GARDNER and BATTS
[2019] FCWA 61
•12 MARCH 2019
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY COURT ACT 1997
LOCATION: PERTH
CITATION: GARDNER and BATTS [2019] FCWA 61
CORAM: TYSON J
HEARD: 5 MARCH 2019
DELIVERED : 12 MARCH 2019
FILE NO/S: PTW 4543 of 2018
BETWEEN: MS GARDNER
Applicant
AND
MR BATTS
Respondent
Catchwords:
FAMILY LAW - Child related proceedings – The rule in Rice & Asplund – Where previous consent orders made with respect to the parenting arrangements of the children - Where the mother subsequently filed an application seeking different final parenting orders - Where by that application, the mother sought to relocate herself and the children overseas - Where the mother alleged a significant change in circumstances – Where the father sought to dismiss the mother’s application and relied upon the rule in Rice & Asplund claiming there was no significant change in circumstances - Where the matter was determined as a preliminary issue - Where the Court is satisfied there has been a significant change of circumstances – Father’s application dismissed - Case turns on its own facts
Legislation:
Family Court Act 1997 (WA)
Family Court Rules 1998 (WA)
Category: Not Reportable
Representation:
Counsel:
| Applicant | : | Ms Johnson |
| Respondent | : | Mr Rodda |
Solicitors:
| Applicant | : | Kim Wilson & Co |
| Respondent | : | Paterson & Dowding |
Case(s) referred to in decision(s):
Rice & Asplund (1979) FLC 90-725
Searson & Searson (2017) FLC 93-788
TYSON J:
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
1 [Ms Gardner] [“the mother”] and [Mr Batts] [“the father”] have 3 sons: [Child A] born [in] 2015 and twins, [Child B] and [Child C] both born [in] 2017. The mother and father [have] lived together in a de facto relationship, which ended in April 2018.
2 On 15 June 2018 the mother commenced proceedings on an urgent basis, in which she sought orders for the children to travel to [Country A] with her on 3 July 2018. On 22 June 2018 the matter first came before the Court and an injunction was made restraining both parents from removing the children from the Commonwealth of Australia. On 25 June 2018 orders were made by the presiding Magistrate in chambers listing an urgent interim hearing in relation to the mother’s proposed travel to Country A.
3 On 29 June 2018 the matter returned to Court. Both parties participated by telephone. On that date, Orders were made by consent on a final basis and the proceedings were dismissed. The Consent Orders provided, amongst other matters, for the children to live with the mother and spend time with the father “no less than” one week day each week after work, 24 hours over the weekend, in every weekend and at such other days as agreed by the parties. The Consent Orders provided for the parents to have equal shared parental responsibility, for each parent to travel with the children on terms and conditions and for the children to travel to Country A with their mother from 3 July 2018 until 5 September 2018.
4 On 30 October 2018 the mother filed a Form 1, in which she sought, amongst other matters, permission to relocate the children to Country A. On 14 December 2018 the father filed his Form 1A in which he sought that the mother’s Application be dismissed pursuant to the “rule” in Rice & Asplund (1979) FLC 90-725. It is that discrete issue that is before me for determination.
Brief Background Facts
5 The mother was born [in] 1987 in Country A. She is 31 years of age and a full-time homemaker and parent. She lives in [Suburb P].
6 The father was born [in] 1979 in Australia. He is 39 years of age and is employed on a full-time basis as a [security officer]. He lives in [Suburb G].
7 The parties met in [Country B], while on holidays in 2010. They then had a long distance relationship, with the mother returning to Country A and the father returning to Western Australia.
8 In February 2013 the parties commenced living together, when the mother moved to Perth. The mother has not worked since living here, as a result of the birth of the children, and her visa conditions. The mother is qualified in Country A as a [nurse].
9 [In] 2015 Child A was born and [in] 2017 Child B and Child C were born. Child A is currently 4 years of age and [the twins] are currently 20 months of age.
10 The mother has been the children’s primary carer from birth. The father was initially self-employed as a handy-man. It appears that the parties had a largely traditional relationship where the mother was the primary homemaker and parent, while the father was primarily responsible for the financial support of the family. The father was involved in the care of the children when he was not at work.
11 The paternal grandmother assisted the family to care for the children at times.
12 The maternal grandmother visited Perth for around 4 weeks after the twins were born to assist. The father had surgery after she left, when the twins were around 8 weeks old. In 2017 following the father’s surgery, he was unable to work. It appears that the parties were in difficult financial circumstances during that time. The father’s family provided financial assistance.
13 The mother alleges that the father was psychologically and emotionally abusive towards her during the relationship. She says he was critical of her appearance, denigrated her including in the presence of Child A. She says he smokes cannabis on an almost daily basis and grew cannabis which he sold. She also says that the father punished Child A when he wet the bed when he was around 2 ½ years old, by pushing his head into the wet sheets, which he boasted to friends. She says the father called Child A a fag when he wanted to watch Barbie or play what the father considered were girl games.
14 The father denies the mother’s allegations. He says that the mother has, since separation, refused to speak English to Child A which is causing further difficulties with his speech development. He denies ever behaving in a psychologically or emotionally abusive manner towards the mother. The father admits to smoking cannabis and says that both parents did during the relationship. The father suggests that his use of cannabis was for pain relief. He denies selling cannabis. He says he no longer uses cannabis and since January 2018 he has been required to undergo testing through his employment.
15 Where the evidence is in dispute, I am unable to make any findings of fact, as the evidence has not been tested by way of cross-examination.
16 The parties separated in April 2018. Since that time, the children have continued to live with the mother and spend time with the father, as agreed.
17 Prior to separation the mother booked to travel with the children to Country A, she says, with the father’s agreement, which he denies. The agreement included that the father was going to travel to Country A as well, to spend time with the children.
18 The mother booked the flights to coincide with a third person who was travelling, because she needed another adult to accompany her, given the ages of the twins. The flights were booked for travel from 3 July 2018 and returning on 5 September 2018.
19 Following separation the mother placed the children’s passports with a friend [Ms G]. The father attended Ms G’s home and insisted the passports be provided to him, which she did.
20 The mother says, and the father does not deny, that he then refused to return the children’s passports. Unsuccessful attempts were made by the mother to try and negotiate her and the children travelling to Country A in accordance with the booked flights. When the negotiations failed, the mother then commenced proceedings, at which time she was representing herself.
21 When the mother commenced proceedings she sought orders on a final basis for the parents to have equal shared parental responsibility, the children live with her and spend time with the father as agreed. In her supporting Case Information Affidavit filed she stated that her and the children would return to Perth on 5 September 2018. She also deposed:
“we built our lives here and I see Australia as our home”
“me and the kids have good friends here”.
22 When the matter came before the Court on 22 June 2018, each party had the assistance of a duty lawyer. [Ms W] appeared with the mother and [Ms B] appeared with the father. The Court granted mutual injunctions, to which I have already referred.
23 On 26 June 2018 the parties signed a document titled Consent Orders, which read as follows:
[The parties] willingly consent to the orders as set out below.
1. Each party can travel with [Child A, Child B and Child C] for up to a 4 weeks per annum from 1st of January to the 31st of December. Visits may include Birthdays and Christmas.
2. With any other travel time agreed to by both parties.
3. If one party is travelling alone for more than two weeks the other party can travel with the children [Child A, Child B and Child C] for four weeks or the time the other party will be away.
4. A third party mutually agreed upon by both parties will hold the children’s passports and will only provide them to one party through written consent of the other. On return to Australia the passports must be returned to the agreed holder within a week.
5. [The father] agrees to an Eight week visit to [Country A] this one time leaving on the 03/07/2018 with the assurance that the children return to Australia on the 05/09/2018 as per the travel itinerary provided to [the father] on the 16/05/2018.
6. [Child A, Child B and Child C] will spend time with their father no less than
(a) One week day per week after work.
(b) 24 hours over the weekend period every weekend.
(c) Any other days agreed to by both parties.
7. 50/50 split between both parties of the equity of the property at [K Rd, Suburb G]. The mother agrees to have her name removed from the title of the said property at [the father’s] cost.
8. It is agreed that all assets have been distributed to the satisfaction of both parties and no further claims will be made.
9. All moneys once agreed upon to be paid to [the mother] on her return from [Country A] and a legal agreement will be signed to say that [the mother] will have no further claim against the property.
24 The Minute was negotiated directly between the parties.
25 On 29 June 2018 the matter returned to Court, on this occasion, before a different Magistrate. Each parent attended by telephone. It is clear from the transcript that there were technical difficulties, which resulted in part of the hearing being conducted effectively by way of a shuttle telephone calls, because the Court was unable to have both parties on the telephone at the same time. The presiding Magistrate had a copy of the parties’ Minute.
26 Following a lengthy hearing before the presiding Magistrate, Consent Orders were made on 29 June 2018, on a final basis. The Consent Orders were only in relation to child-related proceedings. The Court declined to make any orders in relation to financial matters, as they were not properly before the Court. The father agreed to deliver to the mother the children’s passports by 6:30 pm on 1 July 2018. Liberty was granted to relist the proceedings urgently if the passports were not delivered in accordance with the orders and the mother’s Form 1 was then dismissed.
27 On 30 October 2018 the mother filed a further Form 1, prepared by solicitors acting on her behalf. On an interim basis she sought the proceedings be expedited to enable her to relocate with the children to Country A on a day convenient to the court before 1 September 2019. On a final basis she set out lengthy orders which included liberty to relocate with the children to Country A and for the children to continue to spend time with the father in accordance with the orders of 29 June 2018. She otherwise set out arrangements for the children to spend time with the father as agreed and failing agreement upon her relocation as set out on a gradually increasing basis.
28 In November 2018 the father was served and on 14 December 2018 he filed his Form 1A and Case Information Affidavit. The father sought, on both an interim and final basis, that the mother’s application be dismissed. In the alternative he seeks, on an interim basis, for the appointment of a single expert witness and further orders in relation to the children spending time with him.
29 On 19 December 2018 the proceedings came before the Court, when they were marked complex and adjourned to the duty Judge list on 21 January 2019. On that date the proceedings were listed for an interim hearing in relation to the Rice & Asplund (supra) issue only.
What are the current arrangements for the children?
30 The children live with the mother and spend time with the father, in accordance with the Consent Orders, which reflected the arrangements after separation. The children usually spend each Tuesday from 3.30 pm to 6.30 pm and from Friday afternoon until Saturday afternoon with their father. The parties have agreed for the children to spend some additional time with the father.
31 The mother complains that on occasions the father has cut visits short or changed plans at short notice. The father complains that the mother has been obstructive and difficult in relation to arrangements for him to spend time with the children, particularly in relation to negotiating additional time.
32 Child A is currently attending kindergarten in Suburb P. He also attends occupational and speech therapy on a regular basis. The children all attend day-care.
33 Each child has a number of health issues. The twins have cyanotic breath holding, where they hold their breath until they turn blue and lose consciousness, which was a condition the father suffered from as a child.
34 Child A has hyperinsulinemia for which he requires oral medication and has regular medical appointments to monitor his blood sugar levels.
35 The father is assessed and pays child support of around $81 a week, in addition to 50% of the day care fees for the children. The mother says the assessment is based on the father’s 2017 Income Tax Return, when he was unemployed for part of the year.
What is the evidence relied upon?
36 The mother relies upon her Case Information Affidavit filed 30 October 2018 and her affidavit filed 11 February 2019. The father relies upon his Case Information Affidavit filed 14 December 2018 and his affidavit and the affidavit of his mother filed 25 February 2019.
37 I have also read and carefully considered the transcript of the hearing on 29 June 2018, together with the Form 1 and Case Information Affidavit which the mother filed on 15 June 2018.
Procedural Fairness
38 Both parties are legally represented in the current proceedings.
39 When the father filed his Form 1A, he was seeking an order to dismiss the mother’s application on both an interim and final basis. In his Case Information Affidavit, he set out in paragraph 28 that he did not consider there was any material change in circumstances to warrant further proceedings being commenced.
40 When the proceedings first came before me, orders were made for each party to file and serve further affidavit evidence and the proceedings were adjourned for determination in relation to the preliminary issue on 5 March 2019. Both parties agreed the matter could proceed on the basis of submission and on the affidavit material that has been filed.
41 Each party has filed further affidavits in accordance with the Court’s orders. The hearing took place on 5 March 2019.
What is the Law?
42 The law to be applied in this determination is set out in Part 5 of the Family Court Act 1997 (WA) together with the Family Court Rules 1998 (WA).
43 Part 5 of the Act does not preclude further applications for parenting orders being filed after final parenting orders have already been made. Indeed s 89(2) of the Act specifically grants a Court power to discharge, vary, suspend or revive some or all of an earlier parenting order.
44 However, it has long been recognised that continual litigation with respect to the arrangements of children is detrimental to the children, the parties to the proceedings and contrary to accepted public policy.
45 In the decision of Rice and Asplund (supra), Evatt CJ, with whom Pawley SJ and Fogarty J agreed said the following at page 78,905:
The principles which, in my view, should apply in such cases, are that the court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that… there is some changed circumstances 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…
46 Justice Murphy recently summarised the principles to be applied in these cases in Searson & Searson (2017) FLC 93-788, which I respectfully set out now:
8.It is well settled that the “rule in Rice & Asplund” can be applied at the outset of a hearing or proceedings or at the end of a hearing.
9.In the important decision of SPS & PLS, (“SPS”) Warnick J held that the discussion of the rule in the various authorities had “not always used consistent terminology”. His Honour noted, in particular, that the term “threshold” has had different connotations. His Honour went on to say that he would in that judgment “refer to the situation arising when the question is posed and answered at the outset of a hearing as treatment of the question as a ‘preliminary matter’”. It is in that sense that the expression is used in these reasons of mine. As it seems abundantly clear to me, the treatment of the rule in that manner is what was contemplated and undertaken by the parties and by her Honour in the proceedings below.
10.In SPS, Warnick J went on to hold that:
… At whatever stage of a hearing the rule is applied, its application should remain merely a manifestation of the “best interests principle”.
…
The application of the rule is closely connected with the nature of, and degree of, change sought to the earlier order.
11.His Honour went on to say this:
… [I]n my view when the threshold question described in Rice and Asplund is determined as a preliminary matter, it remains a determination “on the merits”. Where an application is dismissed at a preliminary stage, it is not dismissed for some technical reason, such as the failure of a party to appear or some lack of compliance with form and procedure but rather because, assuming the evidence of the applicant is accepted, there is an insufficient change of circumstance shown to justify embarking on a hearing. Though sometimes unstated, the underlying conclusion will or ought be that the interests of the child in not being the subject of further litigation is more powerfully in the child’s welfare than to allow the application to continue.
(Emphasis added)
12.Yet, as his Honour was at pains to point out, the rule is not the application of some esoteric principle but rather, the practical application of a principle designed to avoid “endless litigation” to the detriment of the relevant children in circumstances where otherwise the principles of res judicata do not apply.
13.Thus, for example, Nygh J said in McEnearney & McEnearney:
… the principle that there be an end to litigation has equal force in custodial disputes and in some respects may have even greater force in custodial disputes. The last thing, of course, that this court would wish to see would be a perennial football match between parents who because the strict principles of res judicata are not applicable might seek to canvass again and again the question of custody of a child with the enormous psychological harm which they would be inflicting not only upon each other but especially upon the child.
14.To similar effect, Warnick J said in SPS:
Another end served by the rule is that it avoids one judge substituting his or her opinion of what is in the best interests of a child for that of another judge, though both opinions are based on the same or similar facts. This “evil” is avoided by a requirement that the previous order should not be altered unless there has been a change of circumstances sufficient to justify that result.
(Emphasis added)
15.The “evil” referred to is the undoubted harm to children of “a perennial football match between parents” and the canvassing “again and again” of issues relating to their best interests. That situation can in my view be distinguished from circumstances in which the parties express their agreement about parenting arrangements in a consent order but are now no longer in agreement and where it is said that the now absence of agreement is due to circumstances that have changed since the making of the consent orders.
16.In Marsden & Winch the Full Court said:
[57]. In Miller… the court posed the question:
[105] Adapting the language used by Warnick J in SPS and PLS … the question for consideration is: assuming the evidence of the [applicant] is accepted, is there a sufficient change of circumstances shown to justify embarking on a hearing?
[58].That question might be better formulated in another way in the following proposition, namely that there is a requirement:
(1)for a prima facie case of changed circumstances to have been established; and
(2) for a consideration as to whether that case is a sufficient change of circumstances to justify embarking on a hearing.
(Citations omitted)
47 Both parties were clearly aware of the principles to be applied, given the submissions made on each of their behalves.
Has the mother established a change of circumstances?
48 The Consent Orders are summarised above. The mother now seeks, in essence, to:[1]
1.Discharge the Consent Orders insofar as they provide for the children to spend time with [the father].
2.Relocate with the children to [City E] in [Country A] “on a date convenient to the Applicant but in any event before 1 September 2019”.
3.Upon relocation, for her to provide contact details for her in [Country A] and otherwise specifies how the children are to spend time and communicate with their [father] including by electronic means, in [Country A] and in Perth. She sets out how the parties are to share the costs of the children’s airfares and those of any accompanying adult.
4.Specify the time the children are to spend with their [father], following their relocation, on an incremental increased basis, together with time for the children to spend with their [father] on special occasions including Christmas and Easter.
5.Provide for the exchange of photographs, videos, letters, cards and gifts between the children, the [father] and members of his family together with the exchange of school reports.
[1] Refer to the Form 1 filed 30 October 2018.
49 In the mother’s affidavit filed 11 February 2019, she sets out at length under the heading “Events surrounding making of orders dated 29 June 2018”. In summary she says that prior to separation, [in] March 2018, she booked and paid for travel to Country A for her and the children from 3 July until 4 September 2018, in consultation with the father.
50 After separation, the father made repeated threats that he would obtain “sole custody” of the children, he accused her of being mentally ill and he would not agree to her travelling to Country A with the children. He refused to return the children’s passports to her and she made the application in a state of desperation. She was anxious to return to Country A and to visit her family, following separation. Her family and friends had assisted her to meet the costs of their flights, as she could not afford to do so on her own.
51 The father then suggested to the mother he would return the passports if she agreed to his proposals to resolve both parenting and financial matters.
52 The mother says while she had some limited assistance from the duty lawyer when the matter first came before the Court, she did not fully understand what was happening. When the Court did not make orders on that date to allow the children to travel, she was sobbing uncontrollably and was distraught.
53 Subsequently the parties reached an agreement which was set out in the signed Minute, some of which formed part of the Consent Orders. The mother says she did not fully comprehend what took place when the matter was before the court on 29 June 2018 and she was desperate to have the children’s passports returned, to enable them to fly on 3 July 2018.
54 In my view, the events that took place prior to the orders made on 29 June 2018 cannot be taken into account as potential changes in circumstances since the making of the order. However, the circumstances in which the Consent Orders were made are relevant.
55 The alleged changes which the mother relies upon our summarised in paragraphs 108 to 106 of her affidavit, as well as contained in her Case Information Affidavit. In summary, she says:
(a)Firstly, travelling to [Country A] after the Consent Orders was helpful and alleviated some of the stress and anxiety she was experiencing following separation. She benefited from the support of her family and friends. She has no family support in Western Australia. She now wishes to live in [Country A], where her mother, step-father, her half-brother and step-sister live close by in [City E]. She feels overwhelmed and lonely and is struggling to care for 3 very young children, without adequate support, in Western Australia, given their various needs.
(b)Secondly, she had not understood that the orders made were final. She thought they were interim orders only, which she entered into without the benefit of legal advice and at a time when she felt bullied and intimidated by both [the father and his mother]. Based upon that understanding, she contacted a solicitor on 10 September 2018. She invited [the father] to attend mediation and he refused. She then commenced proceedings with the certificate issued. In response to the invitation to attend mediation, [the father] replied “im not letting my boys go to [Country A]…” and “If you want to move to [Country A], settle the house, give me full custody of my boys and go, your young. Enjoy [Country A] and come back whenever you want, and if your respectful to me you can stay in the donga as long as you want, ill set it up”.
(c)Thirdly, she seeks to relocate with the children to [Country A] as she considers those arrangements are in their best interests. She is unable to work as a [nurse] in Australia. She points to the limited child support she receives and the costs of caring for the children. [The mother] is otherwise reliant on government benefits. In [Country A] she considers the children would be entitled to free day-care and that she would be able to resume working, to enable her to better financially provide for the children.
(d)Finally, she says that the Consent Orders do not provide for the children to spend time with the [father] on school holidays or on special occasions, which she considers to be appropriate. She has agreed to the children spending time with [their father] outside of the Consent Orders, as both the [father] and maternal grandmother have told her “this will go against you” if she refuses.
56 The father says that there has not been any substantial change since the Consent Orders were made. He admits that the mother became hysterical on 22 June 2018 when orders were not made as sought by her. He claims when they left Court that day, the mother said that he would never see the children again.
57 He acknowledges the parties had direct negotiations following the first court date in an effort to resolve matters which resulted in them signing an agreed minute on 26 June 2018. The Minute reads at the end “once signed these orders are final and absolute. No changes will be made; an addendum can be added any time.” He says the mother was fully aware that the orders sought were final.
58 He points to the transcript of the hearing, in which the mother engaged with the Magistrate, asked questions and at no point do her comments suggest either a lack of understanding or any confusion as to what was taking place. He says the mother is intelligent and articulate. While English is not her first language, she is competent in English.
59 He says he has continued to spend time with the children in accordance with the consent orders but notes on two occasions he has spent additional time with them.
60 He denies there was any suggestion the parties would have further discussion about the arrangements for the children’s care on her return. He admits declining to attend mediation but says he did so because the Consent Orders were in place. On the basis he did not agree to the mother’s proposal to relocate, he did not consider there was anything to be achieved at mediation.
61 He points to the fact the mother has liberty to continue to travel to Country A with the children into the future, as they have done in the past. He says the mother has support in Australia and that she has been able to maintain her relationship with her family in Country A since living in Australia, given she has travelled back to Country A each year. He also refers to members of the mother’s family coming to visit her in Australia.
62 The father says those arrangements can continue pursuant to the Consent Orders. He and his parents are happy to care for the children if the mother wishes to travel to Country A on her own in the future.
63 He says the mother has a number of friendships, which she maintains. The father otherwise says on 1 June 2018 the mother wrote to him confirming that her life was in Australia, she considers Australia to be her home and she has good friends and a life here. He says the children have the benefit of a close relationship with him and his extended maternal family, which is in their best interests and that would be lost if they were permitted to relocate to Country A. He does not speak the language and has raised concerns that Child A’s English has regressed since he returned from Country A. He says the mother has little regard for him as a parent and is worried that she is not supportive of his relationship with the children. He fears their relationship will be terminated if the mother is permitted to relocate them to Country A.
64 The father denies that the mother is isolated in Perth and says she has a support-network. The father says the paternal grandmother is “very happy to help out with the children should she require her support”. He denies that the mother was bullied or intimidated into the Consent Orders and refers to the exchange of messages between Ms Gardner and his mother on 24 June 2018, when Ms Gardner confirmed she was entering into the agreement willingly.
65 I note that neither party was legally represented when the matter was initially before the Court. The mother filed the documents herself. No documents were filed by the father. The parties had two Court appearances very shortly after the mother commenced proceedings. On the second appearance, the Court made final orders by consent, which concluded the parenting proceedings. The parties had sought that orders be made in relation to financial matters, which the Court declined to do.
Discussion and Conclusions
66 I am conscious that there may be a stronger reason to refuse the re-litigation of parenting matters where a Court has finally determined an application on its merits, at trial. That did not take place in this matter.
67 I am equally conscious that this was a matter where both parties were not legally represented, apart from some limited advice from the duty lawyer service. They negotiated orders which were made on a final basis, only last year. This is not a case where the parties have been involved in extensive or lengthy prior litigation. There has not been a trial or any findings of fact. The parties have not even attended family dispute resolution.
68 After careful consideration of the evidence, I am satisfied that there has been a sufficient change in circumstances, to justify the Court embarking on a further hearing, notwithstanding the previous Consent Orders that were made on 29 June 2018, and the mother’s Form 1 was filed on 30 October 2018, some 4 months later.
69 I have reached that conclusion for the following reasons:
•The best interests of the children remain throughout the paramount consideration;
•The proper administration of justice requires orders not be changed unless there is sufficient and weighty new facts and circumstances which throw sufficient doubt on the desirability of continuing the arrangements brought about by the previous order;
•While I am mindful that the Court should be reluctant to assume jurisdiction too soon after there has been a full and adequate hearing, that was not the situation in the current case, as the chronology clearly demonstrates. The previous proceedings commenced on an urgent basis on 15 June 2018 and were concluded on 29 June 2018, with only the mother having filed material, two Court appearances and neither party being legally represented;
•The previous agreement reached between the parties as reflected in the Consent Orders, has broken down. The Orders were predicated upon both parties living within relatively close proximity of one another, given the arrangements for the children to spend time with the father and live with the mother. The mother’s application and proposed orders now entail her living with the children in Country A;
•On both parties’ cases, there have been difficulties since the Consent Orders have been made. The father claims the mother has been obstructive and difficult at times when he has attempted to negotiate additional time with the children. The mother says that she has felt bullied and intimidated by the father and his mother into agreeing for the children to spend additional time with him, over and above what the Consent Orders provided;
•The Consent Orders are deficient to the extent they failed to provide for the children to celebrate special occasions with either parent or for the children’s time with each parent during the school holidays. The Consent Orders do not make any provision for the progression of the children’s time with the father, given their ages. These deficiencies are highlighted in the father’s application, which seeks in the alternative to the mother’s application being dismissed, for orders to be made to address these issues;
•At the time of making the Consent Orders, the mother clearly and repeatedly expressed that she intended to remain living in Perth with the children. The father directed the Court’s attention to the multiple occasions in which the mother made such statements to the Court in her filed documents. In contrast, the mother now says that is no longer her intention and she considers it is in the best interests of the children they be permitted to relocate with her to Country A;
•The mother seeks to relocate the children to Country A. That change in terms of her proposals for the future living arrangements for the children is significant and substantial;
•The mother has not acted in a pre-emptory way in any respect. It appears to me, the mother recognised the issues for the children were significant. Upon her return from Country A, she promptly invited the father to attend family dispute resolution to discuss the future parenting arrangements. He refused to attend. She then made an application to the Court seeking for the Court to determine those issues. Whatever may be argued as the parameters of the so-called rule in Rice & Asplund (supra), I cannot see how the rule could apply in the circumstances of this particular case to prevent these matters being determined by the Court;
•The mother’s proposal to relocate is a new application now before the Court. It was not a matter that was previously raised, much less litigated or indeed determined following a full hearing. The change in the mother’s proposals in my view, requires determination which will entail further hearing;
•Based upon the mother’s evidence, which I must take at its highest when considering the application as a preliminary matter, I am satisfied that the change in circumstances are such that if taken into account, there is a real likelihood that a change in orders may follow;
•I am not satisfied, nor did the father suggest, that the further litigation would adversely impact upon the children. Given the very brief and curtailed previous proceedings before the Court, it appears unlikely that the children were aware of the litigation or exposed to such litigation, which took only a matter of weeks.
70 While the father points to a number of reasons as to why the mother’s application to relocate is not in the best interests of the children, I am not at this time, on the basis of untested evidence, able to make any findings of fact, as already indicated.
71 I am satisfied that the mother has established a prima facie case of changed circumstances and I am satisfied that there is a reasonable likelihood of the orders being varied following a contested trial. That should not be interpreted by either party, in any way, as predetermining the likely outcome of the proceedings.
72 It is therefore my determination that these proceedings should be allowed to continue. I intend to make an order dismissing the father’s application and will hear from the parties as to the further directions and orders that are now sought, in light of these reasons. I propose, subject to hearing from the parties, to list the proceedings for a readiness hearing and otherwise program the matter to trial.
73 For those reasons there will be the following orders:
1.Paragraph 1 of the interim orders sought by the Respondent in his Form 1A filed 14 December 2018 be dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.
CD
Secretary11 MARCH 2019
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