Evans and Evans

[2014] FCCA 822

FEDERAL CIRCUIT COURT OF AUSTRALIA

EVANS & EVANS [2014] FCCA 822

Catchwords:
FAMILY LAW – Children’s proceedings – final orders made in June 2013 – proviso attaching to orders was that father would commit to spending regular weekend time with the children concerned aged 8 & 6 – father has moved to Western Australia from (omitted) within weeks of final orders being made – mother asserts father agreed to final orders in bad faith – rule in Rice & Asplund – best interests of children – costs.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC

Cases cited:
B v B: Family Law Reform Act 1995 (1997) FLC 92-755
Russell & Russell & Anor [2009] FamCA 28
Rice & Asplund (1979) FLC 90-725
SPS & PLS [2008] FamCAFC 16
CDJ v VAJ (1998) FLC 92-828
In the Marriage of McEnearney (1980) FLC 90-866
Bennett & Bennett (1991) FLC 92-191

Applicant: MR EVANS

Respondent: MS EVANS

File Number: ADC 814 of 2012

Judgment of: Judge Brown

Hearing date: 8 April 2014

Date of Last Submission: 8 April 2014

Delivered at: Adelaide

Delivered on: 28 April 2014

REPRESENTATION

Counsel for the Applicant: In person (by tele-link)

Counsel for the Respondent: Mr Sim

Solicitors for the Respondent: Ryans Lawyers

ORDERS

1. The application filed on 4 December 2013 is dismissed.

2. The applicant father pay the mother’s costs of the application fixed in the sum of $500.00 (five hundred dollars) within sixty days of the date of these orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 814 of 2012

MR EVANS

Applicant

And

MS EVANS

Respondent

REASONS FOR JUDGMENT

Introduction

1. Ms Evans “the mother” and Mr Evans “the father” are the parents of X born (omitted) 2005 and Y born (omitted) 2007. 

2. The parties have known each other for many years, having met as teenagers, in Western Australia.  They are now both thirty years of age.

3. They began to live together in 2003; married on (omitted) 2006; and separated finally on 20 June 2011.  They are now divorced.  The mother has a child from an earlier relationship.  He is Z born (omitted) 2002.

4. Z lived with the father from the age of nine months.  As a consequence, Mr Evans treated Z as his own child.  However, when the parties separated, Mr Evans chose to have no further contact with Z.  Accordingly, parenting arrangements for Z are not directly affected by these proceedings. 

5. The mother began property proceedings in March of 2012.  The relevant asset pool was modest.  The major asset being a house in Property C which was heavily mortgaged.  There were issues arising concerning money owed to a relative of the father by the parties and how this was to be repaid. 

6. Mr Evans receives a disability support pension.  From time to time, he does (omitted) work.  Ms Evans receives Centrelink and engages in home duties. 

7. The Property C property was purchased through a loan for low income earners advanced by Homestart, together with other moneys provided by the father’s aunt.  Later, a caveat was placed on the property to secure legal aid funding advanced to Ms Evans.  Depending on how the calculations were done, there was a real risk that the parties had a negative equity in the Property C property. 

8. At separation, Ms Evans and the children continued to live at the Property C property.  However, she found it difficult to pay the mortgage payments required to Homestart.  Accordingly, she wanted the property to be sold and the parties’ debts, including to the father’s aunt, paid out.

9. In addition, in July of 2012, she amended her application to seek the court’s approval to live with the children in Perth, Western Australia.  The parties each continue to have strong family connections in that state.  They had moved to (omitted), as a family, from Western Australia, shortly after they had begun to live together, in 2003. 

10. Mr Evans wished to retain the Property C property.  Ultimately, orders were made enabling him to move back into the property, on condition that he paid all outgoings in respect of it, including the mortgage payments to Homestart and indemnified Ms Evans in respect of them. 

11. Importantly, Mr Evans also wished to prevent the children living away from (omitted), in Western Australia.  In particular, he wanted orders made allowing him to spend time with X and Y on alternate weekends.  In all these circumstances, particularly the difficult issue of relocation, the court made an order for X and Y to be independently represented. 

12. Around the time the parties separated, Mr Evans re-partnered.  His partner is Ms K.  Ms K has a daughter A, who is aged around ten.  Relations between the mother and Ms K are tense, as is the case so far as the parenting relationship between Mr Evans and Ms Evans is concerned. 

13. In October 2012, a family report was ordered, which was released in early January 2013.  The report was prepared by Ms L, a social worker with extensive experience writing reports for the court in respect of separated families. 

14. In December of 2012, orders were made, which saw the children living with their mother and spending alternate weekends, from 10:00am Saturday until 5:00pm the following Sunday, with their father, as well as each Wednesday evening.  At this stage, Mr Evans aspired to sharing the parenting of the children on an equal time basis, which was opposed by the mother. 

15. Ms L described Mr Evans as a polite and pleasant person, who had a slower than normal comprehension of questions asked of him.  A psychological assessment, provided to Ms L, indicated that Mr Evans suffered from a major depressive disorder.  As indicated above, Mr Evans has been in receipt of a disability support pension for many years.

16. In addition, the material indicated that Mr Evans suffered from a reading disorder, a mathematics disorder as well as a disorder of written expression. Earlier, he had been diagnosed with dyslexia and had a history of epilepsy.  Ms L assessed Mr Evans as having a limited capacity to readily articulate, in detail, his thoughts and ideas.

17. I agree with this assessment.  From time to time, Mr Evans has been compelled to act on his own behalf.  It has not always been easy to follow his various applications.  I accept that Mr Evans is disadvantaged in many ways, including financially. 

18. Mr Evans has always presented as being desperate to retain the Property C property, notwithstanding the limited equity in it and the difficulty he was likely to experience in servicing the mortgage on it.  In addition, it was difficult for him to correspond with the Legal Services Commission regarding the caveat lodged on the property. 

19. Ms Evans was only concerned about being free of ongoing exposure to legal liability for the property.  She wanted to end her financial relationship with Mr Evans.  In all these circumstances, there appeared little to be achieved by the parties in them proceeding to trial in respect of the property issues, but much to lose. 

20. Ms L described Ms Evans as a polite and pleasant person, who expressed no malice for Mr Evans.  She was however still devastated by the end of the marriage between the parties, which came as a complete shock to her, when Mr Evans announced to her the nature of his relationship with Ms K. 

21. Ms Evans indicated to Ms L that she was not in favour of a shared care arrangement, as she believed that Mr Evans would struggle to provide an appropriate level of care for the children.  It was Ms Evans’ perception that Ms K was the main proponent of such a regime.

22. Ms L assessed Ms Evans as being a person who placed significant emphasis on family, particularly her extended family who resided in Perth and (omitted), in Western Australia.  However, Ms L noted that Ms Evans also had good family support in the south east of South Australia, provided by a sister living in (omitted) and her mother and step-father, who lived in (omitted).

23. Ms L observed a strong level of affection between the mother and Y and X.  She also considered that X had a close attachment with his father, as did Y, but to a lesser extent.  Ms L considered that Mr Evans, due to his various disabilities, had problems communicating affection within relationships. 

24. In the summary to her report, Ms L noted Ms Evans’ continuing psychological shock at the end of the parties’ marriage and the subsequent deterioration in the parties’ parenting relationship occasioned by Mr Evans’s decision to withdraw from Z, which Ms Evans viewed as being emotionally devastating for Z.

25. Ms L also noted that relations between the parties concerned had gone from bad to worse, when the police had become involved in it, as a result of allegations and counter-allegations of stalking and assault by Ms K and Ms Evans towards one another.  Clearly, this dynamic was not assisted by Mr Evans’ application for shared care, which Ms Evans believed was orchestrated by Ms K. 

26. Given her view that the children had a positive attachment to their father, Ms L was not in favour of Ms Evans being able to relocate the children to Western Australia, particularly given Ms Evans’ level of support in (omitted). 

27. However, although Ms L considered that Mr Evans, in conjunction with Ms K, would be able to adequately care for X and Y, she viewed his lack of demonstrative physical affection for the children to be a noticeable shortfall in his parenting.  All in all, Ms L believed that Ms Evans was better placed to meet the emotional needs of the children. 

28. In his affidavit material, and to Ms L, Mr Evans indicated his concern that Ms Evans did not provide properly for the children’s care.  These concerns were not supported by Ms L, who was of the view that Ms Evans provided a very good standard of physical and emotional care for the children. 

29. In the conclusion to her report, Ms L wrote as follows:

    “Both parents clearly love the children. The children too like Ms K but there is no real evidence of strong attachment. In the writer’s opinion the children’s needs are best met overall by the mother. She has always been the primary care giver and appears to have continued to meet their needs very well. She is more responsive, more interactive and more nurturing. The writer considers that the children’s needs are best met by the children staying together and living with their mother and brother Z. There are no significant reasons for separating the siblings in their living arrangements.   

    X clearly loves his dad and is at an age where he would like to spend more time with him and this should be considered by the Court. Mr Evans also needs to understand that his consistent application to spending arranged time i.e. Wednesday evenings with the children is critical. X in particular is extremely disappointed when his father cancels out. Y too enjoys having contact with her father but is more attached to her mother. Both children enjoy their visits to their fathers and A is a strong ‘draw card’.”

30. In all these circumstances, Ms L recommended that X and Y continue to live with their mother and spend time with their father on alternate weekends, with X spending slightly more time with his father.  Ms L recommended school  holidays be divided, with Ms Evans being able to take the children to Western Australia, for a holiday, each year, but otherwise be restrained from relocating to Western Australia.

31. One of Ms Evans’ criticisms of Mr Evans was that he was unreliable in spending time with the children, particularly during school terms.  It was her perception that he did so only when it suited him.  This was difficult for her to plan around and was upsetting for the children, particularly X.  This was a theme taken up by Ms L.

32. This was the background to the matter coming on for trial, in Mount Gambier, before me, on 18 June 2013.  On this occasion, each of the parents was legally represented.  Ms A, a very experienced (omitted) family lawyer, appeared as the independent representative for X and Y. 

33. With the assistance of their respective barristers; input from Ms A; and the considered and extensive family report prepared by Ms L; the parties were able to agree on a comprehensive set of orders finalising both the children’s and property aspects of the case.

34. The orders on which the parties agreed were substantially along the lines recommended by Ms L.  In particular, Ms Evans agreed to abide by an injunction restraining her from moving the children’s place of abode from within a fifty kilometre radius of (omitted).  However, this injunction was to be discharged in the event that Mr Evans himself moved away from the town. 

35. The other parenting orders made were comprehensive, dealing with the exchange of parenting information pertaining to the children and the allocation of time with the children on special occasions, as well as with many other matters.  In the context of the current round of proceedings, the relevant orders are as follows:

    “1. That the parties have equal parental responsibility for the children X born (omitted) 2005 and Y born (omitted) 2007.

    2. That the children live with the wife.

    3. That the father spend time and communicate with the children as follows;

    a. Each alternate weekend from the conclusion of school Friday until 5pm Sunday commencing 28 June 2013, such time to extend to 5pm Monday in the event of a public holiday;

    b. Each Wednesday from the conclusion of school until 6:30pm;

    c. For one half of the short school holidays from 5pm on the last day of school term until 5pm on the middle Sunday of such holiday period PROVIDED THAT the father spend time with the children for at least 90% of the alternate weekends and Wednesday evenings, if the father fails to do so, then he cannot avail himself of the extended time during school holidays of the Orders 3(c) and 3(d);

    d. For one half of each of the Christmas school holiday period from 10am on the 31st of December 2013 until 5pm on 14th January 2014 and from 10am on 19th January 2014 until 5pm on the 26th January 2014 in the 2013/2014 school holidays and each alternate year thereafter and from 10am on the 1st Saturday of the Christmas school holidays in 2014 until 5pm on 31st December 2014 and from 10am on 12th January 2015 until 5pm on 19th January 2015 in the 2014/2015 school holidays and each alternate year thereafter;”

36. In terms of the property aspect of the case, it was agreed that Mr Evans would retain the Property C property, together with all debts associated with it.  In these circumstances, particularly that it appeared all issues outstanding between the parties had been consensually resolved, the parties’ respective applications were dismissed. 

The current applications

1. As noted above, one of the provisos attaching to the father spending time with the children, during school holidays, was that he spent significant periods of time, with the children, on weekends, during school terms. 

2. As detailed above, the rationale for this aspect of the orders was that, from Ms Evans’ perspective, Mr Evans had not always been committed to spending time with the children, which had led to them being disappointed, when their father failed to spend time with them. 

3. Ms Evans wished to avoid this occurring in future.  From her perspective, Mr Evans had sometimes chosen to spend time with X and Y, when it had suited him.  It is her case that she has consistently been the children’s primary carer.  This view was supported by Ms L.

4. On 4 December 2013, Mr Evans filed an initiating application, with the court, which he had prepared himself.  In this application, he sought the following orders, on both an interim and a final basis:

   “1.  Remove the wording “PROVIDED THAT the father spend time with the children for at least 90% of the alternate weekend and Wednesday evenings, if the father fails to do so, then he cannot avail himself of the extended time during the school holidays of the ORDERS 3(c) and 3(d) in paragraph 3(c)3 of the current final orders dated 18 June 2013.

   2.    Changing the wording of 3(d) to include 3 continuous weeks, starting 31 December 2013 and the first Saturday of the Christmas school holidays in 2014 and each alternate year after that.

   3.    Add to paragraph 5 – when the parties live in separate towns, and at the commencement of the fathers contact with the children, it is the mothers responsibility to take the children to the nearest capital city’s airport/train/bus station and the fathers responsibility for all transport organisation and costs of the children from that capital city to his place of residence. Upon conclusion of the fathers time with the children it is the fathers responsibility to take the children to the nearest capital city’s airport/train/bus station and the mothers responsibility for all transport organisation and costs of the children from that capital city to her place of residence.

   4.    Add to paragraph 11 – when the parties live in separate towns all communication is to occur via email only, unless in the event of an emergency involving the children then communication is to occur via text message.

   5.    Add a further paragraph – when the parties live in separate towns, the pick up and drop off times are disregarded and the days and dates remains the same.”

1. In support of his application, Mr Evans filed a brief affidavit.  He declined to provide an address other than the state of Western Australia.  He indicated that he wished to withhold his address from Ms Evans for his own protection. 

2. He further deposed that he was now a resident of Western Australia and had been for several months.  For this reason, he wished to remove the requirement that he spent ninety percent of alternate weekends and Wednesday evenings with the children, prior to spending time with them in school holidays.

3. Mr Evans’ application was directed towards the then forthcoming December/January school holiday period.  By necessary implication he conceded he had not been spending time with the children regularly since the orders of 18 June 2013 were made, hence the need to modify the orders.

4. In his affidavit material, Mr Evans provided no explanation as to why he had moved away from (omitted), or precisely when this relocation had occurred.  Given his previous stance in the matter, particularly his opposition to Ms Evans moving with the children to Perth and his dogged determination to retain the Property C property, this seemed unusual. 

5. As already indicated, Mr Evans provided no detail as to where in Western Australia he was currently living.  Further he did not provide any fleshed out proposals as to how the children would actually move between their parents’ respective homes, if his proposal was acceded to.  It is apparent to me that the parties have little, if any, facility to communicate effectively with one another.  Neither is in a strong financial position.

6. It was not possible for Mr Evans’ application to be dealt with prior to Christmas 2013.  The Adelaide Registry of the Court allocated 17 February 2014, in the court’s sittings in Mount Gambier, as the first return date of the case.  On this occasion, Mr Evans appeared on his own behalf by telephone.  Ms Evans was represented by her longstanding solicitor, Mr Sim of (omitted). 

7. Ms Evans had not formally responded to the application by 17 February.  Her solicitor however indicated that she wished to seek the dismissal of Mr Evans application on the basis that it was oppressive to her and not calculated to be in either X or Y’s best interests for there to be further litigation regarding their care, given the lengthy litigation which had only recently be finalised. 

8. In addition, Ms Evans raised concerns regarding Mr Evans’ bona fides and suggested that he had been planning to move to Western Australia around the time of the negotiation of the final orders made in June of 2013 and accordingly he had never intended to follow them.

9. In all these circumstances, orders were made for Ms Evans to file answering material and the matter was adjourned until 8 April 2014.  Ms Evans has now filed a formal response and an affidavit in support.  As foreshadowed on the earlier occasion, she seeks the summary dismissal of Mr Evans’ application and that he pay her costs. 

1. In her affidavit in support of this application, Ms Evans deposed as follows:

   ·    On 18 June 2013, both she and Mr Evans had been represented by counsel and had engaged in lengthy negotiations, with one another and indeed with the independent children’s lawyer;

   ·    From her perspective, she had entered into these negotiations in good faith;

   ·    Notwithstanding her intention to negotiate in good faith, it is Ms Evans’ position that Mr Evans did not share her bona fides;

   ·    Rather, it is Ms Evans’ current assertion that by 18 June 2013 Mr Evans and Ms K had already crystallised an intention to move to Western Australia with A. 

   ·    In support of this assertion, she has provided a copy of A’s school newsletter dated “Term 2 Week 7” which indicated that the class was saying “goodbye to A”. 

   ·    In addition, she asserts that it came to her notice that Mr Evans and Ms K advertised a moving sale, on the internet, to be held at the Property C property. 

2. In all these circumstances, Ms Evans was concerned on 18 June 2013 that Mr Evans was intent on moving away from (omitted) shortly.  As a consequence, she instructed her solicitor to inquire of those advising Mr Evans as to what his intentions in this regard were.  Ms Evans deposes that she was informed by her lawyer that Mr Evans had instructed his solicitor that he was not relocating. 

3. Pursuant to the orders of 18 June 2013, Mr Evans was to collect the children from school on 20 June and return them at the commencement of school the following day.  However, Ms Evans deposes that the father failed to deliver the children to school, as required.  Rather, he elected to spend the day with them and Ms K, in the shopping centre of (omitted). 

4. When Ms Evans learnt of this, she confronted the father in the shopping centre and engineered the return of the children to her care.  She asserts that she was fearful that Mr Evans was planning to leave (omitted) with the children.

5. A few days later, she received a telephone call from a counsellor, at the children’s school, who advised that the father and Ms K had attended at the school to say goodbye to X and Y as they (the father and Ms Evans) were leaving to live in Western Australia.  The counsellor reported the children as having been “upset but okay” about this meeting.

6. As a consequence of these matters, Ms Evans deposes as follows:

   “The applicant was aware at the time of consenting to the final orders of his intentions to relocate to Western Australia some 8 days later.  He entered into the Final Consent Orders while legally represented.  He provided false instructions to his legal representative.  As the applicant was aware at the time of consenting to the Final Orders that he was relocating to Western Australia shortly thereafter there has not been a significant change in circumstances to enable the Court to amend the Final Consent Orders.  Accordingly, I seek an Order that the Application be summarily dismissed.”[1]

   [1]  See mother’s affidavit filed 19 March 2014 at paragraph 11

7. These reasons for judgment are essentially directed to this application.  Mr Evans has filed no further affidavit material.  He continues to represent himself in the proceedings.

The hearing of 8 April 2014

1. My impression is that it was not easy for Mr Evans to represent himself in court.  These difficulties were compounded by the necessity for him to attend court via the telephone.  In addition, he had not provided any lengthy affidavit material in support of his position nor specifically answered the allegations raised by Ms Evans.

2. He did however answer the questions I put to him.  He did so bluntly and with little elaboration, confirming Ms L’s view that he has problems with abstract expression.  He said he had moved to Western Australia to look after a sick aunty.  When pressed, he indicated that she had recently had an operation on her knee.

3. He also conceded that the aunt in question had other relatives available to provide care for her.  Certainly it did not appear to be the case that she was suffering from any terminal condition or was otherwise bereft of support.  Mr Evans further confirmed that he continued to be in receipt of Centrelink payments.  Accordingly he had not moved to Western Australia to pursue employment opportunities.

4. Although unwilling to provide his exact address, Mr Evans indicated that he was currently living in Perth, the location to which Ms Evans had wished to relocate the children and which he had fervently opposed. 

5. Ms Evans and the children had been in (omitted) during the Christmas period of 2013/14.  Mr Evans had been aware of this and had made overtures to her to see the children there.  Ms Evans had apparently only been willing to allow the children to see their father in a supervised setting, which Mr Evans perceived to be both oppressive and unnecessary and which he had declined.  Accordingly, he conceded that he had not seen the children for a period approaching nine months.

6. Mr Evans’ position can be easily summarised, using his own words.  He wanted to see his kids and it was unfair that he was not able to do so merely because he had moved and had not seen them for a few months.  His evidence was an inchoate plea in this regard.  I do not doubt for a moment his interest and affection for the children.

7. In these circumstances, I found the case completely perplexing.  It seems clear to me that Mr Evans was intent on moving around about the time the orders of 18 June were negotiated.  Accordingly a significant component of the orders had the potential to be rendered essentially otiose by his move. 

8. Yet Mr Evans nonetheless agreed to the orders, which are clearly predicated on the basis that he, Ms Evans and the children would continue to live in the (omitted) area for the currency of the orders.  Notwithstanding her suspicions to the contrary, this was also the basis on which Ms Evans ostensibly approached finalising the matter.

9. In this regard, I accept her evidence that she sought from Mr Evans his assurance that he was not planning to move from (omitted) prior to proceeding with the settlement negotiations with him.  However, given her suspicions she considered it expedient to require the condition created by order 3(c) to be inserted in the final settlement document.

10. Given the contents of Ms L’s report, I was content to make the orders of 18 June, as I considered that they would best serve the interests of X and Y on the basis of the evidence then available to me.  The children had always lived in (omitted) and would continue to do so. 

11. Importantly X and Y would continue in the predominant care of their mother, whom Ms L assessed as a dedicated and thoughtful parent.  They would also spend substantial and significant time with their father.  The orders were supported by the independent children’s lawyer, whom I understood had been influential in their formulation.

12. At the time I was well aware that relations between the parties had been and continued to be extremely strained.  Prior to the trial, Mr Evans had, from time to time, been self-represented and in this capacity had made several applications to the court, seeking to spend more time with the children, particularly in school holidays.  This situation provided one of the bases for the independent representation of the children.

13. Invariably these applications had been lodged at the last minute, which confirmed my impression of Mr Evans that he is not particularly adept at long term planning.  I also do not consider him to be an extraordinarily cunning or tricky person.

14. When the orders were made, neither party alluded to the possibility that one of them was at least contemplating leaving (omitted).  If this had been so, I would not have made the orders in question and I doubt that Ms A would have advocated them. 

15. In the circumstances pertaining at the time (and now) it was evident to me that the capacity of the parties to manage arrangements for the children over distance was extremely limited.  They communicate poorly and have limited finances.  As such, it seemed to me opportune that Ms Evans had abandoned her aspiration to relocate X and Y to Western Australia.

16. It would appear to be Mr Evans’ understanding that he would be able to rely on the portions of the orders which suited him, namely the provisions for school holidays, regardless of any change of circumstances.  Neither party has provided me with any current evidence regarding the emotional circumstances of the children.

17. As Ms L notes, X, in particular, has been discomforted by the failure of his father to commit to spending time with him in the past.  I have not been advised how both he and Y reacted to their father’s announcement, made to them at school, that he was immediately relocating to Western Australia.  The only evidence available comes second hand from the school counsellor that they were “upset but okay” about it.

18. It also clearly appears to be the case that Ms Evans wished the orders to be predicated on the basis that it would be a necessary correlation of her being restraining from moving from (omitted) that Mr Evans would commit himself to seeing X and Y regularly during school terms.  Given the contents of Ms L’s report, this was not an unreasonable position for her to adopt.

19. Without wishing to cause any offence to Mr Evans, he is not a sophisticated person, certainly not where legal matters are concerned.  He appears bemused that the court would not automatically make the orders which he seeks.  From his point of view, it is largely an administrative task that the condition requiring him to spend regular time with the children, prior to any holiday time with them, is deleted from the relevant order.

20. However, from the perspective of the court, there is no independent assessment of how the children will cope with this new scenario and importantly how the parties themselves will deal with the logistical issues arising.  As such, in my assessment, it is not a simple administrative matter. 

21. Rather it is a difficult and perplexing matter, particularly given the opposition Mr Evans had to the children moving to Western Australia, with their mother, which he himself has done only days after final orders were made.  It is also one which must be approached from the perspective of the children’s best interests.

22. On the one hand X and Y know their father well and in mid-June of 2013 all agreed that they would benefit from spending regular periods of time with him.  This was based on the assumption that father and children would be living in proximity to one another.

23. All that has changed with Mr Evans’s move, which appears to have occurred clandestinely and without an opportunity for its implications to be properly assessed by the court and the independent children’s lawyer.  Ms Evans asserts that no fault can attach to her in this regard.  Her evidence is that she formally asked Mr Evans what his intentions were and settled the case in reliance on what he told her. 

24. She is now exhausted, both emotionally and financially, by the litigation so recently concluded.  In these circumstances, she is vehemently opposed to there being yet another round of litigation occasion by what she would categorise as the father’s narcissistic manipulation of her, the children and the court process.  As such it is her position that it would be contrary to the children’s best interests for the court to countenance further litigation now, based on the uncertain evidence of the father.

The legal principles applicable

1. Part VII of the Family Law Act 1975 deals with orders relating to children. Before making any particular parenting order, the court must regard the best interests of any child concerned as the paramount consideration [Family Law Act section 60CA].

2. The matters which the court must take into account, in deciding how a child’s best interests are to be served, are set out specifically in the Act in section 60CC.

3. Section 60CC creates two classes of considerations which apply to the court’s determination of how a child’s best interests will be determined in proceedings before it – primary considerations and additional considerations. There are two primary considerations, which are set out in section 60CC(2)(a)(b) namely:

   (a)     the benefit to the child of having a meaningful relationship with both of the child's parents; and

   (b)     the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. 

4. Prior to recent legislative amendments, these considerations were not formally ranked in regards to one another.  They have been referred to, in a number of decisions of the Family Court, as “twin pillars”, the importance of which depends on the circumstance of the case concerned. 

5. However, as a result of the insertion of section 60CC(2A) into the Act, the court is now directed, in applying the primary considerations “to give greater weight” to the primary consideration relating to the need to protect children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

6. Other specific criteria, relating to how the court is directed to consider how the best interests of any children concerned may be served, by any order which is made, are set out in section 60CC(3). There are fourteen such criteria, which are categorised as being additional considerations.

7. Pursuant to section 60CC(3)(m) the court is empowered to have regard to any other fact or circumstance, which it considers relevant. This ensures that the infinite variety of individual children’s circumstances may be addressed in any order which the court makes.

8. Although the court is directed to consider many factors, in discharging its duties under Part VII of the Act, the best interests of the children concerned remain paramount.  The court’s duty is to deliver individual justice, for the child affected, in every case.[2]  

   [2]  See B v B: Family Law Reform Act 1995 (1997) FLC 92-755

9. In this sense, the court’s inquiry is a “positive one tailored to the best interests of the particular children and not children in general …”[3] As such the various factors, in section 60CC, are inclusive but not exclusive of one another.[4]  

   [3]  See B v B: Family Law Reform Act 1995 (ibid) at 84,220

   [4]  See Russell & Russell & Anor [2009] FamCA 28 at [141] per Ryan J

10. The fundamental task for the court is to determine, bearing in mind all the considerations contained in section 60CC and bearing in mind the goals and principles contained in section 60B, what is the best outcome for any child concerned, both now and in the future.

11. In this case, although he does not articulate it as such, Mr Evans’ position is predicated on the basis that X and Y will benefit from having a meaningful level of relationship with him and this militates in favour of the variation of orders proposed by him, necessitated by his move to Western Australia.

12. Ms Evans, by necessary implication, asserts that it would not be in X and Y’s best interests for there to be yet more litigation arising in regards to their on-going parenting, in the light of what she would characterise as disingenuous and unilateral behaviour on Mr Evans’ part and a lack of clear evidence from him regarding the logistical implications of his now radically changed circumstances for the children.  In this regard, she invokes what lawyers invariably categorise as the rule in Rice & Asplund. [5]

The application of the rule in Rice and Asplund

[5]  See Rice & Asplund (1979) FLC 90-725

1. As indicated above, in all matters concerning parenting orders, the best interests of the children concerned is the paramount consideration for the court.  As the circumstances of both parents are liable to change from time to time, parenting orders are never final in the sense that the court always retains a jurisdiction to deal with such changed circumstances.

2. However, some degree of change is a necessary corollary of life and should not of itself allow parenting orders to be easily revisited.  Otherwise to allow further applications, on the basis of a change of circumstances alone, would be likely to be an invitation to never ending litigation. 

3. For that reason, a court will not readily re-open a case concerning parenting orders recently made.  There needs to have been a substantial change in circumstances before a court will do so.  This is the basis of the rule in Rice & Asplund. It is an expression of the paramountcy rule arising from section 60CA.

4. The primary purpose of the rule is to prevent “endless litigation”[6] and is based on three main pillars.  Firstly, finality of litigation avoids expense to the public occasioned by “subsequent hearings and the imposition of them on court time”[7].

   [6] See Rice & Asplund (supra) per Evatt CJ at 78,905

   [7] See SPS & PLS [2008] FamCAFC 16 at paragraph 56

5. Secondly, the imposition of the rule avoids the potential “evil” of one judicial officer substituting his or her “opinion of what is in the best interests of a child” for that of another judicial officer, on the basis of the same factual circumstances.[8] 

   [8] Ibid at paragraph 58

6. Human nature being what it is, it is inevitable that some litigants will want their cases reheard in the hope that a different adjudicator will reach different conclusions about the evidence led.  The rule negates this potential outcome.

7. Thirdly and most importantly, generally speaking, it is not in the interests of children to have repeated applications before the court concerning arrangements for their living arrangements.  Litigation is not helpful to children. 

8. It is desirable that arrangements for their care be stable and so final.  For obvious reasons, children are not well served by frequent displacements or being subject to uncertainty about where they will be living in future.[9]

   [9] See CDJ v VAJ (1998) FLC 92-828 at 85,449

9. In addition, if the court allows parents to have frequent recourse to litigation to settle disputes between them regarding parental arrangements, it is likely to have significantly harmful psychological consequences not only for the parents themselves, but especially their children.  It has been said that the court should not condone a “perennial football match between parents, who … seek to canvass again and again the question of custody of a child …”.[10]

   [10] See In the Marriage of McEnearney (1980) FLC 90-866 at 75,499 approved in SPS & PLS (supra) per Warnick J at paragraph 57

10. It is clear from authority that a court, such as this one, has a discretion to determine whether there has been a sufficient change of circumstances, to justify the reopening of the parenting issues in respect of a child, which have earlier been determined, as either as a discrete or preliminary issue, or after a full and exhaustive hearing of all the available evidence.[11]

    [11] See Bennett & Bennett (1991) FLC 92-191 at 78,262

Conclusions

1. The litigation between the parties has been on foot since March of 2012.  Much of the delay is attributable to the fact that Mr Evans, from time to time, has represented himself.  He has also been inconsistent in respect of his attitude to the children.  Without doubt the proceedings have consumed much court time, largely to accommodate Mr Evans.

2. The proceedings have been financially and emotionally burdensome for Ms Evans, who has been represented throughout.  In addition, the children have been independently represented.  I am not privy to how the costs of the independent children’s lawyer will be borne but, given Mr Evans’ financial circumstances, it seem likely that the public purse will at the very least bear a significant proportion of these costs.

3. I am satisfied that Mr Evans has behaved capriciously in respect of the recently made orders of the court.  In such circumstances, it would be both unfair to Ms Evans and contrary to public policy to allow Mr Evans to revisit easily the earlier made orders, particularly when he has provided no viable explanation as to why he did not raise the issue of his return to Western Australia earlier or, more fundamentally, he has provided no reason as to why his relocation could not have been deferred, as he argued so vehemently would be appropriate so far as Ms Evans was concerned.

1. The only justification for re-visiting the earlier orders is the best interests of X and Y, particularly their entitlement to have a meaningful level of relationship with their father, a factor which was considered likely to be beneficial to them, when Ms L provided the family report and the final orders of 18 June 2013 were made.

2. However Mr Evans has provided scant detail as to how he proposes the children will travel to Western Australia.  In addition, there is no assessment of the possible psychological impact on the children of Mr Evans having so abruptly withdrawn himself from their lives.

3. For readily understandable reasons, given her previous experience of Mr Evans involvement with the children, Ms Evans sought that the final orders concerned should mandate a requirement that the father commit to spending weekend term time with the children.  Ostensibly Mr Evans agreed to this order, which had the imprimatur of the independent children’s lawyer.  Subsequently it was ratified by the court as being in the best interests of the X and Y.

4. In all the circumstances of the case, I do not consider that it would be in either X or Y’s best interests for the court to countenance another round of proceedings concerning their parenting, given Mr Evans’ unilateral and capricious behaviour so soon after final orders were made.

5. Both Ms Evans and the children are entitled to have settled arrangements for their care, not ones subject to significant revision as a consequence of an agenda kept secret by Mr Evans.  Accordingly, I have come to the conclusion that Mr Evans’ application must be dismissed.

6. Ms Evans seeks an award of costs.  Mr Evans has been wholly unsuccessful in his application.  Ms Evans is not in a strong financial position.  She has been involved with litigation with Mr Evans for a period in excess of two years.  She has been legally aided from time to time.

7. I also accept that Mr Evans lacks financial resources.  He is not currently working and suffers from a significant level of disability.  However, in my view, it is incumbent on the court to point out to Mr Evans that his behaviour, so far as litigation conducted before it is concerned, can have financial consequences.

8. In these circumstances, I will order that Mr Evans pay Ms Evans’ costs fixed in the sum of $500.00 within sixty days of the date of these orders.

9. For all these reasons the orders of the court will be as set out at the commencement of these reasons for judgement.

I certify that the preceding one hundred and fourteen (114) paragraphs are a true copy of the reasons for judgment of Judge Brown

Associate: 

Date:       28 April 2014