endless litigation” In addition, as Nygh J said in McEnearney (1980) FLC 90-866 at 75,499:
...the principle that there be an end to litigation has equal force in custodial disputes and in some respects may have even greater force in custodial disputes. The last thing, of course, that this court would wish to see would be a perennial football match between parents who because the strict principles of res judicata are not applicable might seek to canvass again and again the question of custody of a child with the enormous psychological harm which they would be inflicting not only upon each other but especially upon the child.
45. Warnick J opined in SPS & PLS (supra) that:
58.Another end served by the rule is that it avoids one judge substituting his or her opinion of what is in the best interests of a child for that of another judge, though both opinions are based on the same or similar facts. This "evil" is avoided by a requirement that the previous order should not be altered unless there has been a change of circumstances sufficient to justify that result.
46. Warnick J had earlier said at [48]:
In my view, reflection on the rule shows that:
(i)What the application of the rule can achieve if dealt with as a preliminary matter is different from what it can achieve if dealt with at the end of a full hearing.
(ii)In its original formulation, the rule is directed to application as a preliminary matter. Yet, contemporaneously with that formulation the court in Rice and Asplund determined that the rule could equally be applied at the end of a full custody hearing. The consequences of that determination have received little attention.
(iii)At whatever stage of a hearing the rule is applied, its application should remain merely a manifestation of the "best interests principle".
(iv)Discussion in terms that the rule may be applied as a "preliminary matter" or the primary application be first heard "on the merits" may be unhelpful, particularly because of the implication that, if the rule is applied as a preliminary matter, the parenting application is not then dealt with "on the merits".
(v)The application of the rule is closely connected with the nature of, and degree of, change sought to the earlier order.
(vi)"Shorthand" statements of the rule may contribute to its misapplication.
(vii)Any application of the rule must now measure the evidence against the principles set out in Part VII of the Act, in particular the objects of the Part, the presumption of equal shared parental responsibility and the steps required by the Act consequent upon an order made or to be made in that regard.
47.We agree with those observations. Warnick J went on to consider each of these observations, recognising (at [74]) that once a court refrains from applying the rule as a preliminary matter and embarks upon a hearing the rule should not necessarily be cast aside although its force might be diminished. Importantly, Warnick J made the point that the implication should be avoided that if the rule is applied as a preliminary matter the parenting application is not dealt with on the merits. In particular, he noted that the “paramountcy principle” still applies to the decision to dismiss an application to vary (s 60CA of the Family Law Act 1975 (Cth); see also Newling & Mole [1987] FamCA 21; (1987) FLC 91-856; F & N (1987) FLC 91-813; McEnearny (supra)). We agree with the conclusion reached by Warnick J (at [81]) that:
...when the threshold question described in Rice and Asplund is determined as a preliminary matter, it remains a determination “on the merits”. Where an application is dismissed at a preliminary stage, it is not dismissed for some technical reason, such as the failure of a party to appear or some lack of compliance with form and procedure but rather because, assuming the evidence of the applicant is accepted, there is an insufficient change of circumstance shown to justify embarking on a hearing. Though sometimes unstated, the underlying conclusion will or ought be that the interests of the child in not being the subject of further litigation is more powerfully in the child’s welfare than to allow the application to continue.
48.In summary, the best interests issue arises because there are so many changes in the lives of families that the changed circumstances that will permissibly allow re-litigation of a decision must be circumscribed, otherwise there would exist in some cases the spectre of endless litigation finalising only when the child attains 18 years of age and the courts no longer have jurisdiction.
49.However, even that simple formulation must be subservient to the nature of the application itself. This is the genesis of the “rule” in Rice & Asplund and as Warnick J says it is founded on the notion that continuous litigation over the child or children is not generally in their interests. It is usually hoped that the determination of a controversy concerning children by a court will result in at least a reasonable period of stability of those arrangements and freedom from the stressful and conflictual effects of litigation on both parents and children. In addition, recent research demonstrates that conflict between parties is itself harmful to children.
50.Nevertheless, there are significant changes that occur and which do require a court to reconsider decisions previously made. Whether in a particular case a court should be willing to embark upon another hearing concerning the child and parent, or whether to do so would itself be demonstrably contrary to the best interests of the child, is a decision to be made in each particular case. How is that decision to be made? The court must look at:
(1)The past circumstances, including the reasons for the decision and the evidence upon which it was based.
(2)Whether there is a likelihood of orders being varied in a significant way, as a result of a new hearing.
(3)If there is such a likelihood, the nature of the likely changes must be weighed against the potential detriment to the child or children caused by the litigation itself. Thus, for example, small changes may not have sufficient benefit to compensate for the disruption caused by significant re-litigation.”
There have been more recent Full Court decisions that have considered the rule in Rice & Asplund (supra). In Langmeil & Grange [2013] FamCA FC 31 the Full Court Said:
“43.The rule in Rice & Asplund was recently considered in
DL & W[2012] FamCAFC 5; (2012) FLC 93-496 per May, Thackray & Strickland JJ. DL & W concerned Part VII as enacted immediately prior to the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011. The amendments do not affect the manner in which the rule operates. It follows that their Honours remarks in DL & W also apply to proceedings to which the current Part VII applies. Their Honours in DL & W correctly recorded that the “rule” has its genesis in remarks by Evatt CJ in Rice & Asplund at [78,905-06]:The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that ... there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material.
44. Evatt CJ continued:
These are not necessarily matters for a preliminary submission, but they are matters that the judge should consider in his reasons for decision. It is a question of finding that there are circumstances which require the court to consider afresh how the welfare of the child should best be served. These principles apply whether the original order is made by consent or after a contested hearing. The way they apply and the factors which will justify the court in reviewing a custody order will vary from case to case.
45. In DL v W, their Honours pointed out that:
The debilitating effect of ongoing litigation on children and parents alike was emphasised by Strauss J in this passage in Freeman and Freeman [1986] FamCA 23; (1987) FLC 91-857 at 76,470–71:
“Continuing and seemingly endless and inconclusive litigation is usually emotionally damaging to the litigants and is likely to affect the children adversely. It impairs the ability of the custodian, in this case the wife, to deal with the present and plan for the future of the family. It is financially burdensome. ... The welfare of the children is, in this case, as in any others concerning custodial arrangements, the paramount consideration. But once the court, either after a full hearing or by a consent order, has settled the question of custody, it is usually in the interests of the children that the order made by the court is treated as determining the dispute and be given the necessary support. Stability in the lives of children and also in the lives of adults is an essential prerequisite to their well-being. ...”
In Langmeil & Grange (supra) the Full Court noted the remarks made in DL & W (2012) FLC 93-496 also apply to proceedings to which the current Part VII of the Act applies. In DL & W (supra) the Full Court said:
“Relevant law
60.As Evatt CJ said in Rice and Asplund, a court “should not lightly entertain” an application to reverse earlier parenting orders. The stated rationale of the then Chief Justice was the avoidance of the “endless litigation” that might otherwise ensue, since “change is an ever present factor in human affairs”.
61.As we have earlier recorded, Evatt CJ suggested (at 78,905) that a court would only hear an application to vary an earlier order if it were satisfied that there:
…is some changed circumstance which would justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material…
62.Evatt CJ acknowledged the infinite variety of circumstances that would warrant application of the principle she had stated, and she also effectively found there was no “right” time for it to be considered. This is apparent from what her Honour said in the following passage (at 78,905-78,906):
These are not necessarily matters for a preliminary submission, but they are matters that the judge should consider in his reasons for decision. It is a question of finding that there are circumstances which require the court to consider afresh how the welfare of the child should best be served. These principles apply whether the original order is made by consent or after a contested hearing. The way they apply and the factors which will justify the court in reviewing a custody order will vary from case to case.
63.Evatt CJ’s views were endorsed by the other members of the bench in Rice and Asplund and have been routinely followed ever since, including after the 2006 amendments to the Act. For recent discussions of the “rule” by the Full Court see Reid & Lynch (2010) FLC 93-448, B & J [2009] FamCAFC 103, Marsden v Winch (2009) 42 Fam LR 1, Caracini & Paglietta [2009] FamCAFC 188 and Gotch & Gotch [2009] FamCAFC 3.
64.The policy considerations underpinning the “rule” were explained in McEnearney and McEnearney (1980) FLC 90-866, where Nygh J said at 75,499:
…the principle that there be an end to litigation has equal force in custodial disputes and in some respects may have even greater force in custodial disputes. The last thing, of course, that this court would wish to see would be a perennial football match between parents who because the strict principles of res judicata are not applicable might seek to canvass again and again the question of custody of a child with the enormous psychological harm which they would be inflicting not only upon each other but especially upon the child.
65.The debilitating effect of ongoing litigation on children and parents alike was emphasised by Strauss J in this passage in Freeman and Freeman (1987) FLC 91-857 at 76,470-71:
Continuing and seemingly endless and inconclusive litigation is usually emotionally damaging to the litigants and is likely to affect the children adversely. It impairs the ability of the custodian, in this case the wife, to deal with the present and plan for the future of the family. It is financially burdensome. …The welfare of the children is, in this case, as in any others concerning custodial arrangements, the paramount consideration. But once the court, either after a full hearing or by a consent order, has settled the question of custody, it is usually in the interests of the children that the order made by the court is treated as determining the dispute and be given the necessary support. Stability in the lives of children and also in the lives of adults is an essential prerequisite to their well-being. …
66.The likely adverse impact of litigation on children has also been recognised in the High Court. In CDJ v VAJ (1998) 197 CLR 172 at 204 [118] McHugh, Gummow and Callinan JJ (albeit in a different context) said:
… So too the public and private interest in the finality of litigation must be given some weight even in cases of this kind. The important private interests of children are unlikely, save in special circumstances, to be served by frequent displacements of them and the uncertainty of prolonged and repetitive proceedings.
67.The legislation itself now expressly directs judicial officers to have regard to the potential impact of proceedings on the welfare of children. As the Full Court pointed out in Miller & Harrington (2008) FLC 93-383, the provisions of 69ZN of the Act, which prescribes “principles for conducting child-related proceedings”, apply to a hearing in which Rice and Asplund is invoked. Subsection 69ZN(3) provides (our emphasis):
The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.
68.There are, of course, cases where it is necessary, in the interests of the child, for a court to revisit “final orders”, whether made by consent or following a defended hearing. As Evatt CJ said in Zabaneh and Zabaneh (1986) FLC 91-766 at 75,587 (Fogarty and Renaud JJ agreeing):
The welfare of children may ultimately demand that issues concerning access, custody and so forth, and so on, be reconsidered, but only when there is some evidence of an underlying change in the circumstances, whether that be in the attitudes of the parties, or the needs or circumstances of the children. The fact that time has elapsed or a considerable time, may be relevant, but it is not the only factor to take into account.
69.As the Federal Magistrate noted, the Rice and Asplund authorities were reviewed in SPS and PLS, where Warnick J recognised that the purposes that can be served by the “rule” differ depending upon the stage of the proceedings at which it is sought to be applied. For example, in the event it is addressed as a preliminary matter it is clearly more effective in discouraging “endless litigation” than if it is applied at the conclusion of the hearing.
70.Warnick J observed (at 87,451) that “at whatever stage of a hearing the rule is applied, its application should remain merely a manifestation of the ‘best interests principle’”. His Honour also recognised that “the application of the rule is closely connected with the nature of, and degree of, change sought to the earlier order”. We respectfully adopt those observations, with the latter being of particular importance in the determination of this appeal.
71.Warnick J’s views were also endorsed by the Full Court in Marsden v Winch (supra at 19 [47]), where Bryant CJ, Finn and Cronin JJ went on to say (footnotes omitted):
48.In summary, the best interests issue arises because there are so many changes in the lives of families that the changed circumstances that will permissibly allow re-litigation of a decision must be circumscribed, otherwise there would exist in some cases the spectre of endless litigation finalising only when the child attains 18 years of age and the courts no longer have jurisdiction.
49.However, even that simple formulation must be subservient to the nature of the application itself. This is the genesis of the “rule” in Rice & Asplund and as Warnick J says it is founded on the notion that continuous litigation over the child or children is not generally in their interests. It is usually hoped that the determination of a controversy concerning children by a court will result in at least a reasonable period of stability of those arrangements and freedom from the stressful and conflictual effects of litigation on both parents and children. In addition, recent research demonstrates that conflict between parties is itself harmful to children.
50.Nevertheless, there are significant changes that occur and which do require a court to reconsider decisions previously made. Whether in a particular case a court should be willing to embark upon another hearing concerning the child and parent, or whether to do so would itself be demonstrably contrary to the best interests of the child, is a decision to be made in each particular case. How is that decision to be made? The court must look at:
(1) The past circumstances, including the reasons for the decision and the evidence upon which it was based.
(2) Whether there is a likelihood of orders being varied in a significant way, as a result of a new hearing.
(3) If there is such a likelihood, the nature of the likely changes must be weighed against the potential detriment to the child or children caused by the litigation itself. Thus, for example, small changes may not have sufficient benefit to compensate for the disruption caused by significant re-litigation.
72. Their Honours continued:
55. Given that the application of the rule should always remain a manifestation of the best interests principle, we do not think that that principle can be given its full weight by restricting the application of the rule in Rice to two choices, either application of the rule by taking the applicant’s case at its highest, or a full hearing.
56. In our view, depending upon the facts of each case, a broader range of processes should always be considered. This is because the decision is one which must be made in the best interests of the child but may also be because of the need to provide procedural fairness in the manner in which the court determines how the rule will be applied. …
73.The Full Court then described a two step process to be followed when the Rice and Asplund “rule” is invoked. Their Honours said:
58. …there is a requirement:
(1)for a prima facie case of changed circumstances to have been established; and
(2) for a consideration as to whether that case is a sufficient change of circumstances to justify embarking on a hearing.”
In Langmeil & Grange (supra) the Full Court said:
“In DL v W and Marsden v Winch[2009] FamCAFC 152; (2009) 42 Fam LR 1, per Bryant CJ, Finn and Cronin JJ, their Honours endorsed, as do we, Warnick J’s approach to Rice & Asplund referred to in SPS & PLS[2008] FamCAFC 16; (2008) FLC 93-363. In particular, that the rule is a manifestation of the best interests’ principle and founded on the notion that continuous litigation over a child or children is generally not in their interests. Also, that the application of the rule is connected with the nature and degree of change sought to the earlier order.”
Consideration
This matter proceeded on the papers with the assistance of submissions made on behalf of each of the parties. Subject to the qualification referred to earlier I have had regard to the material upon which the parties relied.
The authorities referred to earlier made clear that for the purposes of this application I should take the mother’s case at its highest. There is a requirement for a prima facie case of changed circumstances to have been established and for this to be a sufficient change of circumstances to justify embarking on a new hearing on what is in the child’s bests interests.
The mother’s concerns and reasons why the orders should be discharged were set out in her affidavits.[1] The father’s affidavit material responds to these claims.[2] As has been acknowledged by the father it is not in dispute that at least three circumstances have arisen for the child since the Orders.[3]
[1] see affidavit filed 23 November 2012 at [12]-[43] and affidavit filed 8 February 2013 at [3]-[30].
[2] see affidavit filed 23 February 2013 at [19]-[61] and affidavit filed 22 February 2013 at [2]- [23] and [30]-[34].
[3] see submissions at [6]
The father submits that the circumstances for the mother have not in reality changed, the circumstances that have arisen for the child are being appropriately managed, those circumstances are not sufficient or sufficiently different to provoke a new inquiry and it is unlikely the Orders would be varied in a significant way.
The mother’s submissions didn’t explicitly address the relevant issues for the purpose of applying the rule in Rice and Asplund.
The bulk of the mother’s first affidavit contains complaints about the father not keeping her informed about the child’s health issues and her concerns about these including what she believes are alternative treatments. The mother’s second affidavit said the application was filed “as a result of the father failing to engage in family mediation”.
The mother says she’s concerned to get information about the child’s health as per the Orders and the need to do so is more vital than ever.
Given the focus of the mother’s affidavit on what the father has not done the bulk of the mother’s complaints are not appropriately dealt with by a rehearing.
In this case I am not satisfied there is a real likelihood that a change to the Orders would follow and even if such a change did follow it would not be of such scope as to warrant the imposition of further litigation upon this family and the child in particular.
Conclusion
Therefore having regard to:
a)the material of the mother taken at its highest;
b)the past circumstances;
c)the Orders;
the Court is not satisfied there is a likelihood the Orders could be varied in a significant way and/or the potential detriment to the child caused by embarking on a rehearing outweighs the need to consider doing so.
The mother’s application filed 23 November 2012 should be dismissed.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge O'Sullivan
Date: 18 April 2013
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