Farrelly and Farrelly

[2017] FCCA 2472

FEDERAL CIRCUIT COURT OF AUSTRALIA

FARRELLY & FARRELLY [2017] FCCA 2472

Catchwords:
FAMILY LAW – Parenting where final parenting orders were made by consent on 30 November 2016 – consideration as to whether there were changed circumstances to justify a new hearing – principles in Rice & Asplund (1979) FLC 90-725 discussed – preliminary issue – where best interests of the child is primary consideration – whether change in circumstances is of sufficient significance to justify revisiting the parenting arrangements – application dismissed.

Legislation:

Family Law Act 1975, ss.11F, 69ZT

Cases cited:

CDJ v VAJ  (1998) 197 CLR 172; [1998] HCA 67

CDW v LVE [2015] WASCA 247

King & Finneran (2001) FLC 93-079

Marsden & Winch [2009] FamCAFC 152
Miller & Harrington (2008) FLC 93-383

Poisat & Poisat [2014] FamCAFC 128

Reid & Lynch [2010] FamCAFC 184

Rice & Asplund (1979) FLC 90-725

Applicant: MS FARRELLY

Respondent: MR FARRELLY

File Number: SYC 7060 of 2014

Judgment of: Judge Obradovic

Hearing date: 10 October 2017

Date of Last Submission: 10 October 2017

Delivered at: Parramatta

Delivered on: 19 October 2017

REPRESENTATION

Counsel for the Applicant: Ms Cantrall

Solicitors for the Applicant: Mcw Lawyers

Counsel for the Respondent: Mr Maddox

Solicitors for the Respondent: Mark Brown & Associates

ORDERS

1. The Amended Initiating Application filed 3 March 2017 is dismissed.

2. Remove all outstanding issues from the list of cases awaiting finalisation.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYC 7060 of 2014

MS FARRELLY

Applicant

And

MR FARRELLY

Respondent

REASONS FOR JUDGMENT

Introduction

1. On 30 November 2016 with consent of the parties, the Court made final parenting orders with respect to the only child of the parties X, born on (omitted) 2008 (“Final Orders”).

2. Pursuant to the Final Orders, X lives with the mother eight nights per fortnight and with the father six nights per fortnight during the school term.

3. On 15 February 2017, less than 3 months after Final Orders were made, the mother filed an Initiating Application seeking parenting orders different to the Final Orders. That application was amended on 3 March 2017, when the mother filed an Amended Initiating Application. 

4. The matter proceeded on the basis that there was a threshold issue for the Court to determine,[1] that threshold issue being whether the mother’s Amended Initiating Application filed 3 March 2017 is to be dismissed pursuant to the principles in Rice v Asplund.[2]

   [1] See for example Miller & Harrington (2008) FLC 93-383 at [72] where the Full Court said that the rule in Rice and Asplund might be applied either at a preliminary stage or at another stage of parenting proceedings

   [2] (1979) FLC 90-725

5. The mother, inter alia, relied upon the Child Inclusive Child Dispute Conference Memorandum to the Court dated 9 September 2016. However, during closing arguments, it was submitted on behalf of the mother that the Court should not accept the hearsay evidence contained in the Memorandum in respect of what the child said to the Family Consultant, and that the mother was only relying upon the Memorandum for a non-hearsay purpose. Such submission is rejected. The hearsay rule does not apply by virtue of s69ZT Family Law Act.  In any event, the relevance of the memorandum is in respect of the hearsay contained within it.

Relevant Legal Principles

1. These are parenting proceedings which are to be determined by the provisions of Part VII of the Family Law Act 1975. The central enquiry is for the Court to determine the outcome that will be best for the child the subject of these proceedings. However, given that there are already final orders in place in respect of the child, the Court is firstly concerned with whether it should entertain the application at all.

2. In Rice & Asplund[3] the Full Court said:

   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 the material on which the 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 that…there is some changed circumstance which will justify such a serious step, some new factor which was not disclosed at the previous hearing which would have been material…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…

   [3] (1979) FLC 90-725 at 78,905

3. The rule in Rice & Asplund is of long-standing, it has been consistently recognised and applied both by the Full Court of the Family Court, the Family Court and this Court, and it is intended to apply universally in the sense of applying to every case in which final parenting orders are sought to be discharged or varied subsequently[4].

   [4] Poisat & Poisat [2014] FamCAFC 128 at [8] and [13]

4. The purpose of the rule is to protect children from exposure and involvement in further unnecessary litigation.[5]

   [5] King & Finneran (2001) FLC 93-079 at [44] and [64]

5. The words of caution pronounced by the High Court in CDJ v VAJ[6] are respectfully adopted:

   The important private interests of children are unlikely, save in special circumstances, to be served by frequent displacements of them and uncertainly of prolonged repetitive proceedings.

   [6] (1998) 197 CLR 172; [1998] HCA 67 at [118], cited by the Full Court of the Family Court in the context of a Rice & Asplund argument in F & C & Child Representative [2004] FamCA 568 at [44]

6. It has been held that the assessment of whether the asserted change in circumstance is significant is simply part of a composite multi-faceted approach for assessing whether the re-litigation of parenting arrangements is in the best interests of the child.[7]

   [7] CDW v LVE [2015] WASCA 247 at [84]

7. The Full Court in Marsden v Winch[8] held as follows:

   … 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 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.

   [8] [2009] FamCAFC 152 at [50]

8. In summary, a court should not lightly entertain an application to discharge, vary, suspend or revive a final parenting judgment. In dealing with such an application, the court must be satisfied that there is some changed circumstance which will justify such a serious step or some new factor arising or some factor which was not disclosed at the previous hearing which would have been material.[9]

Determination of the Rice & Asplund issue

[9] Reid & Lynch [2010] FamCAFC 184

1. The history of the parties’ co-parenting after separation and prior to proceedings is important in the context of the present proceedings. It is briefly set out below.

2. The parties commenced living together in (omitted) 2005, and they were married on (omitted) 2005. The father’s evidence is that the parties separated in about 2011, although physical separation did not occur until 23 February 2013. The mother says that the parties separated on 24 February 2013. In any event, the father moved out of the former matrimonial home[10] in late February 2013, when X was not yet 5 years old. The father moved to (omitted).

   [10] Neither party’s affidavit states where the former matrimonial home was located

3. The parties’ divorce was finalised on 28 February 2015. [11]

   [11] It appears from the Court file (namely the Application for Divorce) that as at 10 November 2014, the mother was living at (omitted) and that X was attending  (omitted) Public School at (omitted)

4. The father commenced a de-facto relationship in (omitted) 2015, with his current wife, Ms C, whom he married on 27 February 2016. Ms C has four children from a previous relationship, who live with her, the father and X (when X is living with the father). Prior to moving to (omitted) in (omitted) 2016, the father and his wife had been residing on the (omitted) at (omitted), located approximately 3 km from the father’s current residence.

5. In his Affidavit sworn on 8 September 2016, the father acknowledged that the travel between (omitted) and (omitted) in 2015 became difficult for X, and as a result in October 2015, he moved back to his parents’ home in (omitted) where X and him slept when X was in the father’s care.

6. In December 2015, the mother moved to (omitted) with X. This was a year after she had commenced a relationship with her current partner, Mr D. Mr D has one child from a previous relationship; a daughter aged 12, who lives with him, the mother and X (when X is living with the mother).

7. Prior to the father commencing proceedings in May 2016, X had been living in a shared care arrangement with the parties namely, six nights per fortnight with the father and eight nights per fortnight with the mother, and that school holidays were shared between the parties on an equal basis. 

8. The father’s application at the time in May 2016 was for X to live with her parents on a week about basis. The mother’s response was for X to live with her and spend alternate weekends with the father. Her Response was filed on 6 July 2016.

9. The mother says in her Affidavit:

   The decrease in X’s time with Mr Farrelly within my proposal was chosen to reduce the time X spent going between my home at (omitted) and Mr Farrelly’s home in (omitted), as X did not appear to be coping well with the travel between our homes, her school and her extra-curricular activities…

   I was shocked and disappointed that Mr Farrelly requested that X become involved in our proceedings… [as a result of an application for the parties and X to attend a Child Inclusive Child Dispute Conference pursuant to s11F of the Act].

10. It is clear that at the time of the 2016 proceedings, the parents were in dispute about the impact of the travel on X between the two residences. The mother was of the view that such travel was negatively impacting X while the father did not hold such a view.

11. The parties and X attended a Child Inclusive Chid Dispute Conference on 9 September 2016. X indicated to the Family Consultant that she was happy with the then current arrangements, and she spoke positively about both of her parents, their partners and children. X was also asked about the driving to and from her father’s place and she said that it was not an issue for her.

12. The parties attended mediation on 16 November 2016 where agreement in principle was reached about the then parenting dispute concerning X. However, it was not until 30 November 2016 that the parties signed proposed consent orders, and invited the Court to make orders in accordance with the agreement reached between them.

13. On the night the Final Orders were made, the father and his wife made a decision to move from (omitted) to the (omitted), where the father’s wife had previously lived with her children. That move was conditional upon a few factors, which were all resolved within a short period of time.

14. The father notified the mother on 30 December 2016 of his intention to move. The mother’s response was:

    You must be kidding. It takes at least an hour on the weekend to get to the (omitted) and to do that in peak hour traffic 8 journeys a fortnight is just not fair to X. She is already exhausted with the travel from (omitted).

15. A further complaint which the mother raises in her case is that the father had an obligation to the Court and to her to tell her about his intention to move (a distance of some 15km further from X’s school) before the parties entered into consent orders. She says had she known about this, she would not have agreed to a 6/8 arrangement for X. The mother says that not only should the father have told her, but that the reason he did not tell her is because he knew she would not have agreed to the orders.

16. The father says, and the Court accepts his evidence, that he did not form any firm intention to move until after the parenting proceedings concerning X had finalised. He also conceded that while he did have an intention in May 2016 to remain living in (omitted), such intentions changed after the orders were made. There were changed circumstances in the father’s life, such as the impeding birth of his new child with his current wife, as well as the finalisation of the parenting proceedings concerning X which formalised the arrangements which had been in place for some time.

17. The Court does not find, as the mother invites the Court to do, that the father was in any way dishonest or subversive in his decision to move from (omitted) to the (omitted). The Court accepts the father’s evidence that he did not consider the move would have any significant detrimental effect on X, such that it should not occur.

18. Furthermore, the Court accepts the father’s evidence that in his view “Since the making of those orders arrangements in relation to X’s care have worked extremely satisfactorily.” There was little evidence in the mother’s case to the contrary. The mother, through answers given in cross-examination, did state that X was now more exhausted than before. The Court accepts that X is now more tired than before.  However, this does not mean, either of itself or in combination with other matters, that the Final Orders are not in X’s best interests and that they should be varied.

19. The authorities have time and time again re-iterated the importance of the child’s best interest in determining any application for parenting orders. While there is no res judicata principle applicable to the determination of a parenting application, the authorities are likewise clear on the importance of protecting children from litigation. Circumstances change. That is what life is. It does not mean that upon every single change in circumstance that fresh parenting applications ought be made.[12]

    [12] See for example Marsden v Winch [2009] FamCAFC 152 at [48]

20. While it may be that the mother would not have consented to the orders which were made had she known that the father was going to move, it does not mean that the Court in all of the circumstances would not have made orders to a similar effect as the Final Orders[13].

    [13] even if the father was intending to move to the (omitted) at the time

21. The Court accepts that the mother was and remains upset at the father’s move, indeed she says she was ‘furious’ about it. The Court accepts that the mother might, from her point of view, have a reason to feel that she was somehow tricked into agreeing to the Orders. However, this is not the test which the Court is to apply in determining the threshold issue.

22. The matters which the Court is to consider are to be considered objectively, not subjectively. While the mother says that she would not have agreed to the orders had she been told about the move, there are a whole lot of maybes and might have beens which surely would have impacted upon her decision to ask the Court, together with the father, to make the Final Orders by consent. The mother accepted that the Final Orders were a compromised position by the parties. A decision by the Court, after a contested hearing, might have been different. The Court might have acceded to her application for alternate weekends, to the father’s application for week about, or the Court might have determined the matter in a different way completely. These matters however never eventuated, and it is not helpful to speculate about them.

23. What is helpful is to heed the words of the Full Court. That is, is there a likelihood of the orders being varied in a significant way, as a result of a new hearing? The answer to this question, in the exercise of the Court’s discretion determined in accordance with the child’s best interest being the paramount consideration is no. The Court has come to this conclusion based on the following:

    a)X told the Family Consultant that travel was not an issue for her;

    b)X clearly enjoys a close and loving relationship with both of her parents, and their blended families;

    c)There is no evidence that X has complained to the father or to the mother about the extra travel, and indeed the mother conceded in cross-examination that X occupies herself in the car when she is travelling by singing, talking and playing on her iPad.

24. Even if there was a likelihood of change, the changes might only have been of a minor nature, given the matters noted above. The disruption to X and the detriment to her caused by the litigation itself would be far greater than any benefit of a change in orders (which might have an effect of less travel for her).

25. The Court is mindful of the mother’s evidence as to X’s upset during the 2016 proceedings at the dispute her parents were having in respect of her living arrangements.

26. The Court finds that the benefit to X of spending more time with the father rather than less time outweighs any difficulty associated with the extra travel she now does in order to get to and from school each day she is living with her father;

27. It is not only the extra travel though that the mother submits is a changed circumstance. The mother says there are now communication difficulties which make shared parenting contraindicated. The difficulty with this submission is that there is nothing in the mother’s evidence which goes to any communication difficulties post the Final Orders.

28. Much of the mother’s evidence in chief is concerned with regurgitating complaints against the father which pre-date the Final Orders. The relevance of such evidence was not made clear to the Court during submissions. Such evidence might for example be relevant to the consideration of the first of the matters which the Full Court has indicated must be looked at, namely “the past circumstances, including the reasons for the decision and the evidence upon which it is based”.  In doing so, that is, in taking such evidence into consideration in looking at the past circumstances, the Court finds that those matters existed prior to the Final Orders and there is no evidence of any change to such matters, after the orders or indeed after the father’s move to the (omitted).

29. Although the Final Orders were made by consent, the chronology of proceedings evident from the Court file shows that the orders were not entered into at the first available opportunity, but rather after several steps were taken in the proceedings, including a Child Inclusive Child Dispute Conference and a mediation. Both parties were ably represented during the first proceedings.

30. The Court finds that although the parties’ position in respect of the Final Orders was a compromise, it must have been a compromise which both parties considered was ultimately in X’s best interest. Such compromise would have included the consideration of the effect of ongoing litigation between the parties on X.[14]

    [14] The mother states in her affidavit that she was shocked and disappointed

1. In weighing up the benefits to the child of allowing the matter to be contested in a fresh hearing against the detriment of her being again involved in the stresses of litigation, the Court finds that on balance the best interests of the child are served by the mother’s application being dismissed.

Conclusion

1. The interests of the child in not being the subject of further litigation is more powerfully in her welfare than to allow the application to continue. As such, the mother’s application for a variation of the Final Orders is dismissed.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Obradovic

Date: 19 October 2017