Fante and Joyce (No.1) - [2012] FMCAfam 741

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FANTE & JOYCE (No.1)

[2012] FMCAfam 741

FAMILY LAW – Parenting – preliminary consideration o f whether there have been changes in circumstances of a significant and substantial nature – whether such considerations can be determined on an issue by issue basis – application of the ‘Rule in Rice and Asplund’ – determination that such an approach is open and appropriate in certain circumstances – application of such an approach in relation to each party’s order sought – consideration of the evidence relied upon and whether it was sufficient to determine if the onus to satisfy the court in the first instance had been met – dismissal of response and determination to proceed with application – consideration of whether form utilized in the application to include all orders in one order opens all orders to redetermination – rejection of that argument.

Rice and Asplund (1979) FLC 90-725
Freeman & Freeman (1987) FLC 91-857
Reid & Lynch (2010) FLC 93-448

Applicant:

MS FANTE

Respondent:

MR JOYCE

File Number:

BRC 13170 of 2007

Judgment of:

Coker FM

Hearing date:

9 July 2012

Date of Last Submission:

9 July 2012

Delivered at:

Brisbane

Delivered on:

9 July 2012

REPRESENTATION

Counsel for the Applicant:

Ms JD Hogan

Solicitors for the Applicant:

Murdochs

Counsel for the Respondent:

Mr Cooper

Solicitors for the Respondent:

Charles Cooper Lawyers

ORDERS

That the Amended Response filed by the Father on 25 May 2012 be dismissed.
That the Amended Application filed by the Mother on 15 May 2012 proceed.

IT IS NOTED that publication of this judgment under the pseudonym Fante & Joyce (No.1) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BRISBANE

BRC 13170 of 2007

MS FANTE

Applicant

And

MR JOYCE

Respondent

REASONS FOR JUDGMENT

On 7 November 2008, nearly four years ago, I made orders with regard to arrangements in relation to the parenting of the child [X]. [X], at that time, was about two and a half years of age. She is now a little over six and, unfortunately, difficulties have continued to exist with regard to arrangements in relation to decisions with regard to [X] and her future parenting. The parties to the relationship, Ms Fante and

Mr Joyce, have unfortunately remained at loggerheads in respect of many issues in relation to [X]’s parenting.
As a result of various orders that have been made by me and by others, there have been further other steps taken in relation to proceedings and, in particular, an application which was originally brought by Ms Fante, whom I shall for convenience refer to as the mother, sought orders with regard to variation of orders that had been put in place with regard to [X]’s time to be spent with the father. The application was dismissed under what is commonly referred to as the rule in Rice and Asplund.
The matter was appealed and, as I understand it, the decision of the Full Court was to the effect that the matter was not, at least initially, dealt with on a proper basis and it was directed to be listed for rehearing. The parties have proceeded upon that assumption and a number of applications and amended applications have been filed, culminating in the proceedings that are now before the Court.
What has arisen, however, as a preliminary issue, is that the mother has sought to pursue the issues in respect of a variation of the time on a week-to-week basis that is spent by [X] with the father, and the father has sought other orders in relation to arrangements with regard to parenting.
It was submitted to me that they could be broken down into four distinct headings or areas, the variation of the current orders regarding time to be spent by [X] with each of her parents, including, particularly, weekend time during the school terms, as well as, issues with regard to parental responsibility, orders having been made in 2008 for the mother to have sole parental responsibility. The father is seeking, as he did at the commencement of these proceedings some years ago, to have equal shared parental responsibility.
Additionally, the two other issues that arose related to the point of changeover and the circumstances of changeover, it being previously ordered that changeovers be facilitated with the assistance of the mother’s parents so that there was not a need or requirement for the parties to come into communication with each other, and, finally, the continuation, the mother says, of various injunctions which were ordered by me on 20 October 2011. The father’s position in that respect is to say that those injunctions should be uplifted.
Counsel for the mother says that the rule in Rice and Asplund can be apportioned or applied on a point-by-point basis. In other words, where there is evidence of a substantial or significant change in respect of arrangements with regard to the parenting of the child, then those issues might necessarily be the subject of evidence being called and a redetermination, if found to be appropriate, of such issues. But in other areas, and she points particularly to the areas that are raised on the part of the father, that where there is no information in the first instance with regard to a substantial change in circumstances, then they could be, on an item-by-item basis, dealt with preliminarily as a determination in respect of whether there is a substantial change.
It is, with respect, I was going to say a novel application, but I don’t think that is the correct terminology. It is an application that I have not heard put before, but I must say that it does not necessarily strike me as novel, particularly where, as is emphasised by counsel for the mother, the various applications made by the mother and the father for changes can be hived off into separate compartments.
Accordingly, it is necessary to look at each of the variations or changes that are sought by each of the parties and to consider whether they fall within the ambit of what might be considered appropriately able to be dealt with, either on a preliminary basis, considering the rule in Rice and Asplund, or otherwise.
In that regard, I have taken the opportunity, as is necessary on many occasions, to go back to the legislation, but also, more particularly in relation to this issue, back to the various decisions that have been made in respect of the reopening or reconsideration of issues with regard to parenting.
I am mindful of the statement made in Rice and Asplund at pages 78,905 and 906, where Evatt CJ in the case commented upon the basis upon which a court would reconsider such matters. There, her Honour said, and it was supported by Pawley SJ and Fogarty J, the following:
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, 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.
In other words, there is an onus that arises in relation to the determination of former matters that come back before the Court. I note that in the CCH handbook at volume 1, page 13,391, the learned authors comment:
While there will certainly be an onus on the applicant to demonstrate in this regard that there exists such a change in circumstances as to warrant the reopening of a residence issue, there will be no further onus on him –
or, I assume “her”, of course –
to demonstrate positively that a change in residence is then necessary;…
In other words, there is clearly an obligation that arises to show, at least on the material that is filed by the person seeking variation, that there has been some change or substantive variation in the circumstances that existed at the time that the orders were made. Clearly, there has been much spoken of and written in relation to the subject. I note that Strauss J, commenting upon the circumstances that arise in relation to such issues, noted in Freeman & Freeman (1987) FLC 91-857, at pages 76,470 to 76,471, the following:
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.
Another important reason for approaching with some care an application to overturn such a recent order is that the proper and orderly administration of the law in the community of which these children are part requires that orders made in this jurisdiction should not be overturned unless sufficiently weighty new facts and circumstances are shown to exist which throw sufficient doubt on the desirability of continuing the custodial arrangements brought about by the order. Each case must depend on its own facts, but, as a general proposition, it might be said that those new facts and changed circumstances should be such as to necessitate a fresh investigation to safeguard the best interests of the children.
Quite clearly, the ruminations of the various judges of the Full Court, have been, over some considerable number of years, now, to look at the requirements of at least showing, on the face of it, that there are issues which require a fresh consideration, because they are of such a significant nature or degree that they affect the operation of the orders that were previously made or, perhaps more particularly, seen to have an affect upon the children, who are the subject of the operation of those orders.
I note that I was referred to the decision of the Full Court of the Family Court in Reid & Lynch (2010) FLC 93-448, where the Full Court considered the application of the principles in Rice and Asplund. In that case, the Full Court was dealing with an appeal by a mother against parenting orders that had previously been made by a federal magistrate. The notation contained within CCH volume 1, page 13,393, is to the following effect:
The mother submitted that the federal magistrate erred in not dismissing the father’s application having regard to the principles, a consent order having been made prior to the father’s application. The appeal was allowed and the father’s application was dismissed as he had not established that there was a significant change in circumstances or that there was a material factor not then disclosed.
Clearly in more recent time the Full Court of the Family Court has turned its mind to the various matters that arise in Rice and Asplund and have, at least to some extent, considered that there needs to be a more complete recitation of what are the changed circumstances that are relied upon by the party seeking variation so that there can be, on the face of it, a consideration of whether there has been substantial or significant change.
I have been the judicial officer involved in relation to this matter since the initial decision made in 2008. Leanne Turner FM also had some involvement in relation to the proceedings, but it was only on one occasion and thereafter the matter has remained in my docket. It is important that that be noted because, of course, it is important that there be an understanding of the prior history and the findings that have been made in relation to various matters so as to bring into context what might be suggested to be the changes that have occurred, in relation to the various issues.
It is noteworthy that writings by the Full Court in relation to the various cases, have come to the general presumption that it is necessary for the judge in the later case, to consider the reasons for judgment in the earlier case. In this instance, it is a little easier because it remains in my docket and I am obviously aware, having been referred in submissions to the previous findings that I made in relation to this matter, but also I have taken the opportunity to read the material that was referred to in the case outlines by both parties, and that included the reasons for judgment given by me in 2008 and in 2011.
It is important that there be evidence, therefore, which is sufficient to at least satisfy me that there have been changes of a substantial or significant nature, such that it is appropriate to consider the variation of the orders that are sought.
It is therefore significant that it is argued on the part of the mother, that there is not substantive information available in respect of the variations that are sought by the father, in relation to parental responsibility, the point of changeover and the persons involved in changeover, and the previous injunctions that have been made by me, which the father says should be uplifted.
That needs to be counter-balanced against the fact that the solicitor advocate for the father says that, similarly, there has not been sufficient change in relation to circumstances with regard to the child and the time spent with the father, that there should be a variation of the orders.
There is, however, a distinction to be drawn between the positions of each of the parties in relation to the matter, in that the mother’s material details at length, the effects that she says substantially and significantly reflect upon both the parents but, more particularly, upon [X] and how she reacts to what are suggested to be difficulties arising from only having weekly time with the mother and no opportunity during any school term to spend weekend time with the mother. Additional to the lengthy statement in relation to that contained within the mother’s trial material, there is also, as a result of previous orders and directions that were made, reports addressing specifically those issues in respect of the matter.
From the father’s perspective, however, it is simply suggested that there needs to be a change in other arrangements with regard to parenting. For example, with regard to the decision making process in relation to parental responsibility, a well as the point of changeover and the uplifting of the previous injunctions made in relation to the matter.
Insofar as parental responsibility is concerned, the father’s position in relation to the matter, as best I can understand the material, is simply to say that it is not in [X]’s best interests that there should be sole parental responsibility vesting in the mother, because it excludes him from the important aspects of decisions to be made in relation to the child. The orders that were made with regard to sole parental responsibility in 2008, did require the mother’s consultation and communication with the father, in relation to such issues.
As is understandable, I was referred by counsel for the mother to various findings that I made within the reasons that were handed down on 7 November 2008. Counsel referred me to a multitude of paragraphs contained within those reasons but, in the end, referred specifically to the findings that were made by me as culminating at paragraph 217 of the reasons. There, I said:
In this particular instance, due to the degree of distrust and to the serious psychological issues that affect both the mother and the father and, in particular – unfortunately I must say – the father, insofar as the degree of his distrust not only of the mother and of her family but of suspicions of the world in general, particularly as were elaborated upon by Dr H, I am not of the view that equal shared parental responsibility is an appropriate course.
The more recent material that has been filed in this matter does nothing to assuage the concerns that I had at the time, in relation to that matter. The parents still communicate appallingly with each other. Each blames the other for the difficulties that are inherent in that. Having read the affidavits that each have filed for the hearing in relation to this matter, it is clear that the manner of communication is almost entirely unworkable and tragically, it has now gotten to the stage where there are suggestions that [X] is being used as the message-carrier on behalf of one or other or, perhaps, both of the parties.
It is a dreadful situation. But it certainly reflects the degree of concern that I had nearly four years ago in relation to the matter, and every skerrick of evidence in relation to this proceeding would emphasise that, if nothing else, the situation has deteriorated.
In fact, nearly three years after the original decision was made in November of 2007, I made another decision in relation to the matter which lead to the making of the various injunctions in relation to the matter and, in particular, that arose primarily from the concerns that were expressed by Dr H, in relation to a further investigation of the concerns that each party expressed in relation to the other and to their behaviours towards each other and, more particularly of course, toward [X].
As a result of the concerns that were expressed there, I made orders in relation to various restraints be placed upon the father. The mother says that those restraints, as contained within the outline that has been provided at orders 25 through 28, should continue.
They relate to the attendance with or presentation of the child to medical practitioners, allied health professionals or mental health professionals, as well as, more specifically, attendances at police or Department of Communities Child Safety Services offices, as well as attendance to question various persons in authority, such as schools, afterschool care, and the like, as well as a general restraint in respect of non-denigration.
Nothing contained within the current material gives rise to any suggestion that the concerns that gave rise to those orders being made in October 2011 have, in any way, been alleviated. It was suggested to me in submissions on the part of the mother that there was nothing in the material on the part of the father that indicated, for example, that he had, as Dr H suggested, dealt with some of the issues in relation to therapeutic involvement of professionals to help him deal with the rigid stance that he took in relation to various issues with regard to the mother and also, it would seem, with regard to parenting.
If anything, there appears simply to be continued distrust and continued concern on the part of the father, and the best that I can draw, with respect, from the material on the part of the father, is to say that because in the last nine months or so there have not been any reoccurrences of attendances with various persons in authority or government agencies, that there could be reliance placed upon him not doing so in the future. Unfortunately, all that has happened so far is that the father has, quite properly, complied with the injunctions that were issued in relation to the matter.
There is nothing else, other than the compliance with an order, that would suggest that there has been a change in the father’s actual manner and concerns in relation to the mother, her household, extended family and the behaviours that are directed toward the child.
Similarly, the father, I think, with hope triumphing over experience, suggests that the most appropriate arrangements in relation to handovers would be for there either to be handovers at school or, on any other occasion, that there be arrangements with regard to the mother and the father being involved in the changeovers.

The father says that it would, if anything, give them an opportunity for communication, but every indicator arising from the material that is before me, either being the affidavits that the parties have provided or, in fact, the expert evidence in relation to the matter, is that communication is poor, and that there is every opportunity taken, no doubt by both parties, to find the worst possible connotation that can be drawn from what one parent might or might not say, in relation to the matter.
I do not need or intend to go through the various positions taken by each of the parties in relation to the matter, though I note that counsel, for example, referred me to the concerns that were expressed by the mother in relation to what she says were issues raised by the teachers in respect of [X] not eating at school. The father’s response in relation to that was rather off-hand and, I thought, inappropriate, but what is clear is that the parties do not communicate, and they do not deal with each other well.
To suggest, as the father does, that the parents be forced to come together for the purposes of handover is, as I say, a triumph of hope over experience. It is not something that would work and, unfortunately, ultimately it would only lead to further hurt to this little girl, because clearly, where the parents are in the presence of the child and are unable to deal civilly, courteously or appropriately with each other, and that was my view in 2008, and appears clear on the evidence to remain the situation, then there is no benefit to the child in relation to that occurring.
Suffice it to say, therefore, that as I am required to come to a decision in respect of the application that is made with regard to dealing with the orders that are sought by the father which are variations or changes of the orders some of which have been in place for nearly four years, and in relation to the injunctions, nearly one year, I am not at all satisfied that there has even been a cursory attempt on the part of the father to show that there has been substantive or significant change, in relation to such issues.
I am not, therefore, of the mind that there is any basis upon which there could or should be opportunity given for the rehashing or redetermination of issues which had been the subject of significant consideration and determination in the past. I do not intend, therefore, to grant leave to proceed with the variations that are sought by the father in relation to this matter.
Before finalising these reasons, there are two other matters that I need address, in relation to these proceedings.
The first is the submission that was made on the part of the father, that all matters in relation to these proceedings became live when the amended application was filed by the mother, in which she sought to encapsulate within the orders to be made the entirety of the orders that she considered appropriate in relation to the child, though it was clear that many were, in fact, simply a recitation of the orders that had previously been made, either in November of 2008 or in October of 2011.
To suggest that that would be a basis upon which everything could be reconsidered, in relation to arrangements with regard to the parenting of any child, simply because it was proposed that there be some small variation, but that any change, for convenience, be included in a new order to include the variation if it were made, and that therefore there be simply one document to be relied upon, means that all issues are live in their entirety is, I would think, a difficult argument to present.
When one goes back to what was said by the Full Court in Rice and Asplund and which has been repeated over and over in relation to proceedings with regard to the parenting of children, it is clear that the Court should not lightly entertain an application to reverse an earlier order.
To suggest that simply seeking to include all parenting orders in one document is a basis upon which that guidance of the Full Court, not to re-entertain applications is overcome is, with respect, not an application or a submission that I would think carries any weight.
The other issue that I need to deal with is the suggestion, although it was only passingly made on the part of the father, that there was a Rice & Asplund issue to be dealt with, in respect of the variation sought by the mother.
The father’s position is entirely distinguishable from that which is proposed by the mother. The circumstances that arise in relation to the mother’s application for variation is very different to that which arises in relation to the variations that are sought by the father. The mother details at extreme length the issues that she says give rise to substantive or significant change in relation to the child and, therefore, the need for the variation of the orders.
There is also, as I noted, the additional information that arises from the current report that has been prepared by the report writer, Ms L.
That is not to say, that after the evidence has been tested and fully examined in relation to the matter, that there might not be a strong argument put with regard to there being insufficient to satisfy me, that there has been a substantial or significant change, which gives rise to a need for variation. But here it is clearly a situation where at least the onus has been satisfied in relation to the matter, and I am therefore of the view that the issue of the variation as proposed by the mother in relation to the matter, is one which should properly proceed.
Additionally, as I understand the decision of the Full Court in relation to the successful appeal in this matter, they considered at the very least, that the evidence should be available, it should be considered and tested before there could be a determination as to whether there has been a substantial or significant change.
Suffice it to say, therefore, that I intend, pursuant to the discretion that vests in the Court to dismiss the three separate applications, if I can describe it that way, in relation to variation as proposed by the father, and to proceed with the application for variation as contained within the amended application filed by the mother, in relation to these proceedings.
I will direct that my reasons in relation to this matter be published, of course, and made available to the legal representatives for each of the parties in relation to the matter.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Coker FM.

Associate:

Date: 9 July 2012