Gaston and Sankot-Gaston
[2009] FMCAfam 478
•18 May 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| GASTON & SANKOT-GASTON | [2009] FMCAfam 478 |
| FAMILY LAW – Parenting orders – preliminary application to dismiss in accordance with Rice & Asplund. |
| Family Law Act 1975, ss.65D, 65DAA |
| Rice & Asplund (1979) FLC 90-725 Bennett & Bennett (1991) FLC 92-191 King & Finneran (2001) FLC 93-079 F & C [2004] FamCA 568 CDJ v VAJ (1998) 197 CLR 172 Miller & Harrington [2008] FamCAFC 150 Cortes & Cabrera [2007] FMCAfam 293 SPS & PLS [2008] FamCAFC 16 Archbold & Archbold (1984) FLC 91-532 |
| Applicant: | MR GASTON |
| Respondent: | MS SANKOT-GASTON |
| File Number: | BRC 1456 of 2009 |
| Judgment of: | Wilson FM |
| Hearing date: | 14 April 2009 |
| Date of Last Submission: | 14 April 2009 |
| Delivered at: | Brisbane |
| Delivered on: | 18 May 2009 |
REPRESENTATION
| Counsel for the Applicant: | N/A |
| Solicitors for the Applicant: | In person |
| Counsel for the Respondent: | N/A |
| Solicitors for the Respondent: | Biggs Fitzgerald Pike |
ORDERS
The application filed 24 February 2009 is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Gaston & Sankot-Gaston is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRC 1456 of 2009
| MR GASTON |
Applicant
And
| MS SANKOT-GASTON |
Respondent
REASONS FOR JUDGMENT
On 17 June 2002, and again in January 2006, the parents of [X], born [in] 1997, and [Y] born [in] 1999 agreed to parenting orders in respect of their two children. The father now seeks to have the latter orders discharged, and for alternative parenting orders to be made in their place. The mother opposes the father’s application, and submits that the father’s application should be dismissed at this early stage of the new proceedings, in accordance with the principle stated in Rice & Asplund (1979) FLC 90-725. I will refer in more detail to the so-called ‘principle’ in due course.
By his initiating application, filed 24 February 2009, the father sought interim and final parenting orders, in identical terms. The father’s proposed orders were:
(1)That all previous orders or parenting plans be discharged.
(2)That the parents equally share parental responsibility for long term decision making for the children, [X] born [in] 1997 and [Y] born [in] 1999.
(3)That notwithstanding the provisions of order 2:-
(a)The mother shall be responsible for the daily care, welfare and development of the children when they are living with her, and
(b)The father shall be responsible for the daily care, welfare and development of the children when they are living with him.
(4)The mother and father shall:-
(a)Keep the other informed at all times of their residential address and landline telephone numbers;
(b)Keep the other parent informed of the names and addresses of treating medical or other health practitioners who treat the children, and authorise these practitioners to provide the other parent with information that they are lawfully able to provide about the children;
(c)Inform the other parent as soon as reasonably practicable of any medical condition, or significant health issue or significant injury suffered by the children.
(5)That the parents authorise by this order, and this order is sufficient authority to the schools, day care centres and health providers and counsellors or other allied health professionals attended by the children, to provide all information to either parent about the children’s educational progress or other school related activities, and health and issues of wellbeing and either parent may seek school photographs, reports and certificates at the requesting parents expense.
(6)That during the time the children are with either parent, that parent will:
(a)Respect the privacy of the other parent and not question the children about the personal life of the other parent;
(b)Speak of the other parent respectfully;
(c)Not denigrate or insult the parent or their family, in the hearing or presence of the children, and use their best endeavours to not allow any third parties to denigrate the other parent in the hearing or presence of the children.
(7)That the children are to live with and spend time with each of the parents at all times as agreed between the parents, but failing agreement as follows:-
(8)That the children shall live with the mother from 3pm Friday for one week, and then live with the father from 3pm Friday for one week, such time to alternate thereafter including school holiday periods.
(9)That both parents may nominate one holiday period each year where they are entitled to have the children in their care for three full weeks, with the alternate fortnight time to recommence upon their return with the children to be with the other party for the first two weeks.
(10)That the children shall spend time with their parents for special days, in priority over the “usual” fortnightly time referred to in paragraph 8 above, as follows:-
(a)For Christmas Day:-
(i)In even years from 3.00pm on Christmas Eve until 2.00pm on Christmas Day with the father, and from 2.00pm Christmas Day until 5.00pm Boxing Day with the mother, such time to alternate between the parties each year thereafter.
(b)On the birthday of each child and the parents (with the parent they are not living with that day) and with the other child to be included:-
(i)If a school day from school until 6.00pm;
(ii)If not a school day from 1.00pm until 6.00pm;
(iii)With that parent to be responsible for collection and return of the children.
(c)With their father for Father’s Day (if the children are not otherwise with him) from 9.00am until 5.00pm with the father to be responsible for the collection and return of the children within Toowoomba.
(d)With their mother for Mother’s Day (if the children are not otherwise with her) from 9.00am until 5.00pm with the mother to be responsible for the collection and return of the children within Toowoomba.
(11)The children shall communicate with the parents on the telephone at such times as a child reasonably requests and the parents are at liberty to telephone the children at all reasonable time, and the parents shall:-
(a)Arrange for the children to call the other parent on the following night if for any unforeseen circumstance, the children miss a telephone call from that parent and the parent has left a message to that effect;
(b)Ensure the children have privacy and are not interrupted during the call.
(12)That the father shall collect the children at the commencement of his time from the children’s school and the mother shall collect the children for the commencement of her time from the children’s school, or if not a school day each from the other parties residential address.
(13)That each parent shall ensure all items, clothing, school supplies, games and toys that the children require be provided at the time of collection of the children, or if they are not available, the parent that has the items at their home will deliver them to the other parent as soon as possible thereafter.
(14)That the parents each make arrangements to pay half for all school fees, book hire fees, and agreed extra curricular activities for the children.
(15)The parent that receives the request for payment for school excursions for the children will pay the initial sum requested and the other parent will pay half of the cost (if the cost is greater than $10.00) to the other parent within 14 days of notice of the account.
(16)That each parent will have their own school uniforms and sports uniforms, with the children to be returned to the other parent in that parents uniform at the end of each period of time.
(17)That each parent will pay half for all agreed medical, dental and specialist appointments and treatments, with the parent taking the child to provide receipts to the other parent, and the other parent to pay that parent half of the cost (once Medicare rebates if applicable have been taken into account), within 14 days of receipt of the account.
(18)That the father will continue to make payment for the Health insurance for the children.
(19)That the parents will sign all documents required to have an Australian Passport issue for the children. The parent who purchases the passport is entitled to retain the passports in their care, but is required to provide them to the other parent if the other parent has provided notice that they intend to travel with the children, 28 days prior to the travel commencing, with the parent travelling with the children to return the passport within 7 days of return to Australia.
(20)That both parents agree to provide an itinerary and contact details for the entire period of any international travel with the children at least 28 days prior to any travel occurring, and the parents will only take the children to Hague Convention Countries unless otherwise agreed between the parties.
(21)That the parties be restricted from enrolling the children, or taking either child to any allied health professionals or counsellors without the other parties prior consent.
I observe that in this document the father does not seek an order that a family report be prepared, on an interim basis. I raise this omission in light of the importance placed by the father on the children’s alleged wishes expressed to him, as being one of the changes in circumstances relied on as justifying the Court revisiting what parenting orders are in the children’s best interests. I acknowledge that the father represented himself on the application. However, his wife is a solicitor. The father put before the court written submissions, in which reference is made to the case law and to specific sections of the Family Law Act 1975. In the written submissions the father seeks an order that a family report be prepared. I proceed on the basis that the father seeks to amend his application to pursue such an order.
The orders sought by the mother in her response, filed 9 April 2009 (the last working day before the matter was listed to be heard by the Court), were straightforward:
(1)That the Application filed 24 February 2009 in this Honourable Court be dismissed.
(2)That the applicant pay the respondent’s costs of and incidental to these proceedings.
(3)Such further or other orders as this Honourable Court may deem meet.
In his affidavit, filed 24 February 2009, the father deposes:
a)As to the circumstances in which the parents met, and as to his involvement in each of the children’s care leading up to separation;
b)That the parties separated in October 2000;
c)As to the time that he spent with the children immediately following separation;
d)That in mid 2001 he started to spend time with the children at his home from Friday afternoon to Saturday morning in one week, and from Saturday until Tuesday in the following week;
e)That by late 2001 the parents each had legal representation, and were negotiating regarding parenting proposals;
f)That in March 2002 he commenced cohabitation with his current wife, who then had two children aged 6 and 2 years respectively;
g)That he commenced court proceedings after the mother threatened to cease his time with the children;
h)That as a result of a dispute resolution conference, parenting orders were agreed to, that were embodied in a Court order made on 17 June 2002;
i)That subsequent to the making of the orders, the mother refused to allow the father to spend holiday time with the children;
j)The father and his wife had a child, [Z], [in] 2002;
k)As to the problems that were encountered with the father and his wife’s blended family unit;
l)That prior to separation the parents had agreed on which primary school the children would attend;
m)That the mother wanted to change [X]’s school in late 2002, and enrolled him at [G] School, against the wishes of the father;
n)That early in the 2008 school year the mother contacted the father regarding changing [X]’s school, as a result of which the parents agreed that [X] would attend [S] School;
o)[Y] has commenced attending [S] School as well, and both boys are doing well at this school;
p)That the mother has taken the children to numerous health and allied professionals. This conduct has occurred over a lengthy period of time;
q)In 2006 or 2007 the mother enrolled [X] with a kinesiologist. The father paid for one half of the cost of treatment and often attended appointments with [X];
r)The parties made further consent parenting orders in January 2006;
s)During the years the time that he has spent with the children each Monday after school occurred when the father was not working. He arranged for the children to be collected from school. Between early 2007 and August 2008 the father was required to work on Mondays so he arranged for his wife to collect the children from school;
t)That he has always sought that his time with the children be shared;
u)That from late 2007/early 2008 [X] has regularly stated that he wants to live with the father in a shared care type arrangement. [Y] has said on many occasions that he feels shared care is the fairest way for things to occur;
v)In early 2008 [X] started to talk about a shared care arrangement on a weekly basis and would often say that he did not want to return to the mother’s;
w)That in June 2008 he wrote to the mother suggesting a shared care arrangement;
x)That in June 2008 he and his wife bought a home that is only a few blocks from where the mother lives. The two properties are within walking distance
y)That he has recently found out that in 2002/3 the mother took [Y] to the [omitted] Hospital and alleged that the father’s wife’s eldest child had sexually abused him.
It can be seen that each of the matters referred to in subparagraphs (a) to (m) occurred before the parties agreed to the parenting orders in January 2006. The discussion concerning the change of the children’s school, and the appointments with the kinesiologist occurred subsequent to that date, but the parties reached an agreement about those matters. The two remaining matters concern the asserted expressed wishes of the children, and the father’s recent discovery of the allegations referred to in subparagraph (y) above.
In her affidavit, filed on 9 April 2009, the mother deposes:
a)That she disagrees with a number of matters deposed to by the applicant relating to events that occurred both prior to separation, and in the period leading up to the consent orders of January 2006;
b)As to why [X]’s school was changed;
c)That the parents went to mediation in 2002 as the children were being affected by their arrangements;
d)That the parents went back to mediation in 2006 as the father was intimidating her with legal threats if she did not agree to his requests;
e)That the boys tell her they are happy with how much time they go to their father’s for and how much time they spend at home. They say they are sick of going back and forth between the households;
f)That the boys have told her that they don’t want to live with their father on a week about basis
g)Says that the boys are settled and happy, and she doesn’t want any change to the care arrangements;
h)That communication is difficult with the father;
i)That the father is not always responsive to the needs of the boys;
j)That she remains concerned about the father’s verbal abuse of her; and
k)That she is concerned that the father and his wife drink to excess.
Again, much of the mother’s affidavit evidence is addressed to events that occurred prior to the making of the January 2006 consent orders.
The father sought leave at the hearing to file a reply affidavit. Much of this was objected to by the solicitor for the mother. I propose to receive the affidavit. Much of it is submission, and will be treated as such.
The consent orders of 17 June 2002 provided that:
a)The children were to live with the mother;
b)The children were to spend time with their father each alternate weekend from 5:15 pm Saturday until 8:00 am Tuesday, and on each Wednesday evening for two hours;
c)The children were to spend time with the father on special days, and for up to one week during school holidays if the father was himself on leave.
The consent orders of January 2006 provided, inter alia, that:
a)The children would continue to live with the mother;
b)The children would spend time with the father every second weekend from 6:00 pm Friday to 8:45 am Tuesday, and on each other Monday from after school until 7:00 pm;
c)The children were to spend time with the father on special days, and for one half of school holidays.
As stated above, the father now seeks parenting orders that would see the children spend equal time in both households. The mother seeks to have the father’s application dismissed as failing to surmount the threshold imposed in accordance to what is often described as the principle in Rice & Asplund.
The threshold issue, as I have described it, is often ascribed to the decision of the Full Court of the Family Court in Rice & Asplund (1979) FLC 90-725, although the principle predates that decision. The Act permits the Court, by s.65D, to make a parenting order that discharges, varies, suspends or revives some or all of an earlier parenting order. There are, however, no guidelines in the Act as to when a Court may refuse to entertain an application for variation or discharge of an existing order. The Act does not prescribe the matters that the Court should consider in determining whether or not to exercise its jurisdiction to so act.
In Rice & Asplund Evatt CJ said at pp.78,905-6:
“The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that, to quote Barber J., there is some changed 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 (passage quoted in Hayman and Hayman (supra), at p. 75,680). These are not necessarily matters for a preliminary submissions, 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 principles 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.
Once the court is satisfied that there is a new factor or a change in circumstances, then the issue of custody is to be determined in the ordinary way. The court must apply the principles of sec. 64 and weigh up the factors for and against the proposals of each party, having regard to the welfare of the child as the paramount consideration. One of these factors is the length of time the child has been in a particular situation. Another is any earlier decision of the court, and the reasons for that decision. The possible advantages or disadvantages of a change in custody need consideration along with all the other usual factors. While the court should give weight to any earlier decision and, in particular, to any findings of fact, the judge is not bound by the earlier court’s assessment of the parties or views as to the best interests of the child. These are matters which cannot be determined by any fixed or absolute standard.”
There the Full Court stated that these were not matters for a preliminary submission. However, later cases have ameliorated that position. In Bennett & Bennett (1991) FLC 92-191 the Full Court of the Family Court said, in a joint judgment, at p.78,262:
“As to the second point, it is, we think, a matter of discretion as to whether a Judge embarks upon a full hearing of a matter or determines the threshold question as to a change in circumstances. This is in no way to derogate from the general principle expressed by the Full Court in Rice and Asplund (1979) FLC 90-725, and in Zabaneh and Zabaneh (1986) FLC 91-766, that fresh application for custody should not be entertained unless there exists a substantial change in circumstances. In some cases, however, and her Honour apparently considered that this was one of them, it is not easy to determine the threshold question without going into the merits of the matter. Obviously, if this is done, and as a result of taking such a course, the trial Judge comes to the conclusion, as her Honour did, that a change of custody is warranted in the interests of the child, then it would be unthinkable not to give effect to such a conclusion upon the basis that no change in circumstances had been shown. The fact that the determination as to whether or not to deal with a change in circumstances as a preliminary issue or to proceed to a full hearing is a discretionary matter, is supported by the remarks of the High Court in refusing leave to appeal in the recent case of Lowe v Lowe (6 April 1990).”
In King & Finneran (2001) FLC 93-079 at p.88,367 Collier J said:
“40. Clearly, in Rice and Asplund itself and the following authorities, there is no indication or guideline as to the manner in which the court is to reach its determination as to whether or not the matter will be dealt with as a threshold test.
41. The rule in Rice and Asplund is a rule evolved to protect children from involvement in further unnecessary litigation. To require a court to make a detailed determination of the maters set out in section 68F would defeat the purpose of that protection. It would mean that before the matter could be dealt with, a complete hearing, or as I understand the appellant’s submissions at least a hearing dealing with the section 68F factors, would have to be undertaken and completed.
42. A judge or magistrate exercising jurisdiction under the Family Law Act is not required to undertake the exercise of identification and evaluation that the husband urges. To do so would be to abolish for all effective purposes the opportunity of a court to make a threshold determination in cases where such an early end to the litigation was the best result for the children.
43. The husband’s line of argument in this regard is flawed. It is not the case that an application of the Rice and Asplund test divides or compartmentalises a matter into a threshold component and a merit component. It is clear that a trial judge has a discretion as to whether or not a deal with the matter at a threshold level or to embark upon a full hearing (see Bennett and Bennett (1991) FLC 92-191).
44. To apply the test in Rice and Asplund is to make an assessment on the material then available to the court as to whether or not the matters raised in that material make it necessary or proper in the best interests of the children, the subject of litigation, to allow further proceedings. In arriving at such a decision, the court will give consideration to the importance or seriousness of the issues raised, both individually and where necessary collectively, and the impact that they may have on the children. It may be necessary to assess whether or not the matters are indeed matters of change or whether they are completely fresh issues that require revisiting the earlier decision. This is not always a clear distinction.
…
49. Clearly, both words indicate something out of the ordinary course of events. To be either significant or substantial is to indicate that a matter is of importance, of consequence, of real worth, of ample or considerable amount, quantity, size etc. When related to a change in circumstances, this clearly requires that the change or changes relied upon must be of consequence and must be more than that which would occur by the passage of time or in the usual course of human activity.
…
62. What is required is that a trial judge be satisfied that there has been demonstrated such a change that it must be a matter of concern and required the court to examine the situation of the children afresh. There is no assistance to be gained from the authorities as to whether or not this can be done cumulatively. The law at present requires that there be a change such as to require re-litigation. That change can be made up of component parts or could rely on one single but major change. However, a cumulative basis for change in circumstances cannot be made simply by weight of numbers of the changes alleged to have occurred.”
In F & C [2004] FamCA 568 at [45] the Full Family Court added a caveat to the observations of Collier J. Their Honours thought that similar considerations to those referred to by the High Court in CDJ v VAJ (1998) 197 CLR 172 at 204 should be applied in determining whether or not to permit the reopening of previously settled parenting issues.
In my view, the above authorities amply demonstrate that before the court will entertain an application to vary or discharge existing parenting orders, the applicant must show changed circumstances of sufficient significance to warrant the court embarking again on the determination of what parenting orders should be made in the best interests of the children concerned. After all, the principles discussed in the above cases all stem from the notion that it is not in the best interests of children for their parents to be continually or regularly re-litigating parenting issues. It is only where the changed circumstances are such as to impact on the best interests of the children that the court will even consider varying earlier orders made.
An application to vary or discharge existing parenting orders does not require the court to once again embark on a contested hearing, as if the matter were being determined for the first time. That would defeat the purpose of requiring an applicant to variation of orders to overcome a threshold. It is plain that the court retains discretion as to how to deal with this threshold issue. It can either do so separately and in advance of a contested hearing on the merits, or it can do so as part of such a contested hearing.
As to how such an issue should be decided on a preliminary basis, in Miller & Harrington [2008] FamCAFC 150 at [84] – [90] the Full Court set out what I had said in Cortes & Cabrera [2007] FMCAfam 293 and then, somewhat delphicly, stated, at [91]:
“. . . because the topic was not the subject of submissions before us, we do not necessarily express agreement with all that Wilson FM has said . . . “
In my view, in this case, it is appropriate to deal with the question of whether the Court should again look at what parenting orders are in the parties’ children’s best interests, as a threshold or preliminary question. The asserted changes in circumstances are limited and it is not in either the parties’, and more particularly the children’s, best interests to allow the proceedings to continue, with the concomitant emotional upheaval involved, and the subjecting of the children to further involvement in litigation between their parents, and associated costs, if the matter can adequately be addressed at this stage.
In addition to Miller & Harrington, to which I will return, it is necessary to refer to the decision of Warnick J in SPS & PLS [2008] FamCAFC 16. That case involved the application of the so-called principle in Rice & Asplund on a contested hearing rather than as a preliminary matter. Nevertheless, several of Warnick J’s observations are pertinent.
Inferentially, at [42], Warnick J acknowledged that the principle has more weight if the matter of whether further parenting orders should be made is addressed at a threshold level. Of course, in deciding to embark upon such a course, the court must be satisfied that it is in the children’s best interests to do so.
At [48], his Honour said:
“In my view, reflection on the rule shows that:
(i)What the application of the rule can achieve if dealt with as a preliminary matter is different from what it can achieve if dealt with at the end of a full hearing.
(ii)In its original formulation, the rule is directed to application as a preliminary matter. Yet, contemporaneously with that formulation the court in Rice and Asplund determined that the rule could equally be applied at the end of a full custody hearing. The consequences of that determination have received little attention.
(iii)At whatever stage of a hearing the rule is applied, its application should remain merely a manifestation of the “best interests principle”.
(iv)Discussion in terms that the rule may be applied as a “preliminary matter” or the primary application be first heard “on the merits” may be unhelpful, particularly because of the implication that, if the rule is applied as a preliminary matter, the parenting application is not then dealt with “on the merits”.
(v)The application of the rule is closely connected with the nature of, and degree of, change sought to the earlier order.
(vi)“Shorthand” statements of the rule may contribute to its misapplication.
(vii)Any application of the rule must now measure the evidence against the principles set out in Part VII of the Act, in particular the objects of the Part, the presumption of equal shared parental responsibility and the steps required by the Act consequent upon an order made or to be made in that regard.”
In relation to the last matter mentioned, at [86] – [87] his Honour said:
“86. This provision and the position that the rule in Rice and Asplund is merely a manifestation of the best interests principle, establish that the rule survives. However, its application must recognise the new legislative content in which the question is now posited and answered. This includes the objects (and underlying principles) of the Part, set out in s 60B and s 61DA which provides that, when making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption may be rebutted, but if it is not, then under s 65DAA, the court must consider whether the child spending equal time with each parent would be in the bests interests of the child or, if such an order is not to be made, whether the child spending substantial and significant time with each parent would be in the best interests of the child.
87. While it is clear that of themselves the legislative changes introduced by the 2006 Act do not constitute a change of circumstance for the purpose of the Rice and Asplund rule, a change in relevant facts may take on a significance because of the legislative amendments that it would not have possessed before them.”
At [55] to [59] his Honour said:
“55. The ends served by the rule will vary according to whether it is applied at the outset of, or at the end of, a hearing.
56. As seen above, in Rice and Asplund, Evatt CJ recognised that a purpose of the rule was to discourage “endless litigation”. I opine that the public interest in the finality of litigation is at least partly derived from a desire to avoid the public expense of subsequent hearings and the imposition of them on court time.
57. In In the Marriage of McEnearney (1980) FLC 90-866, Nygh J moved beyond the general position of public interest in the finality of all litigation, to purposes more specific to family law. He said (at 75,499):
…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 each other but especially upon the child. (emphasis added)
58. 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.
59. If the rule is addressed as a preliminary matter and proves determinative of the application, all these purposes can be served.”
At [81] his Honour said:
“Thus, in 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.”
In Miller & Harrington, supra at [70] – [72] and [74], the members of the Full Court said:
“70. In parenting applications, when a party submits an application should not proceed to a full hearing a common approach is exemplified by the discussion in this case in the passages of transcript already set out; in particular references to “dismiss the mother’s application for final parenting on a summary basis”, after a hearing “on the papers”.
71. The use of this terminology is readily understandable, both in the light of usage in authorities and usage in the Act, e.g. s 69ZQ(1)(a), which obliges the court hearing an application for parenting orders to “decide which of the issues in the proceedings require full investigation and which may be disposed of summarily”.
72. It may be, however, that neither the expressions “summary dismissal” or “striking out” is the best term to describe the procedure when, in a parenting case, the rule in Rice and Asplund is considered at a preliminary stage. This is because, as we seek to emphasise, at whatever stage the rule in Rice and Asplund is applied, the court is bound to take into account best interests considerations and also because specific requirements, including legislative requirements, apply.
…
74. Included among the mandatory requirements upon a court are: the obligations to (as seen) “decide which of the issues in the proceedings require full investigation and which may be disposed of summarily” (s 69ZQ(1)(a)) and to “deal with as many aspects of the matter as it can on a single occasion” (s 69ZQ(1)(g)).”
Adapting what was said at [105] in Miller & Harrington, the question for this Court is: assuming the evidence of the father is accepted, is there a sufficient change of circumstances shown to justify embarking on a hearing?
The two principal matters pointed to by the father amounting to circumstances sufficient to warrant further consideration of parenting orders are, as I pointed out at [6] above, the wishes of the children, and the father’s recent discovery of allegations made by the mother, prior to the making of the consent orders.
The expression of views by the children cannot be determinative or the only factor to be taken into account. All personal relationships have a degree of fluidity about them (Archbold & Archbold (1984) FLC 91-532 at 79,309). If the wishes of children were to be given primacy and of themself sufficient to satisfy the threshold test, parenting orders would be regularly revisited.
In my view the wishes of a child, simpliciter, would rarely if ever constitute a change in circumstances sufficient to satisfy the threshold test. What is required is some evidence that those wishes are underpinned by some evidence that the current parenting arrangements are not in the best interests of the child. Parenting orders should not be varied or discharged according to the whim of a child. The reasoning for this is clear. As the trial judge said in F & C [2004] FamCA 568:
“I do not regard the wishes of [the child], as expressed as they have been in these proceedings, as being conclusive or would I place her in the position where she is to be responsible in the future for determining where she is to live simply because of what wish might be extracted from her by one parent at any time.
To provide for this to be a proper basis for reopening a matter for a child of this age would be to invite a reciprocal application shortly afterwards (if that application were successful) based on a new alleged change in wishes by the child. She should not be subjected to that form of pressure – direct or indirect by her parents in the future.
So to the extent that the question of her wishes bears upon her best wishes it seems to me that even if I were to be satisfied that she had expressed an unequivocal wish that she wanted to live at this point with her mother it would be inappropriate to permit further litigation to proceed at this point.”
The Full Court agreed with this approach. Their Honours said at paragraph [100]:
“Nothing about the evidence of the manner in which the child was being cared for by the father would bring the matter remotely close to the “exceptional cases – those concerned with allegations of physical or psychological abuse of a child” that the High Court spoke of in CDJ & VAJ (at para 150) as permitting some further examination of the parenting issue where the result, if the issue was further examined, might be different. Those exceptional cases need to be contrasted to the limited category of cases that would otherwise permit a reinvestigation being cases where it was fairly clear that the result would be different.”
Here, the two children are aged 11 and 9. Their age is such that the weight accorded to their views would not be significant. There is a conflict between the parties as to the children’s wishes, but I determine the threshold application on the basis that what the father says is an accurate reflection of the children’s wishes.
Pursuant to the existing orders the children spend overnight time with their father on four days per fortnight. They see their father on six days per fortnight. The father wants orders made that the children spend seven days and nights per fortnight with him. There is nothing in the evidence put before the Court that supports the conclusion that the additional time sought by the father is in the children’s best interests, nor that it would make the father’s relationship with the children a more meaningful one.
The father says his proposal is less unsettling for the children. He believes it is important for the boys in their teenage years to have the father as a strong role model. There is no reason why the father cannot be that role model pursuant to the current care arrangements.
There is no evidence that the children would benefit from shared parenting for equal time, as to the parenting styles of the two parents, or of their ability to adapt to such a regime. Rather, the father’s evidence is to the contrary.
The father says at paragraph 67 of his first affidavit:
“Despite [the mother] and I not always agreeing, and in fact often not agreeing, we have managed to be civil and ensure that the best interests of the boys are maintained as our main concern. Even [Ms Sankot-Gaston] often says, ‘We get along just fine until you ask for shared care’
This rather suggests that the mother is resistant to the children spending equal time with the father. That resistance would make equal shared parenting difficult to implement. The question is whether the Court should permit further parenting proceedings to determine whether or not an equal time regime is workable (or reasonably practical in the language of s.65DAA of the Act). There is, to my mind, a real risk that allowing the matter to proceed to a final contested hearing will cause the parties’ positions to become entrenched and to undermine the present level of communication and cooperation between the parties.
I do not consider that the expressed wishes of the children, equivocal as they are, to be sufficient reason to re-open parenting issues between the parties.
The fact that there were allegations made by the mother in the past as to the behaviour of the father’s wife’s child is not reason for
re-embarking on contested parenting proceedings. The invigoration of that issue is likely to be quite counter-productive to the on-going communication and relationship of the parties. Further, the father has continued to see his two children on a regular basis since the last orders were made in January 2006. The mother has not withheld them because of fears about a recurrence of the behaviour about which she complained. There is no suggestion that the behaviour is ongoing or that there is any risk to the children in the father’s care. I do not regard this topic as one warranting a full re-opening of parenting orders.
A number of other submissions made by the father can be briefly disposed of. The fact that the earlier orders were made by consent, rather than after a contested hearing is beside the point, as is made clear by the authorities to which I have earlier made reference. The fact that the children are now older than when the consent orders were made is of itself not relevant, as that is an event that occurs in the ordinary course of human affairs, with the passing of time. The desire to obtain a family report to have the children’s wishes expressed by a court expert is putting the cart before the horse, and is tantamount to a ‘bootstraps’ argument. In my view, the question of whether the parenting orders should be re-visited is determined on a preliminary basis, on the assumption that what the father says about the children’s expressed wishes is correct. There is no need, in those circumstances, for a family report.
For the reasons expressed, the father’s application should be dismissed.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Wilson FM
Associate: Lynnette Chin
Date: 18 May 2009
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