FINDLAY & REIS

[2020] FCCA 425

FEDERAL CIRCUIT COURT OF AUSTRALIA

FINDLAY & REIS [2020] FCCA 425

Catchwords:
FAMILY LAW – Parenting – application for change to parenting arrangements six years after final parenting orders made – ongoing hostility between the parties – unlikelihood of substantial change to arrangements – negative aspects of litigation outweigh potential benefits to the children – application dismissed in accordance with principles in Rice & Asplund.

Legislation:

Family Law Act 1975 (Cth), s.60CC(2)
Federal Circuit Court Rules2001, r.21.02

Cases cited:

Rice & Asplund (1979) FLC 90-725

SPS & PLS (2008) FLC 93-363

Marsden & Winch (2009) 42 Fam LR 1

Applicant: MR FINDLAY

Respondent: MS REIS

File Number: CAC 813 of 2012

Judgment of: Judge Hughes

Hearing date: 14 June 2019

Date of Last Submission: 14 June 2019

Delivered at: Canberra

Delivered on: 28 February 2020

REPRESENTATION

Counsel for the Applicant: Ms Evans

Solicitors for the Applicant: Mills Oakley

Counsel for the Respondent: Ms Coles

Solicitors for the Respondent: Watts McCray Lawyers

ORDERS

1. The application for parenting orders filed by the father on 9 January 2019 is dismissed in accordance with the principles in Rice & Asplund (1979) FLC 90-725.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CANBERRA

CAC 813 of 2012

MR FINDLAY

Applicant

And

MS REIS

Respondent

REASONS FOR JUDGMENT

Introduction

1. These are parenting proceedings in which the father seeks orders for the two children of the relationship to live with their parents on an equal time, week about basis.  In accordance with final orders made by consent on 25 July 2013, the children currently live primarily with their mother and spend time with their father four days a fortnight, half of all school holidays and extra time on special days.

2. The mother resists the father’s application to increase the children’s time with him.  She asked the Court to dismiss the father's application in accordance with the principles in the case of Rice & Asplund (1979) FLC 90-725. The Rice & Asplund application was listed as a preliminary matter on 14 June 2019.  Each party made submissions and the proceedings were adjourned for a decision on that matter.

Background

1. The applicant father is a 52 year old self-employed.  The mother is a 50 year old homemaker.

2. The parties began living together in September 2002 and separated on a final basis on 19 September 2011.

3. The parties have two children, [X], born … 2006, now aged 13 and [Y], born … 2008, aged 11.

4. The mother is married to Mr A.  She and Mr A said they began their relationship in early 2012.  The father said the relationship began almost immediately following the breakdown of the parents’ relationship in 2011.  The father and Mr A were formally close friends.  None of this is relevant to the current proceedings but may go some way to explaining the poor relationship between the parents and between the father and Mr A.

5. The mother and Mr A married on … 2016.  They have a child together, [B], who was born on … 2013 and is now aged six.

6. On a date which was not clear on the evidence but appears to be around 2015 or 2016, the father formed a relationship with Ms C.  Ms C has two children from a previous relationship, [D] and [E], who at the time of the hearing in mid-2019, were aged 11 and 15 respectively.

7. The mother commenced parenting proceedings on 11 September 2012 seeking sole parental responsibility and for the children to live with her and spend time with their father for four nights a fortnight and half of school holidays.  The father sought equal shared responsibility and for the children to live week about with each parent.  The trial in those proceedings commenced on 18 February 2013 but, on the first day, the parties agreed to resolve the dispute.  Despite this, it took until 25 July 2013 for final terms of settlement to be signed.  This occurred at the conciliation conference in relation to property proceedings between the parties.

8. On 19 August 2013 the father filed a costs application against the mother in relation to the 2013 proceedings.  That application was dismissed on 22 November 2013.

9. The orders of 25 July 2013 provided for the parents to have equal shared parental responsibility for the children.  In accordance with the orders the children spend time with their father every second week from 5pm Thursday to the commencement of school on the following Monday, or Tuesday if Monday is a public holiday.  They spend half of all school holidays with him.

10. The orders also provide for the children to spend extra time with their father on special days such as Father’s Day, the father’s birthday and the children's birthdays.

11. The mother opposes any increase in the children’s time with the father.  She said in these proceedings that in her trial affidavit filed for the 2013 proceedings, she set out the particulars of what she alleged was the father’s emotional, physical and financial abuse of her and his verbal abuse of her and the children.

12. The father denied the allegations of abuse and said he denied them in the 2013 proceedings.  I am not in a position to assess where the truth lies in relation to those allegations, nor am I aware of the details of them.  I infer the parents had a difficult relationship in 2013 because the handover arrangements (set out in order 10 of the orders) provide that for all handovers which do not occur at school, the mother was to deliver the children to or collect them from the father’s home but, in that event, the father was to remain either inside his house or on the front porch.

13. The mother and Mr A both filed affidavits in these proceedings in which they alleged that the father has continued to behave in an aggressive, hostile and, at times, abusive manner towards them.  The mother said, for instance, that on 5 March 2014, nine months after the consent orders were made and the day before her birthday, she received a text message from the father which read as follows:

    You are a compulsive liar.  I know the truth n its only a matter of time b4 everyone else knows it to.  Haha u will only fool people for so long.  enjoy it while u can.  In your own words a leopard never changes its spots.[1]

    [1] Mother’s affidavit filed 17 May 2019 at paragraph 24

14. The mother said she was distressed by this unsolicited message.  The father filed an affidavit in reply on 31 May 2019, but did not address that allegation.  I required his Counsel to obtain instructions on the day the Rice & Asplund argument occurred, 14 June 2019.  Counsel advised that her instructions were that the father “may have” sent the message.

15. The mother said that on 24 July 2015 she received a text message from a number she did not recognise, which read as follows:

    U are the most pathetic parent we have ever known your mental abuse and manipulation of your children is criminal.  It has been noticed by many.[2]

    [2] Mother’s affidavit 17 May 2019 at paragraph 25

16. The mother said she was upset and disturbed by the message.  She attended the police station to see if she could find out who had sent it.  She was referred to the Domestic Violence Victim Support Team and receive some advice from them.  She said she subsequently rang the number from which the message had come.  The call went through to the father’s voicemail.

17. Again, the father did not address this allegation in his affidavit in reply.  After taking instructions his Counsel advised the Court that he denied sending the message.

18. The mother said that, on 19 September 2015, she received two messages from the father.  The father conceded through his Counsel on 24 June 2019 that he had sent the messages.  They were as follows:

    yea as per order when it suits U or should I say spineless, punish the kids to please u, as long as it makes u feel good

    wat makes me laugh is everything he has told u to do has made u show your true colours, your hole is 10ft deep lol lol lol

19. The mother said she was offended by the messages and interpreted the second one as a death threat.  She considered applying for a family violence order but she did not want the additional stress of further proceedings or to have anything further to do with the father.

20. The mother said in her affidavit filed on 17 May 2019 that she feels intimidated by the father and does not want to have any face-to-face contact with him.  She said she believes he does not respect her as the children’s mother and she could not imagine having a more extensive co-parenting relationship with him which would be necessary if the children lived for equal time with each parent.  The father did not respond to the mother's statement that she did not feel respected by him but said that he is “absolutely capable of co-parenting” with the mother.[3]

    [3] Father’s affidavit filed 31 May 2019 at paragraph 7

21. The mother said she finds the father’s communications bullying, disrespectful and generally unpleasant.[4]  She provided some examples of his hostile communications.  On 27 January 2018 the mother sent a text message to the father to advise him that [X] had her first menstrual period.  Inexplicably, the father launched into a vitriolic attack on the mother, which seemed to bear no relation to the mother’s message.  The communication between the parties that day was as follows:

    [4] Ibid paragraph 40

    Mother:  [X] had her first period last week…  she didn’t want me to tell you but you should know

    Father:  I’m surprised u said anything all I have ever done is for OUR KIDS, n tried to be the best dad I hope u now see that, the lies n deception that u have put on them has had a profound affect on there upbringing n brought them closer to me Coz I DON’T TELL LIES TO MY KIDS THE ONLY RULES I HAVE IS DON'T TELL LIES, I’M THERE FOR THEM N THEM ONLY not only for my personal gain.

    Mother:  I’ve never said a bad word against you to them.

    Father:  I’m going back to court if needed for 50/50 u can’t win u know that so to save $ lets be civil just for our kids N come to a reasonable decision but it’s 50/50 min if he wants to push, 100% custody my way wat U have done is child abuse full on n I’ll take it to the top level.

    Father:  All is documented I mean everything [5]

    [5] Mother’s affidavit filed 17 May 2019 at annexure I

22. The mother said that on 15 October 2018, when the children returned to her care after a week of school holidays with their father, [Y] told her that he had not brushed his teeth at all during the week with his father.  She said she looked at his teeth and they were covered in “white gunk”.  [Y] was aged nine at the time.  A text message exchange then occurred between the parents as follows:

    Mother:  Can you please make sure brock brushes his teeth when he is with you… he said he didn’t brush his teeth all week because you didn’t make him… teeth were gross and covered in plaque.

    Father:  All the kids do I’ll make sure he does, maybe if you installed that into him i wouldn’t have to make him, no one else has to be told they just do it, like eating healthy food.

23. The last of these messages was sent by the father less than three months prior to him commencing the current proceedings.  They do not bode well for a cooperative, co-parenting relationship.

24. The mother’s husband, Mr A, said that once he began a relationship with the mother, he was the subject of intense aggression on the part of the father towards him.  He gave a summary of the behaviour and said he had given detailed evidence about it in the 2013 proceedings.  He obtained an interim personal protection order against the father in March 2012.  On 31 May 2012 the father agreed to a six-month final order.  I assume that was on a without admissions basis, although this is not clear on the evidence.

25. Mr A said the father’s aggression towards him continued after the parties entered into final consent orders on 25 July 2013.

26. Mr A said that, as he was driving home on 16 November 2014, he saw the father and a friend of the father out the front of the friend’s home.  The friend lived in the same suburb as the mother and Mr A.  Mr A said the father was drinking alcohol and glared at him as he drove past.  Later that evening he heard a car out the front of the house with its horn beeping repeatedly.  He observed the father in the car beeping the horn.  He said he did not confront the father as he did not want to cause conflict.  Later that night someone repeatedly rang on both his phone and the mother’s phone from a private number.  Mr A eventually called the police who advised that he answer the phone.  When he did so, he said he heard the father’s voice in the background speaking to someone before the phone was hung up.[6]

    [6] Affidavit of Mr A filed 17 May 2019 at paragraph 4

27. Mr A deposed that on 22 May 2015 he saw the father drive past his house.  He said he received a phone call later that evening from an unidentified number.  When he answered the call, he heard the father laughing and saying “Yep”.  He said he heard other people in the background laughing.  He reported it to police.[7]

    [7] Affidavit of Mr A filed 17 May 2019 at paragraph 5

28. Mr A said that on 9 January 2016, he accompanied the mother to collect the children from the father’s home.  He said that as he drove towards the house he saw the father and the friend that lives in the same suburb as the mother and Mr A on the footpath beside the garage, rather than on the porch or in the house as required by the orders.  He said he parked the car out of sight to avoid any confrontation.  He said the children came and got into the car but both look distressed and [X] was crying.  He said the mother got out of the car to ensure the children were properly secured in their seats.  He then heard the father shouting “[Reis], get out of the car!”  He said the father approached the car “pumping and flexing his chest”.  Mr A said he drove away but, as he did, the father pointed to him and made a threatening throat cutting gesture.  He said the father then sent him a text message which read:

    Your a fuckin coward, your weak your not a man and never will be.  So keep growin ya pathetic beard coz we all know wat u look like n your day is comin so be smug n think your untouchable coz that will be your demise lol. [8]

    [8] Ibid at annexure A

29. Mr A reported the incident to police and obtained his second personal protection order against the father.  A final order was made in the Court F on … 2016 for a period of 12 months.  It appears the orders were made after a contested hearing, as there is no indication they were made by consent.  The orders noted that Mr A had also agreed to give undertakings to the Court that for a period of 12 months he would not attend the father’s house or enter into his street.  Mr A said he had complied with those undertakings.

30. On Christmas Day 2017 Mr A drove the mother and children to the father’s home for handover at the request of the mother as she was not feeling well.  Mr A said the father was sitting in his car out the front of the house rather than being in the house or on the porch as required by the orders.  He said he did not make eye contact with the father or communicate in any way with him.  He said he parked out of sight, driving off when the children were out of the car.  He said he recorded the entire changeover on his car’s dashboard camera and, from his perspective, the handover occurred without incident.

31. More than two weeks later, on 9 January 2018, the father applied for a personal protection order against Mr A.  In his application he alleged that Mr A came to his house and attempted to provoke him by setting up a camera in his car and then smiling and making hand gestures in an attempt to provoke him.[9]

    [9] See application for personal protection order signed by the father on 8 January 2018 at annexure C to the affidavit of Mr Reis filed 17 May 2019 at pages 15 to 22

32. An interim personal protection order was made on an ex parte basis against Mr A on 9 January 2018.  A transcript of those proceedings came into evidence as exhibit A on 14 June 2019.  The transcript reveals that during those proceedings the Registrar asked the father about the behaviour of Mr A which was said to be intimidating.  The father confirmed that he was not alleging any physical violence or physically threatening behaviour.  The father told the Registrar that, despite Mr A obtaining orders against him in the past, “He sits there and smiles and laughs… Out the front of my house and he comes to my house to do this”.[10]

    [10] Transcript of proceedings Court F … 2018 at pages 9 to 10

33. The Registrar told the father that the behaviour sounded more offensive or provocative than intimidating.  The father responded:

    Well, it is provocative, but it intimidates me.  It puts me, I suppose, in fear of me reacting and doing something that is not right, you know.  It’s sort of hard to explain that one.[11]

    [11] Ibid page 10

34. Notwithstanding the only fear the father described was a fear of himself behaving badly, the interim personal protection order was made against Mr A.

35. Mr A denied behaving provocatively towards the father and said he felt the father’s application was harassment of him.  However he said he was prepared to resolve the matter by giving undertakings without admissions and the father withdrawing the application because it meant neither of the men could approach the other, which he thought would be helpful.

36. The father did not engage at all with the allegations made by Mr A.  In his affidavit in reply filed on 31 May 2019, under a heading, “Response to Affidavit of Mr A filed 17 May 2019”, the father wrote two short paragraphs.  The first dealt with the commencement of Mr A’ relationship with the mother.  The second read as follows:

    Mr A helped me to move out of the former family home when Ms Reis and I separated in October 2011.  We have no relationship now at all.  Mr A had been a very close friend.  Those matters are referred to in my earlier affidavit in the 2013 proceedings.[12]

    [12] Father’s affidavit filed 31 May 2019 at paragraph 44

37. The documents filed in the 2013 proceedings are not before me and have not been taken into account in determining whether or not the current proceedings should continue.

38. The mother said the father had not complied with various aspects of the 2013 orders.  For instance, she said he had failed to keep her advised of his change of address.  She said that in early 2016 the children told her that their father had moved to his partner’s home in Suburb G.  Nevertheless the handover of the children when it did not occur at school continued to happen at the father’s home in Suburb G.  At the end of 2016, [Y] told his mother that his father had now moved to live in Town H with Ms C.  She said the father did not advise her about that and handovers continued to occur at the father’s home in Suburb G.

39. On 2 December 2016 the mother sent a text message to the father asking him to provide his new address.  The father responded on 15 December 2016 to say that his partner had moved but he was still living at his house until sometime in 2017 and he would let her know when he moved.  The father did not ever advise the mother he had moved.  The mother said she was aware that for a period of two or three months the children commuted between Town H and school and her home.

40. At the end of February 2017 there was a fire at the Town H property while the father and children were there with Ms C and her children.  The house burnt down and the father and children returned to live at the father’s home.  At the end of 2017 or early 2018, the children told their mother that their father had moved back to Ms C’ house but changeovers continued to take place of the father’s home.  The mother said she was not formally advised the father was living at his partner’s home until she read his affidavit filed in these proceedings in February 2019.

1. During his evidence to the Court F in support of his application for a personal protection order against Mr A on 9 January 2018, the father said he believed Mr A started the fire at Town H.  Mr A and the mother vehemently denied having anything to do with the fire.  The mother said the first she knew about it was when she received a phone call from the paternal grandmother the next morning.  She said the children were shaken up by the incident and required some counselling.  The mother said that in about early 2019 she found a handwritten note down the side of [X]’s bed when she was changing the sheets.  She said the note read as follows:

   [X]’s secrits: 1.  I have a crush on [I]. 2.  I think Mr A bernt the house down because he nows where it is.

2. The mother said she did not speak to [X] about the note because she did not want to embarrass or upset her and she did not believe that she would really think Mr A was capable of setting fire to a house and endangering life.  Nevertheless, the mother was concerned that the father had exposed [X] to his belief that Mr A had lit the fire.

Basis of the father’s parenting application

1. The father said in his affidavit in support of his application for more time with the children that the children had both repeatedly requested to live in an equal time, week about arrangement.  He said he believes the children are sufficiently mature to have substantial weight accorded to their views.  The mother said the children had only once discussed the issue with her.  She said this occurred when the children returned from spending three weeks with their father in the 2017/2018 summer school holidays.  She said [X] told her that she thought she and [Y] should live with their father in a “50/50” arrangement.  The mother said that when she asked [X] why she thought that, [X] responded “It is not fair on dad”.  The mother said she separately asked [Y] if he wanted to live for equal time with his father, and he responded “Yes, it is what dad wants”. [13]

   [13] Mother’s affidavit filed 17 May 2019 at paragraph 33

2. The mother said she concluded the children had been placed under pressure by the father about the arrangements not being fair.  She said neither child had raised the issue again.

3. The second matter relied upon by the father to support a change in the living arrangements was his desire to facilitate the children being involved in sports and outdoor activities, and to participate in those activities with them.  He alleged that the mother does not permit him to attend any sporting or extracurricular activities of the children that occur during her time with them.  He said that after he twice attended [Y]’s sports lessons and twice attended [Y]’s sports games, both activities were stopped by the mother.  The mother denied that.  She said she had never stopped the father attending the children’s sporting or extracurricular events.  However, she said she feels anxious and intimidated when he turns up.  She said both children attended swimming lessons from preschool age and only stopped when the swim school said they would only need to continue lessons if they were engaged in competitive racing in which neither child had an interest.  She said [X] had participated in sports lessons and sports activities.  She said [X] did each activity for a few terms and then wanted to pursue something different.  She said [X] was currently on a school sports team and had recently shown interest in arts classes.  She said she was happy to support [X] exploring different activities.  The mother said [Y] had participated in sports.  Like his sister, he did each activity for one or two terms and then wanted to try something different.  The mother said she had tried to encourage [Y] to re-enrol in sports in 2019 but he refused.  She said [Y] had recently joined the school arts activities.

4. The mother queried the father’s living arrangements and capacity to adequately accommodate the children.  At the time he filed his affidavit in January 2019, the father said that he was living in his partner’s home which was a three-bedroom house with a separate self-contained office and granny flat.  He said he and Ms C were about to undertake renovations to add two extra bedrooms and a second bathroom.  He said each of the children would then have their own bedroom.

5. The mother also queried the father’s capacity to financially support the children if he had them for longer periods.  She said that he had provided very limited contributions to the children’s upkeep.  She said he made total payments of child support to her of $424 in 2015, $300 in 2016 and $1,600 in 2017.  She said he paid no child support at all in 2018 and, by the time she filed her affidavit on 17 May 2019, he had made one payment of a sum of $200 by way of child support in 2019.  The mother said the Child Support Agency recorded the father’s taxable income as $18,832 as at 31 October 2018 which means he is not required to pay child support.  She conceded that he occasionally buys the children clothes or shoes.  In his affidavit in reply, the father said that he has had a low income for several years because of health issues which have restricted his capacity to work but he is now working and will discharge his child support arrears promptly.

6. The mother said that at the time of the 2013 proceedings the father declared a tax debt of $180,000.  During the 2018 personal protection order proceedings, the father told the Registrar he had a $270,000 tax debt, saying he had recently discovered this by going back through years of accounting.  His evidence to the Registrar suggested the mother had removed money from his bank account and falsified his tax records, which the mother said was untrue.[14]

   [14] Transcript of proceedings Court F … 2018 at page 3

7. The father said in his affidavit filed in January 2019 that he was in the process of selling his Suburb G home and hoped to receive net proceeds of sale of between $180,000 and $200,000.  He said he intended to use $100,000 towards the renovations on his partner’s property.  The mother queried those figures when the father had said a year earlier that he had a $270,000 tax debt.  In his affidavit in reply the father did not directly address that point, other than to say his financial circumstances were as deposed by him in his first affidavit.

8. I am not in a position to make any finding about these matters on the untested evidence before me.  There are also other matters raised by the parties which I have not mentioned as they have no bearing on my determination.

The proceedings

1. The father commenced these proceedings on 9 January 2019.  Attempts by process servers to serve the mother occurred on 14, 20, 21, 25, 26 and 27 February 2019.  I am satisfied on the affidavits of attempted service filed on 1 and 2 April 2019 that the mother was actively avoiding service.  Nevertheless, she appeared at Court on the first return date of 2 April 2019 and had a solicitor appear on her behalf.

2. The mother’s solicitor foreshadowed the Rice & Asplund argument.  The mother was ordered to file and serve a response and affidavit by 17 May 2019.  The father was ordered to file and serve any material in reply by 31 May 2019 and the proceedings were adjourned to 14 June 2019 for hearing of the mother’s foreshadowed application.

3. On 14 June 2019 both parties were legally represented.  Submissions were made on behalf of each party and the proceedings were adjourned for a decision on a date to be advised.

4. The father asserted the mother had been obstructive by failing to enter into discussions or attend mediation in relation to a potential increase in the children’s time with him.  He said that he had tried to organise mediation at Relationships Australia during 2018.  The mother said that when she received a telephone call from Relationships Australia, she felt stressed and anxious at the prospect of meeting with the father.  She said she asked about participating by teleconference instead of being on the same premises, but was only offered the option of participating in a separate room.  She said she was worried about encountering the father in the car park.  She said that she nevertheless booked in to attend the pre-mediation session.  She said she was unable to attend at the last minute because one of the children was sick.  She said she tried to re-book but was unable to obtain a suitable date prior to the date the joint mediation session was scheduled.  She said the workers at Relationships Australia wanted her to do the pre-mediation session on the same day as the mediation, and she felt pressured by that.  She said she felt overcome with stress on the day the mediation was scheduled and asked her husband to ring and cancel the appointment.  When she tried to re-book the session she was told a section 60I certificate had already been issued.

5. On 6 June 2018 the father’s solicitors wrote to the mother, referring to her cancellation of the mediation appointment and the fact that the section 60I certificate had been issued which enabled the father to commence proceedings.  They expressed a desire to avoid litigation and invited the mother to engage in a conversation about transitioning the children to an equal time arrangement.  They sought a response from the mother within 14 days.

6. The mother said she did not receive the letter until 18 June 2018.  She said it was in her letterbox but had no postmark, so she assumed it had been hand delivered.  She said she rang the solicitors that day to ask for more time to consider the issue.  That request was denied, so she wrote a responding letter in which she rejected the father’s proposal.  She stated in the letter that her primary concern was the children’s welfare.  She said that if litigation was launched, she would be seeking orders for the children’s time with the father to be reduced rather than increased.  She said she could not see how the father could financially support the children given his evidence about his financial circumstances during the protection order proceedings in January 2018.  She also referred to his evidence about having mental and physical health problems.  She said she would be seeking full disclosure of his financial situation as she regarded it as relevant to the children’s welfare.  The last two paragraphs of her letter are as follows:

   I was aware Mr Findlay wanted 50/50 with the children as he sent me an abusive text message stating that if I didn’t agree he would accuse me of abusing my children which is not a very mature way to communicate and not based on any real fact.

   I would suggest Mr Findlay spends what little money he has on the children and not on legal fees.

7. The letter from the father’s solicitors to the mother and the mother’s letter in response were referred to during the proceedings on 14 June 2019 but were not in evidence.  The parties agreed to make the correspondence available to me.  They letters were emailed to my associate on 17 June 2019 and became exhibit B in the proceedings.

The legal principles

1. In Rice & Asplund the Full Court of the Family Court of Australia set out the principles which apply when, after final parenting orders have been made, a Court is asked to entertain further parenting proceedings.  Evatt CJ set out the following principles with which Pawley SJ and Fogarty J agreed:

   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 material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would 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… 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 principals 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.[15]

   [15] In the marriage of Rice & Asplund (1979) FLC 90-725 at pages 78,905 to 78,906

2. It is now more than 40 years since the principles in Rice & Asplund were enunciated.  They have been the subject of discussion and approval in numerous cases, both at first instance and in the Full Court of the Family Court.

3. In the case of SPS & PLS[16], Warnick J said that, although the “rule” in Rice & Asplund is often described as a threshold issue, there is no requirement for the issue to be determined at the beginning of the hearing as opposed to the end but, rather, it is the first question to be determined.[17]  He then went on to describe how the preliminary determination is to be approached:

   Thus, in my view when the threshold question described in Rice & 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 circumstances shown to justify embarking on a hearing.  Though sometimes unstated, the underlying conclusion will or ought to be that the interests of the child in not being subject to further litigation is more powerfully in the child's welfare and to allow the application to continue. [18]

   [16] SPS & PLS (2008) FLC 93-363

   [17] Ibid, paragraphs 45 to 46

   [18] SPS & PLS, paragraph 81

4. In Marsden & Winch[19] the Full Court comprising Bryant CJ, Finn and Cronin JJ said that the principles were “… 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”.[20] 

   [19] Marsden & Winch (2009) 42 Fam LR 1

   [20] Ibid, paragraph 49

5. Their Honours noted, however, that there would always be cases in which the particular circumstances required a Court to reconsider the parenting arrangements despite final orders having previously been made.  They set out the matters which should be taken into account in determining whether or not further proceedings are justified.  They are as follows:

   (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.[21]

   [21] Ibid, paragraph 50

6. Their Honours set out a two-step process to be followed in which there was 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.

7. In this case there has, on one level, been a significant change of circumstances in that six years have elapsed and the children, who were aged five and six at the time of the orders in July 2013, are now aged 11 and 13.  The views of a 13 year old about the time they spend with each parent would usually attract significant weight.  The views of an 11 year old would also usually be reasonably weighty. The father’s evidence is that the children have regularly expressed a desire to live on an equal time basis with him.  The mother said the only occasion on which the issue was raised with her was, she believes, the result of the father's influence and a desire by the children to meet his needs to have an arrangement which is “fair” as between the parents.  The veracity of the competing evidence about the children’s views is not something I am able to determine on the strength of the untested affidavit material before me.

8. As discussed, the father also relies on an assertion that the mother does not support the children being engaged in sporting activities.  The father’s evidence is that he has a strong interest in such activities and can support the children better than the mother has.  Given the evidence of the extracurricular activities engaged in by the children when with their mother, this is not likely to be a strong factor in any determination by the Court.

9. A third change relied on by the father is that he is now in a stable de facto relationship with Ms C. According to the father the children have a close and positive relationship with the children of Ms C. The father argues an equal time arrangement will provide the children with an opportunity to develop a more substantial relationship with him but also with Ms C and her children and from which, he says, the children will benefit. In determining what is in the child’s best interests the Court is required to take into account the considerations set out in section 60CC of the Family Law Act 1975, the first of which is the benefit to the children of a meaningful relationship with each parent.  This primary consideration does not extend to step-parents or step-siblings.  However one of the additional considerations the Court is required to take into account is the nature of the children’s relationship with other people.  This could include the relationship between the children and their step-mother and step-siblings.  For the purpose of this exercise I am prepared to accept the children would benefit from the opportunity to develop and deepen their relationship with their father and with Ms C and her children.

10. Next the father argued that the consent orders of July 2013 provided for a gradually increasing regime of time between the children and their father up until 2015 and were silent as to what was to happen after 2015.  The written submissions prepared by the father’s counsel suggest at paragraph 11 that there was an expectation at the time of the 2013 orders that the children's time with their father would be increased after 2015.  I reject that argument.  The orders are completely unambiguous.  The only aspect in which the orders were graduated was in the structure of the time the children were to spend with their father during school holidays between 2013 and 2015.  The orders provided that for the second half of 2013, the children’s time with their father during the shorter school holidays was to be for one week split over four days at the beginning of the holidays and three days at the end.  During the long summer holidays that year, the children were to live week about with each parent.  In 2014 the children were to spend a seven day block with their father in the shorter school holidays and a two week block and a one week block with each parent during the long summer holidays.  From 2015, the holidays were to be split evenly between the parties including a block of three weeks during the long summer holidays.

11. These holiday arrangements accord with what would be developmentally appropriate for children aged five and six years but who could be expected to cope with longer block periods of time away from their primary carer by the time they were seven and eight.  There is nothing in the orders that suggests the time between the children and their father was expected to increase after 2015.

1. Lastly the father said that [X], who suffers from a learning difficulty, would benefit from a week about arrangement because she could comprehend it more easily than a 4/10 split.  There is absolutely no evidence of a lack of capacity on the part of [X] to understand the days on which she spends with either parent.

2. I am prepared to accept that there has been a significant change of circumstances by virtue of the change in the age of the children.  However, even if all of the evidence of the father is accepted, I must still be satisfied that the potential benefit to the children of further litigation outweighs the likely negative affects the litigation is likely to bring.  That involves some consideration of the reasons for the earlier orders and the likelihood of the orders being varied.  As the 2013 orders were made by consent, there were no reasons for decision.  However, it is clear on the evidence of both parties that allegations of family violence were a feature of the 2013 proceedings and the orders contained provisions which recognised the undesirability of the parties coming into direct contact with each other at handovers of the children.

3. On the evidence of both parties, there continues to be a hostile relationship between the father on the one hand, and the mother and Mr A on the other.  There have been two protection order proceedings between the father and Mr A since 2013.  For the children to live in an equal time arrangement would require a higher level of contact and co-operation between the parties about day-to-day issues than is required if the children continue to live primarily with their mother and spend only four days with their father each fortnight.

4. The evidence of both parties and Mr A is replete with examples of tension and at times open hostility between the three adults.  On the evidence of both parents it appears the children are well aware of the tension between their parents and are not comfortable when their parents are in the same place at the same time.  The father conceded sending some abusive messages to the mother, denied others and said he may have sent another.  The mother is entitled to live free of the father’s abuse.  If the children live in an equal time arrangement there will be a greater necessity for the parents to interact which would expose the mother to risk of further abuse.  Although the father’s evidence about aggression on the part of Mr A is weak, if it was accepted the same argument applies, namely, the Court is likely to be concerned about making orders that would bring the two men into greater contact.

5. Whenever a Court makes a parenting order it is required to regard the best interests of the children as the paramount consideration. In determining what is in the children's best interests the Court must have regard to the primary considerations in section 60CC(2) of the Family Law Act 1975 which are as follows:

   (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.

6. In applying this provision the Court is required to give greater weight to the need to protect the children from harm.[22] 

   [22] Section 60CC(2A)

7. It is clear on the evidence that the children already enjoy a meaningful relationship with each parent.  Living for equal time with each parent will give them the opportunity to deepen their relationship with their father in particular.  However, an equal time arrangement will necessitate a higher level of communication and co-operation between the parents about everyday matters. Even on the untested evidence before me, I am satisfied there is a reasonable likelihood that the more contact the adult carers of the children have with each other, the greater likelihood of conflict between them.  Given the level of hostility and the age of the children, it is likely the children will be aware of this, which, in turn, puts them at risk of psychological harm.  In those circumstances, in my view, it is not likely the current orders would be varied significantly at the end of the proceedings.

8. Even if I am wrong in my assessment of the likelihood (or lack thereof) of the orders being changed, I must bear in mind the potential detriment to the children caused by the litigation itself.  The litigation is likely to cause an increase in tension in the adults as they gather evidence and prepare for a trial.  It would be difficult for the children to avoid also experiencing that tension.  Given their ages, the children are likely to know their parents’ views and may feel pressure to state their own views (for instance during a family report process) in a way which accommodates either or both of the parents.  The father’s evidence is that the children have a strong, positive and meaningful relationship with him.  For the purpose of these proceedings, I accept that.  The evidence as a whole suggests that, apart from being aware of the animosity between their parents and between their father and Mr A, the children are doing well at school and are progressing satisfactorily in all areas of their life.  In my view, the potential benefit to the children in developing an even more meaningful relationship with their father is not sufficient to outweigh the potential detriment to the children from the litigation.  In a few years, they will each be old enough to determine their own living arrangements in any event.

Conclusion

1. Based on the limited untested evidence before me, I am not persuaded further litigation will likely result in a substantial change in the children’s arrangements given the high level of acrimony and resentment between the three significant adults.  Even if the litigation resulted in a change to the existing orders, the potential benefit to be derived by the children from that change is, in my view, outweighed by the negative aspects the children will be required to endure for a period of more than 12 months until a trial can occur.

2. Accordingly, the father’s application for parenting orders will be dismissed.

Costs

1. The mother’s response filed on 17 May 2019 sought the father pay her costs.  During the proceedings, neither party made submissions in relation to costs.   In accordance with the Federal Circuit Court Rules2001, each party has 28 days to pursue any application for costs.[23]  If the mother wishes to pursue her application, she will need to notify the Court within 28 days and it will be listed in due course.

   [23] Rule 21.02 of the Federal Circuit Court Rules2001

I certify that the preceding eighty-one (81) paragraphs are a true copy of the reasons for judgment of Judge Hughes

Associate: 

Date:  28 February 2020