Godwin & Waddington
[2021] FCCA 1467
•30 June 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Godwin & Waddington [2021] FCCA 1467
File number: CAC 2712 of 2020 Judgment of: JUDGE W J NEVILLE Date of judgment: 30 June 2021 Catchwords: FAMILY LAW – parenting – application to vary final consent orders made in March 2016 – Rice & Asplund consideration – no material change in circumstance to justify re-opening the proceedings – failure of Applicant to disclose two expert reports directly relevant to the application concerning the views of the 12 year old child – application dismissed – costs Legislation: Family Law Act 1975 (Cth), s 117 Cases cited: Carriel v Lendrum (2015) 53 Fam LR 157
Elmi & Munro [2019] FamCAFC 138
Grace v Grace [2020] FamCAFC 286
Marsden v Winch (2010) 42 Fam LR 1
Miller v Harrington (2008) 220 FLR 300; (2009) 39 Fam LR 654
O’Brien & O’Brien [2017] FamCAFC 219
Penfold v Penfold (1980) 144 CLR 311
Phillips v Hansford (No.2) (2020) 60 Fam LR 160
Poisat & Poisat (2014) FLC 93-597
Rice & Asplund (1978) 6 Fam LR 570; (1979) FLC ¶90-725
Shan & Prasad (2020) 61 Fam LR 440
SPS & PLS (2008) 217 FLR 164; (2008) FLC ¶93–363; (2009) 39 Fam LR 295
Stephens v Stephens (2011) 44 Fam LR 117
Walter & Walter [2016] FamCAFC 56Number of paragraphs: 35 Date of last submission/s: 28 April 2021 Place: Canberra Solicitor for the Applicant: Capon & Hubert Lawyers Solicitor for the Respondent: Parker Coles Curtis ORDERS
CAC 2712 of 2020 BETWEEN: MR GODWIN
Applicant
AND: MS WADDINGTON
Respondent
ORDER MADE BY:
JUDGE W J NEVILLE
DATE OF ORDER:
30 JUNE 2021
THE COURT ORDERS THAT:
1.The Initiating Application filed by the Applicant on 30 November 2020 be dismissed.
2.The Applicant is to pay the Respondent’s costs, either as agreed or taxed.
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Godwin & Waddington is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE W J NEVILLE:
Introduction
Adjudication of issues by Courts is founded upon relevant evidence and the application of relevant principle.[1] The relevant principles in the current matter, which concerns the Father seeking to have the Court re-visit final parenting Orders that were made by consent in March 2016, are well-established and well-known. An overview of that principle is set out later in these reasons.
[1] By Orders made on 22nd March 2021, (a) it was noted that the parties agreed that the Application be dealt with by way of material filed and written submissions, and (b) a time-table for the filing of submissions was also made.
As for “relevant evidence” in support of the Application, in my view, this was noticeably and unfortunately lacking. What was advanced by the Father provided no firm basis for the Court to re-visit the Final Orders that were made for the benefit of the sole child of the relationship, X.
Accordingly, the Application filed on 30th November 2020, must be dismissed. The nature of the Application was such that, in my view, a costs Order must follow in the Respondent Wife’s favour. Having regard to the relatively limited material filed with the Court, and having regard to long-standing principle in cases such as Penfold (by the High Court), and by the Full Court in Stephens, regarding the operation of s.117 of the Family Law Act 1975 (Cth) (“the Act”), the Applicant is to pay the Respondent’s costs, either as agreed or taxed.[2]
[2] Penfold v Penfold (1980) 144 CLR 311; Stephens v Stephens (2011) 44 Fam LR 117.
Background & evidence
This matter relates to one child, X, who is 12 years old. Final Orders were made by consent on 23rd March 2016. The Applicant Father now seeks to re-visit those Orders. There are, essentially, only two bases upon which the Application is made. First, the Father says that X is more mature, because he is now older than when the Orders were made. Secondly, the Father contends that X is expressing a desire for a “simplified structure, less back and forwards and equal time in blocks.” Among other things, the Father seeks that there be a report to assess the child’s views. The Respondent Mother seeks that the Applicant Father’s Application be dismissed.
In summary, the 23rd March 2016 Orders provide for:
(a)The parties to have equal shared parental responsibility for the child;
(b)The child to live with the Mother;
(c)The child to spend time with the Father during school terms:
(d)In week one, from after school Wednesday until before school Friday; and
(e)In week two, from after school Friday until before school Monday.
(f)The child spend time with the parties during the school term holiday period as agreed in writing between the parties, and failing agreement in the same pattern as during the school term.
In my view, there are two fundamental and concerning problems regarding evidence in relation to the Father’s Application.
First, one of the two grounds of the Father’s Application is that X is now older and more mature. At the time the Consent Orders were drafted, both parents had (and still have) highly experienced family lawyers acting for them. The Court should be able to rely upon some basic understanding brought to the drafting of consent Orders not the least being that due account will be taken that, like every person, the child the subject of the litigation and the Orders will grow and mature. This self-evident reality of ordinary existence not only should be taken into account in preparing consent Orders but, in my view, absent some medical or other independent evidence, simply growing up is not, and cannot be (without more) a ground to re-visit Final Orders. Growth and maturity, and the ongoing capacity and reality of same, were known at the time the Orders were made in 2016. Accordingly, that reality – known to all (parties and lawyers alike) – cannot, of itself, be considered to be a “relevant change in circumstances.”
Secondly, there is important independent evidence provided by the Mother in the way of two expert Reports regarding X’s various intellectual and other capacities and needs that was neither referred to, nor otherwise provided by, the Father. This was, in my view, a serious omission. The Reports are annexed to the Mother’s Affidavit, filed 18th March 2021. The Reports, completed in 2015 and 2019, are from B Psychology and C Psychology Clinic. Given that the Father relies upon X’s views, one would have thought that bringing these Reports to the Court’s attention was rather important, so that a more informed consideration of the weight to be given to the child’s “views” could be undertaken. Not doing so, or even referring to them generally, as already noted, was a significant and unfortunate omission. In my view, it effectively undercut pretty much completely the Father’s argument regarding any reliance upon X’s views.
Orders sought by the Applicant
The Applicant’s Orders sought were contained in his Initiating Application, filed 30th November 2020. The final Orders sought were as follows:
1. That the parties have equal shared parental responsibility for the child, X born in 2008 (“X”).
2. That X spend time with each party on a week about basis commencing on Friday after school to Friday after school in the following week.
3. That X spend time with the Father for the week of the term school holiday period being the alternate week from when he last had time with his father in the last term of school.
4. That X spend time with the Mother the week of the term school holiday period being the alternate week from when he last had time with X in the last term of school.
5. If the parent who ordinarily has care of X in accordance with these is unable to care for him overnight or longer, that parent is to first provide the other parent with the opportunity of caring for the child during that period.
6. That Easter time as it falls during the term school holiday periods will be shared between the parties on alternating-yearly basis. For the purposes of this order Easter shall be constituted by the period 5pm Thursday to 5pm on the following Monday.
7. That for the purpose of school term holidays, and in the absence an any agreement in writing between the parties to the contrary.
7.1.The school holiday period shall commence on the time school ends for the previous school term;
7.2.The first week of school holidays are deemed to concluded at 4pm on the middle Saturday;
and
7.3.The second week of school term holidays are deemed to concluded before school on the first day of the new school term
7.4.By way of clarity if X was with a parent in the last week of term then X spends the second week of the school holidays with that parent. Alternatively if X has the second last week of term with a parent he spends the first week of the school holidays with that parent.
8. That subject to Order 9 below, during the Christmas/January school period:
8.1.X spend time with his parents in a week-about (seven days/seven days) arrangement;
8.2.Each parent may have the option of extending the time X is in their care provided that:
8.2.1.Notice is given to the other party 28 days prior to commencement of the December/January holiday period and the other party agrees in writing to the extension of time within 14 days thereafter; and
8.2.2.X spends the same amount of time as what the first party’s time was extended by in substitute with the second party during the Christmas/January holiday period.
9. X spend time with his parents on special occasions as follows:
9.1.With his mother Christmas Day in even-numbered years thereafter;
9.2.With his father Christmas Day in odd-numbered years thereafter;
9.3.That notwithstanding Orders 10.1 and 10.2 above, the parent with whom X is spending Christmas Day will facilitate Skype communication between X and the other parent at a time as agreed between the parties, and failing agreement at 10am Christmas Day;
9.4.For two hours on the X’s birthday with the parent who does not have the care of X in accordance with these Orders at times as agreed between the parties, or failing agreement from after school to 6:30pm;
9.5.With his mother from 10am Mother’s Day until before school the following Monday; and
9.6.With his father from 10am Father’s Day until before school the following Monday.
10. That X spend time with his parents at all other times as agreed in writing between the parties.
11. That the parties will notify the other parent of the name of any GP, dentist or other medical professional or specialist that has or is treating X and will give the other parent reasonable notice of any appointments and invite that parent to attend.
12.That the parties will notify the other parent of any significant illness or medical emergency in relation to X and will provide any necessary authority to X’s treating medical practitioners to enable the other parent to obtain written and/or oral information about any treatment, consultation, diagnosis or prognosis in relation to X.
Orders sought by the Respondent
The Respondent’s Orders sought were contained in her Response filed 18th March 2021. The final Orders sought were as follows:
1.That the final orders sought by the Applicant Father is his Initiating Application filed on 30 November 2020 be dismissed.
Submissions on behalf of the Applicant
The Applicant filed written submissions on 28th April 2021, which were as follows:
APPLICANT FATHER’S OUTLINE OF SUBMISSIONS AS TO RICE V ASPLUND
1.Rice v Asplund 1979 FLC 90-725 requires that for a change in parenting orders that there be a significant change in circumstances requiring the attention of the Court.
2.The significant changes in this case put briefly and with restraint by the father are:
a.The relevant parenting orders were made 23 March 2016. X the relevant child was born in 2008 then aged 7 years.
b.X is now aged 12 years and eight months (12.75 years) of age being more mature in terms of age-now attending high school year 7;
c.There is an issue about his wishes which the father says have been for a simplified structure, less back and forwards and equal time in blocks (F para 3, and 11 particularly 11(g));
d.Paragraph 6 of the orders says X is to be returned on Monday of a school day. At no time since the orders has the Father been given as might normally be the case the Public Holiday Monday. If the orders stayed some simple changed could be appropriate. (see F para 6 and Mother Para 17).
3.(a) In Elmi & Munro [2019] FamCAFC138 there was an issue about the wishes of the child. The Father wanted equal time. He sought a family report. The mother pressed the Rice & Asplund argument. The initial Judge dismissed the father’s application on Rice & Asplund grounds. On appeal to the full court the father’s appeal was upheld (partly because of procedural issues). In that case paragraph 34 and 35 it was noted that children’s orders are not set in stone using the concept res judicata in that section 65D (2) of the Family Law Act does in appropriate cases state that “A court may make a parenting order that discharges, varies or revives some or all of an earlier parenting order”
(b) In paragraph 55-56 Elmi V Munro notes that if circumstances had changed than a Family report was indeed an option
(c) In our submission the court will not be apprised of the extent of change unless X’s views are independently assessed.
(d) It was similar in some respect on the matter of Grace V Grace [2020] Fam CAFC 286 where the father sought equal time given the child being at High School age. The Father alleged the child wanted equal time. The mother said his wishes were unreliable and the matter should be dismissed summarily without a family report.
(e) In both cases the matter was upheld on appeal and in both cases the father sought a family report.
4.The Respondent argues that X should not be put to further assessment.
a.It is submitted that the first assessment was done at the behest of the mother and step father without initial input form the father. It was about ADHD, It was said by the mother these all came from the father’s side of the family;
b.The second assessment was about learning issues with reading/decoding English and written expression with possible dyslexic issues. It does not go to the issue of maturity in X not knowing what he wants.
c.In all the circumstances given he has in other respects been to see a psychologist. A short wishes assessment should not be unduly onerous with an appropriately skilled or forensically experience practitioner.
d.A short assessment would assess his level of maturity and weight to be given to X’s statements. The affidavit evidence indicates a factual issue that requires some independent resolution.
e.The father did not put it in his affidavit. He does instruct that X has a new step mother Ms D after the 2016 orders were in place.
5.The Mother has experience and competent legal representation and Counsel. The Mother has in many respects overreacted with a diatribe against the father out of proportion in content. It is submitted this is indicative of the intensity of the mother’s reaction. Ultimately this may indicate that a sensitive 12 year old not wishing to offend either parent may meet a barrage is he opens his mouth about equal time with the mother or his step father. In summary “Me thinks she dost protest too much” to use the Shakespeare analogy;
a.The atmosphere is such that recordings of what the father has said are played to X M para 20 F para 9. The fact of recording and playing to X is common ground. The Father would say that what X says needs to be looked at in contacted as to the household or parent he is with. The portraying of his father describing his Son as “a liar” is not reasonable or fair;
b.The father is described to third parties such as B Psychology Mr E in the opening paragraphs as “His mother conjectured (my emphasis) he (X) may have a learning disability, as his biological father’s family seemed to have learning disabilities”. This assessment was obtained by the mother and stepfather without any involvement of the Father.
c.There are issues about the origins of texts purportedly sent by X to his father and conversations before and after receipt of the texts as set out in paragraphs F11(d) and (e) which postdate the trial period which the mother alleged was a failure. It demonstrates the issue is persisting beyond the events in 11 (b) and (c) “being a short trial of different days”.
d.The mother’s submission in 8(b) alleges no cogent reason as to why the text is not genuine. His knowledge as to how X expresses himself is one reason in that it is not the way he speak. Further the father deposes that X stated after the text “Ms Waddington and Mr F made me send the message”
e.Paragraph 11(d) in the father’s affidavit indicate the reference to “fair” is not just the portion of time being equal. X does not understand why he is treated differently than the other step children in the same household namely G and H as to time arrangements with the other parent. He does not want that treatment.
f.The father not filing material in reply to the mother should not be interpreted as acceptance of the mother’s alleged facts as set out in paragraph 4 of the mother’s submissions. The two documents articulate for themselves the facts at issue. The father has taken a minimalist approach in terms of the factual matters.
6.Ultimately this is a matter for some independent assessment of X. His purported views in the context of either parent’s households are not sufficient in terms of evidence. The matter of a Rice V Asplund argument may well be premature prior to better and more independent evidence as to his views. Each party may then reassess their position after receipt of further evidence. As a matter of fairness for X and the parties this step should be undertaken.
7.In this case neither party has actually required the institution of contested proceedings in the past. The orders of 23 March 2016 were by consent when X was 7. The mischief in the rule of Rice v Asplund to prevent continued exposure of the child X to litigation has not occurred in the past. There has not been any litigation.
Submissions on behalf of the Respondent
The Respondent filed written submissions on 13th April 2021, which were as follows:
SUBMISSIONS OF RESPONDENT MOTHER
Background
1. These submissions flow form Orders made by his Honour Judge Neville on 22 March 2021.
2. The dispute concerns final Orders made in 2016 and a now 12 year old child, X (‘the child’). The father asserts a change in circumstances. The mother asserts there is no material change and that further litigation is not in the child’s best interest.
The Principles Applying to Rice & Asplund Matters
3. Counsel respectfully adopts the outline of principle given in Rundle & Jaynes [2020] FCCA 1629 from paragraphs 26 to 34, noting that summary was not criticised by the Full Court on appeal. Counsel relies on the outline of principle dealt with by Aldridge J, sitting as the Full Court, in Jaynes & Rundle [2021] FamCAFC 292 from paragraphs 11 to 20. Counsel addresses further authority below.
4. The determination of a preliminary issue proceeds on an assumption that the applicant’s evidence has been accepted. In Searson, Kent J held at [60] (Loughnan J agreeing) that on the hearing of a preliminary issue, the Court was bound to assume the acceptance of the applicant’s evidence on the question whether a sufficient change in circumstances was demonstrated. Should the Court conclude that the application be dismissed, it is grounded upon a conclusion that the uncontested evidence demonstrates there is an insufficient basis to embark upon a further hearing: Marsden & Winch, [47] citing SPS & PLS, [81]. That does not, of course, mean that the respondent’s evidence should be discounted, something which in this case assumes some significance given that the father has chosen not to file material in reply.
5. Of particular importance in this matter are the stages to be considered from Marsden & Winch [2009] FamCAFC 152 (“Marsden & Winch”) at [50]. Counsel notes that in determining the second step of the process, the Court is not required to follow the legislative pathway of Goode v Goode[2006] FamCA 1346, nor is it required to undertake an assessment of all of the s.60CC factors. The Full Court in DL & W at [77] adopted the view of Collier J in King & Finnernan, that to require the Court to do so would defeat the entire purpose of the rule in Rice & Asplund.
Past Circumstances and Previous Evidence
6. The father’s evidence is his affidavit of 25 November 2021. In that, he says Final Consent Orders were made in 2015. That is patently incorrect. They were in fact made in May 2016. In the event, he gives no real evidence as to the matters in contest prior to entry into previous Orders, or why the parties settled in the manner that they did. Certainly, he does not explain if an equal time arrangement was sought by him previously.
7. Certainly, the best the father’s evidence does in terms of articulating a change is to say:-
a. The child is older. This is well established as a matter not amounting to a significant change in circumstances;
b. The child is expressing a view about equal time. A significant note of caution must here be introduced because text message evidence produced by the father demonstrates that, for whatever reason, a different view has also been expressed. In the event, the father’s evidence is unhelpful where he does not articulate if the view was any different prior to the previous Orders;
c. The father misses out on public holidays on some Mondays and has difficulties sending the child to the tutor the father wants him to go to. These assertions by the father are strongly disputed by the mother. In any event, this could hardly be a change in circumstances where it was patent from the earlier Orders the time did not extend on Monday public holidays. No reason is articulated by the father as to why it should;
d. The father has and he suggests the child has “some issues” with the step-father. Two general assertions are made at [9 and 10] devoid of detail that allow them to be assessed. In the event, that could hardly be said to be a material change in circumstances; and
e. The parties trialled a version of increased time, albeit the father does not articulate for how long this occurred. To suggest that is a material change would make a nonsense of allowing parties to make agreed arrangements outside of Orders and undermine the policy basis of the ‘rule’ in Rice & Asplund.
A Likelihood of Orders Being Varied in a Significant Way from a Hearing?
8. The mother submits there is very little likelihood of the Orders being varied in a significant way at hearing. That is because:-
a. Despite the father’s claims as to the maturity of the child, such claims are undermined by his own silence, and deemed acceptance of the mother’s evidence about multiple professional assessments of the child which have given him a range of diagnoses that appear incongruent with the father’s assertion;
b. The evidence of the father provides no cogent reason why he believes a text message from the child not wanting equal time is not genuine, other than an unspecified line in a conversation of unspecified date devoid of context or any detail that allows it to be understood. One submits that if the father actually considered what was said by the child as he alleges at 11(e) it might be clear to him it is not inconsistent with the message he was sent. Notably, that message conforms with aspects of his later evidence deposing to the child not wanting to be ‘in the middle’ of the decision.
c. The father’s focus, and perhaps and more concerningly the child’s focus, on ‘fair’ seems to underpin the father’s application. His evidence is entirely silent on how his proposed arrangement will work. His evidence is entirely silent on how he will communicate with the mother in an ongoing way that will allow a ‘week about’ arrangement to be practicable, given the impact of proceedings on the mother and the child. He does not say how he will manage the mother’s disappointment and the upheavals in her life necessitated by the change he desires. He does not articulate a plan if his desired Orders do not ‘work’ for the child. He fails to articulate any plan for the possibility the child is telling him what the child thinks the father wants to hear or what he has done to address this possibility. Indeed, in one sense, his application in lacking this information is either arrogant or lacking the insight to understand that the Court is not at the whim of a 12 year old. The father’s focus and failures highlight a key point about why his case would be unlikely to result in significant variations- decisions about children are not made based on what’s ‘fair’ or what a child who is 12 thinks is ‘fair’ they are based on the best interests of the child. Notably, nowhere in his affidavit does the father articulate why he decided his proposal was in the child’s best interests, referring only to requests made by the child and fairness. One can only speculate on whether the father considered it was ‘fair’ to put the child in a position of having to articulate a view when, on the father’s own evidence, he had asked not to be put in that position.
d. [3] of the father’s affidavit provides no evidence from which one could draw a proper inference as to maturity that would mean a 12 year old child’s view would be of significant weight at trial.
e. Making tutoring appointments ‘easier’ to keep is hardly likely to result in a significant alteration of arrangements, noting that the mother disputes that arranging tutoring has been difficult.
f. The father’s suggestion that the child is above average academically in his paragraph 16 is incongruous with his expression of a need for tutoring and his silence on matters he plainly was aware of and chose not to disclose; and
g. The father’s credit is irreparably damaged by his abject failure to make full and frank disclosure of expert reports relating to diagnoses for the child, including of learning disorders, and prior complaints made to family services about his parenting. He has deliberately chosen to conceal relevant information from the Court in circumstances where he was assisted by a solicitor. It is plain that he was aware of professional reports in relation to the child’s diagnoses from Part F of the Application for Consent Orders of 16 March 2016 and from the terms of the 2019 report itself. Both reports are annexed to the mother’s material.
Weighing the Nature of the Likely changes against Impact on the Child
9. In terms of the impact on the child the considerations are significant. That is because:-
a. The child has clearly articulated not wanting to make the decision or be caught in the middle between his parents. The father’s application, reliant as it is on views, cannot help but be placing the child in the exact position that he has asked his father not to place him.
b. Litigation itself is inimical to the best interests of children, but this case is one which will be contested, clearly for some time given the difficult position around views. The matter is also not assisted by the father’s allegations which are entirely devoid of probative value directed towards the step-father. The process will be lengthy and the child will be interviewed by further professionals. The proceedings will be costly and stressful, particularly for the mother who is the child’s primary carer. It is patently obvious that try as she might the mother will be unable to completely shield the child from the financial and emotional impact of proceedings on her. Similarly, one would expect the same of the father. This places the child in exactly the position he did not want to be in, of feeling responsible and at the centre of a war between competing parents. That is unjustified when the father brings and application to court failing to justify why it is in the child’s best interests other than views which are contested and a concept of ‘fair’ whilst seemingly admitting for the child the current arrangements are working, indeed without deficit if his evidence about the child’s academic progress were to be believed.
Outline of Principle
I note the following from four of many Full Court decisions that deal with the principle first articulated by the Full Court in Rice & Asplund.[3]
[3] Rice & Asplund (1979) FLC ¶90-725.
Firstly, and simply by way of reference only, I note Warnick J’s important decision in SPS & PLS, notably at [48], [49], [56], [58], [61], [65], [74], [78], [81], [82], [83] and [86].[4] Although the paragraphs to which I have referred should be taken to be primary points of reference, I will not and need not set them out from his Honour’s judgment, save for his Honour’s comments at [48] and [81], which are as follows:[5]
[4] SPS & PLS (2008) 217 FLR 164; (2008) FLC ¶93–363; (2009) 39 Fam LR 295. Warnick J was sitting as the Full Court.
[5] Warnick J’s comments in SPS & PLS were cited with approval by the Full Court (Bryant CJ, Finn & Cronin JJ) in Marsden v Winch (2010) 42 Fam LR 1 at [46] and [47].
[48] 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.
[81] …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 2008, the Full Court (Warnick, Boland & Murphy JJ) in Miller v Harrington discussed further the principle and application of Rice & Asplund.[6] Among other things, the Court there said, at [72] (emphasis added):
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.
[6] Miller v Harrington (2008) 220 FLR 300; (2009) 39 Fam LR 654.
Then at [80] and then at [82] - [84], the Full Court noted:
[80] In our view, that passage [at [81] in SPS & PLS] need not be taken as saying that the only way in which the rule in Rice and Asplund can be applied at a preliminary stage is on the basis that the case of the applicant for parenting orders is taken at its highest.
[82] … the qualitative question of whether a change that has occurred is or is not sufficiently significant to justify a full further hearing of a parenting issue may be one much more difficult to answer in a preliminary hearing involving resolution of only some disputed facts.
[83] This observation may be behind the approach that either the case of the applicant for parenting orders is, at a preliminary stage, taken at its highest, or the hearing embarked upon is an enquiry into all matters relating to the best interests of the child or children.
[84] On the other hand, there is authority to suggest that these are not the only legitimate procedures….
In Marsden v Winch, the Full Court observed, at [50]:[7]
Nevertheless, there are significant changes that occur and which do require a court to reconsider decisions previously made. Whether in a particular case a court should be willing to embark upon another hearing concerning the child and parent, or whether to do so would itself be demonstrably contrary to the best interests of the child, is a decision to be made in each particular case. How is that decision to be made? The court must look at:
1) The past circumstances, including the reasons for the decision and the evidence upon which it was based.
2) Whether there is a likelihood of orders being varied in a significant way, as a result of a new hearing.
3) If there is such 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.
[7] Marsden v Winch (2010) 42 Fam LR 1.
Then in 2014, a Full Court comprising Strickland, Murphy and Austin JJ delivered judgment in Poisat & Poisat.[8] At [43], their Honours commented on the rule in Rice & Asplund:
If applied on a preliminary basis, the issue is whether the circumstances as disclosed by the evidence reveal a change of such significance that the best interests of the child require a revisiting of earlier orders.
[8] Poisat & Poisat (2014) FLC 93-597.
Most recently, in Carriel v Lendrum, a differently constituted Full Court (Finn, Strickland and Kent JJ) commented further, and at a little length, on the principle or rule in Rice & Asplund.[9] At [46], their Honours said (emphasis added):
… we are far from persuaded that the hurdles that have to be overcome to found a successful challenge on the basis of the weight afforded to the evidence have been scaled. It has consistently been held that where no error of fact or law is present, disagreement only on matters of weight cannot alone justify appellate interference….
[9] Carriel v Lendrum (2015) 53 Fam LR 157.
After noting, at [51], comments from Miller v Harrington (at [72]), and then, at [53], further comments from Poisat & Poisat (at [42]), at [56], the Full Court said:
This analysis leads us to the view that where the principle in Rice & Asplund is being considered, it will not be appropriate or necessary to discretely address many of the factors in section 60CC of the Act in determining where the best interests of the child might lie.
Then at [57], their Honours stated (emphasis added):
In a case where the principle in Rice arises for consideration, there are two circumstances which are central to the decision. First, there will already exist a parenting order and, axiomatically, the terms of that order will reflect the best interests of the child or children at the time of its making. Second, the fact that an order has been made reflects that disputation between parties to a parenting dispute, such dispute being inherently contrary to the best interests of the child whilst it exists, has been brought to an end by a curial order. Those twin circumstances dictate the conclusion that it cannot logically be in the best interests of the child to embark upon further litigation enquiring as to the child’s best interests unless it is first demonstrated that a sufficient change in circumstances has occurred since the parenting order was made.
Commenting on the decision then under appeal, the Court said, at [58] (emphasis added):
Thus, it is entirely understandable, and in our view, not erroneous, for his Honour to address the issue of “best interests” by reference to whether it is in the interests of the child for there to be the further litigation proposed by the mother. Indeed, we note that this was how the issue was framed in the mother’s outline of argument presented to his Honour at the commencement of the hearing. She said this (at paragraph 3):
The central question for consideration by the Court was encapsulated by Warnick J in the following terms (para 81, at page 310):
“… Though sometimes unstated, the underlying conclusion will or ought to 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.”
Most recently, in Walter & Walter, the Full Court (May, Ainslie-Wallace & Murphy JJ) dealt with an appeal in relation to a so-called Rice & Asplund matter.[10] In the course of the disposition of that unsuccessful appeal, by reference to most of the cases to which I have already referred in these reasons, I note briefly the following.
[10] Walter & Walter [2016] FamCAFC 56.
First, at [51] – [57], Ainslie-Wallace J said (May J agreed with her Honour’s reason as well as those of Murphy J):
[51] Where the question of whether a sufficient change in circumstances has occurred is to be determined as a matter preliminary to the hearing of the application, it is accepted that the applicant’s evidence should be taken at its highest.
[52] It was argued for the mother that his Honour erred in finding that she had failed to demonstrate a sufficient change in circumstances to justify re-opening the parenting proceedings.
[53] His Honour concluded at [100] that the facts did not establish “a new and vital change in the circumstances”, and found that it was “obvious” that Amber had been anxious for some time and that anxiety had from time to time manifested itself in her refusing to go to school. He went on to offer what he considered to be the reasons for this, including that she had recently commenced high school. He thus found at [111] that the mother’s evidence did not establish a material change of circumstances in the necessary sense.
[54] The bar to appellate intervention where the challenge is to a judge’s fact finding is set high. See Edwards v Noble (1971) 125 CLR 296.
[55] In order to succeed in challenging his Honour’s finding that there had been no change in circumstances, it is necessary to demonstrate that the finding was not open to his Honour on the evidence before him.
[56] Thus it was argued that, had his Honour indeed taken the mother’s evidence at its highest it was not open to him to find that there had been no material change in circumstances. It was further argued that both his Honour’s conclusion that the child had always been anxious, and that her present refusal to attend school was a manifestation of a pre-existing condition and was probably due to her attending a new school, were findings unsupported by the evidence.
[57] His Honour’s finding that the child’s present anxiety and refusal to attend school was unsupported by the evidence. However, it was a conclusion reasonably open to his Honour given the accepted increase in her refusing to attend school and anxiety generally with the beginning of a new school regime. It could not be said that the conclusion was not open to his Honour. His Honour’s findings clearly accept the parties’ position that Amber’s anxiety and school refusal had escalated. The issue for his Honour was whether these circumstances led to the conclusion that there had been a material change in circumstances. His Honour found that they did not. That was a determination open to him and I find no error in his conclusion. This challenge is not made out.
In his consideration of the challenge regarding the trial Court’s assessment of whether there had been a material change in circumstances, Murphy J said, at [83] – [86]:
[83] In any event, while the arguments in support of the contention are framed as challenges to “principles” relating to the rule, they are, in essence, challenges to the weight which his Honour attached to aspects of the evidence.
[84] In my view, the findings made by his Honour were entirely open to him on the evidence and it was entirely open to his Honour to include the matters to which his Honour made reference in reaching a determination that a material change in circumstances was not established.
[85] In that respect, it has been held recently that:
… Plainly a circumstance can only constitute a relevant 'change' if it is a circumstance which was outside or beyond the contemplation or consideration of the parties and the court at the time the original parenting orders were made. Put another way, if the current circumstances were within the contemplation of the parties and were considered by the court at the time the original parenting orders were made, there is no basis upon which they can be said to constitute a change which would justify the prospect of continuing litigation with respect to parenting arrangements, given the adverse effect which uncertainty and unpredictability with respect to parenting arrangements can be assumed to have upon the interests of the child concerned…[11]
[86] In my view his Honour made no error as asserted on behalf of the mother.
[11] CDW v LVE [2015] WASCA 247, at [88] per Martin CJ.
Then, after referring at a little length to Warnick J’s decision in SPS & PLS, at [110] – [116], Murphy J continued (internal citations omitted; emphasis added):
[110] The exercise of those discretions will depend, like all discretionary decisions, on a multiplicity of factors. However, the decisions will include a consideration of the nature and cogency of the evidence as to material change and the nature and extent of the orders sought to be changed. The decisions will also ordinarily involve a consideration of the notorious fact – accepted as such both by authority and by Mr North in his arguments – that continued litigation and the re-agitation of contested issues about children has the potential to cause significant harm to them.
[111] In some cases, those factors, and perhaps others, will persuade a court that further evidence is required before reaching a decision on the Rice & Asplund question. The obtaining of a Family Report in an appropriate case might be an example of such further evidence, although it once again needs to be pointed out that Family Reports do not decide cases; courts do.
[112] However, the court’s decision as to the evidence necessary to decide the application of “the rule in Rice & Asplund” as a preliminary matter also involves the exercise of discretion. The exercise of that discretion will also have as its central question whether it is “more powerfully in the child[ren’s] welfare” to permit the obtaining of the further evidence – and what might be involved for the children in doing so – than to determine the application of the rule as a preliminary matter without that evidence. That can be seen to have particular importance when the evidence sought is a Family Report or the interventions of other experts that involve the participation of the children.
[113] It should also be pointed out (as it was by this Court in Miller & Harrington), that the relevant discretions must now be exercised within the mandatory principles and other provisions contained within Division 12A of the Act. In that respect two of the mandatory principles which must be applied by a court by reference to s 69ZN of the Act bear quotation:
(3) The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.
(4) The second principle is that the court is to actively direct, control and manage the conduct of the proceedings.
[114] In my view, contrary to the submissions made by Mr North, well settled authority is entirely consistent with his Honour having the power to apply “the rule in Rice & Asplund” as a preliminary matter “… even where the evidence demonstrates a material change since the previous order”.
[115] Secondly, again contrary to Mr North’s submissions, it is in my view not correct to characterise his Honour’s actions or decisions as a failure or refusal to exercise jurisdiction in proceedings for parenting orders properly invoked by the mother. The refusal by his Honour to contemplate the obtaining of a Family Report (or, perhaps, other evidence) so as to inform the rule at a preliminary stage was not a failure of judicial process but a discretionary decision performed within a mandatory statutory context and arrived at by reference to the children’s best interests for reasons which his Honour gave.
[116] It is not established that his Honour erred in law; that he failed to take account of relevant considerations; that he took account of irrelevant considerations or committed any other discretionary error. No error in the exercise of his Honour’s discretion is pleaded nor can any be seen in his Honour’s reasons.
One final observation should be made here. In the parties’ respective written submissions, each of them refer to a number of very recent Full Court decisions. I will not refer to any of them in any detail at all. Nor will I give their citations, even though one of them in the Mother’s submissions has the wrong year of citation. In my view, each of those decisions essentially turned on its own facts, and/or dealt with some more specific matter that is not directly (or even tangentially) relevant to the current matter before this Court. Further, in none of the more recent Full Court decisions was there any new or revised articulation of principle. Rather, each of them referred to authorities now well-known, each of which is considered in the discussion above.
In addition to these observations, I need only note that the decision in Elmi & Munro, relied upon or referred to by the Father, turned primarily upon the trial Judge undertaking a rather exotic consideration of matters relating to res judicata, and other things, that were far afield from the long-time basal principles set out above. The Full Court decisions in Grace, and later still in Jaynes, turned respectively on the lack of procedural fairness afforded to the Father, and a standard consideration of the above-mentioned principles to the facts before the Court. Accordingly, these decisions do not assist either party in the current matter, one way or the other.
Consideration and disposition
In light of the principles just outlined, and the facts set out at the commencement of these reasons, I need only note here, quite summarily, the following matters.
First, as already noted, as a matter of evidence, the failure by the Father to provide copies of, or even to refer to, the expert reports in 2015 and 2019 that deal with X’s various talents and capacities, was a very significant omission. I do not suggest that it was deliberate. However, in not bringing this material to the attention of the Court, and nonetheless asking that Orders be made that (in the Father’s view) turned heavily on the views of the child, who is still relatively young, was both procedurally irregular (or worse). It was also potentially a form of misleading the Court, simply by the inadvertence or general omission of potentially very crucial evidence.
Secondly, putting the same matters in slightly different terms, the omission of the expert reports was, as a matter of procedure, a serious omission or oversight. As a matter of evidence, it placed everyone, but especially the Court, at a singular disadvantage. It could have led to the Court making Orders without a proper, or seriously compromised, evidentiary basis. Indeed, it could have meant that Orders were made erroneously.
Thirdly, without the expert reports before the Court, it meant that the Court had no independent evidence against which to weigh the child’s views. As presented by the Father’s seriously limited evidence, X’s views were crucially important. That may be correct, or may have been correct. However, in the light of the expert reports, the child’s views (taken at their highest) cannot be so plainly stated by the Father, or be taken to be as clear and properly formed as suggested by the Father, or otherwise relied upon in the unqualified way suggested by the Father. Moreover, the views of a 12 year old, in any circumstances, would have to be but one matter to consider, in evaluating the Application before the Court. It would generally be a question of how much weight should be ascribed to them. The weight to be given to them in this instance, now in the light of the reports provided by the Mother, must be very heavily circumscribed.
Fourthly, as noted earlier in these reasons, the issue of the child’s maturity (and age) are not, without more, anything new in the so-called equation of relevant matters for consideration in the Court evaluating if there has been a “material change in circumstances.” Everyone knew that X would (and has) grown up and matured, again taking into account the expert evidence regarding his capacities and the matters set out in them. Age and maturity, by themselves, do not, without more, constitute a change in circumstances. Everyone knew at the time of the Consent Orders in 2016 that these things would occur. It is not a sudden or new revelation. Whether it was, in fact, taken into account in the consideration and drafting of the 2016 Orders, in the absence of relevant evidence, must necessarily be speculation.
In addition to the evidentiary and procedural concerns noted, applying the principles I have outlined to the facts here, there is no relevant or material change in circumstances to warrant the Final Consent Orders to be re-visited. Otherwise, I accept the Mother’s submissions.
Accordingly, the Father’s Application, filed 30th November 2020, must be dismissed. For the reasons given, especially the serious procedural and evidentiary omissions, the Mother should have a costs Order in her favour. Having regard to the fortunately limited material before the Court, the Applicant is to pay the Respondent’s costs, either as agreed or taxed.
I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of Judge W J Neville. Associate:
Dated: 30 June 2021
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