GRACE & GRACE

[2020] FCCA 977

FEDERAL CIRCUIT COURT OF AUSTRALIA

GRACE & GRACE [2020] FCCA 977

Catchwords:
FAMILY LAW – Parenting – application for parenting orders – dispute as to the secondary school that the child should attend – the ‘rule’ in Rice & Asplund – whether a Family Report should be prepared – where the child has sensory and emotional difficulties – where there is a long history of the dispute – application for a Family Report dismissed – Final Hearing in relation to schooling matter.

Cases cited:

Raymond & Harold [2009] FamCA 155

Rice & Asplund [1978] FamCA 84

Walter & Walter [2016] FamCAFC 56

Applicant: MR GRACE

Respondent: MS GRACE

File Number: MLC 11376 of 2009

Judgment of: Judge Carter

Hearing date: 16 April 2020

Date of Last Submission: 16 April 2020

Delivered at: Melbourne

Delivered on: 28 April 2020

REPRESENTATION

Counsel for the Applicant: Ms Renwick

Solicitors for the Applicant: Coote Family Lawyers

Counsel for the Respondent: Ms Jenkins

Solicitors for the Respondent: Clancy & Triado

ORDERS

1. The proceedings are listed for Final Hearing for 1 day commencing 9 October 2020 at 10.00am in relation to the child’s secondary schooling for 2021.

2. Each of the parties electronically file and serve any Amended Initiating Application or Amended Response, an updated Financial Statement if relevant, and one trial affidavit upon which they seek to rely by no later than 28 days prior to the Final Hearing.

3. Each of the parties be at liberty to electronically file a short affidavit in reply by no later than 14 days prior to the Final Hearing.

4. Each party electronically file and serve a case outline by no later than 2 days prior to trial and provide a copy in Word format to [email protected].

5. The Father’s Initiating Application filed on 20 February 2020 otherwise be dismissed.

AND THE COURT NOTES THAT:

A.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.

B.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.

C.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.

D.If section 102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 11376 of 2009

MR GRACE

Applicant

And

MS GRACE

Respondent

REASONS FOR JUDGMENT

Introduction

1. The parties in this matter are the parents of X, born in 2008 and aged 11 years (“X”). They had previously engaged in litigation in this Court in 2009 and 2014 in relation to parenting matters. The operative parenting orders are those made on 9 September 2014 (“the final orders”), which provide, amongst other things, for X to live with the Mother and to spend four nights per fortnight with the Father, as well as time on special occasions and during school holidays. The Father now seeks to increase X’s time with him.

2. Additionally, the parties have been unable to reach an agreement as to what school X should attend when he commences high school next year. It is common ground the parties had previously envisaged that X would attend B School. The Father now proposes C School for X’s secondary education.

3. It is the Mother’s position that the Father’s application be summarily dismissed on the basis of the principles outlined in the case of Rice & Asplund [1978] FamCA 84 (“Rice & Asplund”), namely that it is not in X’s best interests for there to be further litigation between his parents as to his care arrangements. 

4. The Father proposes that the hearing of the Wife’s Rice & Asplund argument should be determined only after the parties have obtained a Family Report that can properly canvas X’s views. Additionally, it was submitted by Counsel for the Father that a Family Report would be of assistance in determining the dispute between the parties as to X’s school for next year. Counsel for the Father also indicated the Father wanted the opportunity to respond to the Mother’s material. However, she conceded that the matter could proceed, and did not seek the matter be adjourned so that further material could be submitted.

5. Counsel for the Mother opposed the preparation of a Family Report. She further submitted a Family Report would have little relevance to the school in dispute, as that issue appeared largely to be a question of the Father’s finances.

6. Both Counsel for the Mother and the Father provided me with written submissions which were of significant assistance.

Background

1. The parties commenced a relationship in 2001 and married in 2004 before separating on a final basis in 2008. In 2009, the parties entered into final parenting orders by consent, pursuant to which X was to live with the Mother and spend two days a week, in addition to special occasions, with the Father. The parties also executed a Binding Financial Agreement in relation to property matters and a Binding Child Support Agreement (“BCSA”) in relation to the Father’s child support obligations. X was not yet two years of age at that time. 

2. On 21 July 2014, the Father issued further proceedings, seeking, inter alia, to revisit the final orders of 2014. On 9 September 2014, the final orders were made and remain operative.

3. There were then further proceedings in relation to the BSCA, in which the Father sought to have that agreement discharged. Orders were made by consent on 20 July 2015 pursuant to which the Father was to pay $8,000 towards the Mother’s costs and the outstanding Child Support arrears of approximately $24,000. His application was otherwise dismissed.

4. X is now 11 years of age. He is in grade six at D School. It is common ground that X has some sensory issues which have impacted his social and learning development, although he functions at a high level and is progressing well at his current school. The Mother says X is expecting to attend B School next year.

5. The Father is 46 years of age, and is a self-employed tradesman. He has remarried. The Mother is 43 years of age and works as a professional. She has also re-partnered, and she and her partner have an eight year old son, E. E commenced in grade 3 at B School this year. The Mother said she chose that school as there had previously been an agreement that X would attend there, and she wanted the siblings to attend together. She said that agreement was reached in 2018, at which time the parties signed a letter of acceptance, completed the parental questionnaire and the Father paid the $1,100 non-refundable deposit fee to the school.

The ‘rule’ in Rice & Asplund

1. In the case of Rice & Asplund, Evatt CJ said that the Court should only hear an application to alter an earlier parenting order the Court is satisfied that there is:-

   …some changed circumstances which would 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…

2. Her Honour said the Court ought not lightly entertain an application to alter an earlier custody order, as this would invite continuous litigation between parents.

3. Although it is sometimes referred to as the ‘rule’ in Rice & Asplund, it is of course only a manifestation of the best interests test. That is, the Court must consider whether it is in the child’s best interests for the Court to re-hear a parenting matter, or whether those interests are better served by the proceedings being dismissed.

4. It is generally the case that continuous litigation over a child is not in the child’s best interests. In many cases, the Court will be satisfied that it is not in the child’s best interests for further proceedings to be embarked upon, as doing so may subject the child to stress and emotional damage. There must be some significant or material change in circumstances that justifies the serious step of permitting further litigation. I must examine the evidence before the Court and determine if there is a sufficient change in circumstances that would warrant a re-hearing. The Applicant bears the onus of establishing a cogent argument variation. The mere passage of time is not generally regarded as constituting a material change in circumstances.

5. The degree to which the ‘rule’ might be applied, and therefore the breadth of the enquiry and how it will be conducted, will vary according to whether the change sought is minor or far-reaching. If the nature of the likely change is small, it may be regarded as lacking sufficient benefit to compensate for the disruption caused by the matter being re-litigated. 

6. The Court can hear a Rice & Asplund argument at any stage in a parenting case, including at a preliminary hearing. It is the Mother’s case that the Court should hear and determine the issue now as a preliminary issue. In some circumstances, the Court may consider a broader range of processes, such as the undertaking of a Child Inclusive Conference or a Family Report, prior to determining whether there has been a sufficient change in circumstances to warrant the re-opening of the parenting dispute. It is the Father’s case that X is now expressing a strong view that he wishes to spend more time with the Father, amounting to a change in circumstances. Counsel for the Father asserts that given X’s age and views, it is appropriate that a Family Report be prepared so his views can be properly ascertained and put before the Court. A determination can then be made as to whether or not there has been a sufficient change in circumstances such that further litigation should be embarked upon.

7. His Honour Murphy J said in Walter and Walter [2016] FamCAFC 56:-

   …the court’s decision as to the evidence necessary to decide the application of “the rule in Rice and 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’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.

8. Accordingly, I must determine whether X’s best interests are met by permitting the Rice & Asplund argument to proceed as a preliminary issue, or whether it is more powerfully in X’s best interests for a Family Report to first be prepared. When making that determination, I also take into account the changed circumstances upon which the Father relies that he says justifies the reopening of the parenting dispute, the magnitude of the changes sought, and the impact on X if the matter is to be re-litigated.

Conclusion

1. In my view, and for the reasons I now set out:-

   a)this is a matter that ought be dealt with summarily, rather than after the preparation of a Family Report; and

   b)this is a matter in which it is not in X’s best interests for the parties to engage in further litigation as to the arrangements for X’s care.

2. There is a lengthy procedural history between these parties. The parties have been engaged with the Court on a number of occasions throughout X’s life. They have had two sets of final parenting orders. In addition to parenting disputes, the Father has sought to set aside the BCSA, an application he ultimately withdrew.

3. The preparation of a Family Report could of course provide evidence as to X’s views and the weight that may be given to them. It is those views that the Father relies upon as the foundation of his assertion that there has been a significant change in circumstances. The Father has not articulated precisely what it is that X says he wants other than that he would like to “stay longer” with the Father. The Father deposed that X often asks him why he “can’t stay longer”, and asks about “spending more time” with the Father almost every time they are together. That is the height of the Father’s evidence. It is not particularised any further than that. These somewhat vague and unparticularised comments by X do not seem to me to provide cogent evidence that there has been sufficient change in circumstances to warrant the matter being re-heard.

4. It is also my view that the evidence of the Father as to X’s views does not demonstrate that X’s interests would be best met by those views being further explored by a Family Consultant. A Family Report is not a fishing expedition. My view that a Family Report is not in X’s best interests is strengthened when I also weigh up the impact on X of participating in a Family Report and the impact on him of further litigation. 

5. It is common ground that X has some developmental and sensory issues. X has attended upon a number of specialists and treators who have been engaged with X since 2013 and until 2017. The parties do not necessarily agree on his presentation or on the diagnosis or treatments offered.

6. X commenced with Dr F at G Psychology in 2013, who prepared reports in 2013 and early 2014. X then attended upon Dr H, clinical psychologist (“Dr H”) at J Child Psychology in 2016. He was then referred to the Child and Adolescent Mental Health Service (“CAMHS”) at the K Hospital, where he was assessed by a speech therapist, psychiatrist and psychologist. X’s engagement at CAMHS continued from September 2016 to March 2017. X was subsequently referred to Ms L of M Services in March 2017. X also attended at the N School in February and March 2017, and further assessments were recommended. If a Family Report were ordered, X would be subjected to further interviews from yet another professional.

7. The Father, in his affidavit affirmed on 19 February 2020, annexes a summary dated 26 June 2018 from Ms O, occupational therapist at CAMHS (“Ms O”). In that summary, Ms O observes X’s social, emotional and behavioural difficulties as arising:-

   …largely in the context of adjusting to new life circumstances following parental separation and blended family arrangements, different household expectations and navigating his own experience and loyalties to significant adults in his life.

8. Ms O recorded that in November 2017, X was assessed as meeting the criteria for Attention Deficit Disorder. However, Ms O noted that environmental factors “such as family stressors and classroom factors” also needed to be taken into account as they could impact on X’s attention. I accept the submission made by Counsel for the Mother that these observations suggest that X is a child who has, for a number of years, been at the centre of the conflict between his parents. It may well be that it is the parental conflict that exacerbates, if not underlies, his behavioural and emotional issues. In those circumstances, I accept that participating in the preparation of a Family Report could be quite distressing for X.

9. In his affidavit, the Father referred to X’s psychological health and development under the heading “Change of Circumstances”. The Father then set out X’s engagement with various professionals. I am not clear how those matters amount to a change in circumstances, given that the Father acknowledges X’s underlying behavioural and sensory issues were known to the parties in or around 2013, prior to the making of the final orders, albeit that they have continued to seek support and assistance for him since that time. The parties have had difficulties in reaching an agreement as to the genesis of X’s issues and have reported differently as to X’s behaviour and demeanour to various treators. This however, is nothing new, as that dynamic has been in place prior to the final orders being made. I further note it appears to be common ground that notwithstanding X’s particular issues, he is progressing well at school. The Father also deposed that “X functions at a high level” in relation to his sensory issues, which appear to be well managed. Accordingly, there seems to be nothing new about X’s psychological health and development or how those issues may impact on him in a way that would warrant a reconsideration of his care arrangements by this Court.

10. I note further the Father deposed that in 2016, Dr H said there was no particular issue for X that was of overwhelming concern. I have already set out the observations of Ms O, in that X’s difficulties appear in the context of having to adjust to his parents’ separation, blended families and loyalty issues. I have some concern that further litigation in those circumstances may inflame X’s social, emotional and behavioural issues.

11. It is the Father’s application that a shared care arrangement ought to be implemented. Currently, X spends four nights per fortnight with the Father, being each alternate Friday to Monday and each alternate Thursday overnight, together with time on school holidays and for special occasions. The change sought by the Father is not insignificant. I take that into account.

12. If I were satisfied that there was a material change in circumstances, I must consider the impact on X if further proceedings were permitted between his parents regarding his care arrangements. In my view, given his particular vulnerabilities and sensitivities, and in light of the observations made by Ms O, further proceedings would likely be quite stressful and difficult for him. It would again place him squarely in the centre of his parents’ dispute and again subject him to stress and conflict. That could not be in his best interests.

13. In my view, X’s best interests are most powerfully met by dismissing the parenting dispute with respect to X’s time with each of his parents. The conflict between the parties needs to come to an end.

14. The schooling issue still remains, but this is a discrete issue that can be dealt with relatively promptly, without the need for X to be embroiled in that dispute.

X’s schooling for 2021

1. In my view, the question of X’s schooling cannot be dealt with this day. The Father will need to respond to matters raised by the Mother in her material. Financial Statements will need to be filed, of which I do not currently have the benefit. There will most likely need to be some cross-examination and testing of evidence. For instance, the Father says he does not have the finances to meet the costs of the B School fees. The Mother in her material makes it plain she does not accept that assertion, and says the Father maintains a lavish lifestyle. Additionally, the Father asserts that it was always his position that X’s enrolment at B School was on the basis that the Mother would also contribute towards the fees. These are factual disputes that will require the testing of evidence. Additionally, I anticipate discovery will need to take place. Accordingly, the matter is properly dealt with by way of a Final Hearing.

2. Counsel for the Father submitted that the preparation of a Family Report – as well as being relevant to the parenting dispute – would also be of assistance to the Court in determining the schooling issue. Counsel referred me to the decision of the Honourable Justice Young in Raymond and Harold [2009] FamCA 155, in which it was said that in determining what school a child should attend, the various factors to be considered by the Court include consideration of the child’s wishes where appropriate, any prior agreement the parties had in relation to schooling, any change to the existing arrangements, any anxiety the child may experience as a result of changing peer group, the views of the parents, the travel time to school, the cost of the school, and any other issue that would have a real impact upon the child. Counsel for the Father submitted that a Family Report would assist the court in assessing many of those matters.

1. Respectfully, I do not agree. In my view, a Family Report would be of little utility in determining the question of X’s schooling for next year. Neither party has deposed in their material to X expressing any wish as to which school he would prefer, nor asserted that X’s wishes play any part in the decision as to what school he will attend. Neither parent has given any evidence that X is anxious about secondary school, nor where X’s friends and peers will attend next year or if this is a matter of any concern to X. 

2. Rather, the Father deposed to being unable to meet the costs of B School. Pursuant to the BCSA, the Father is to pay X’s school fees. The Father says he has attended at C School and he thinks it will be a good fit for X and his creativity. These are not matters upon which a Family Consultant could be expected to give helpful evidence.

3. The Mother sets out that the parties previously agreed upon B School and that she has enrolled her other son who has commenced there already on the expectation that X would also attend. She said that the Father does have the financial resources to meet the school fees, and that neither she nor the Father had previously wanted X to attend a Catholic, all boys’ school. She further deposes to B School being better resourced, and closer to where the parties live, making the commute for X on public transport more manageable. Again, none of those matters appear to be issues upon which a Family Consultant could helpfully comment.

4. The question of X’s schooling appears to turn on the question of costs, school curriculum and facilities, practicality, and prior representations and agreements made by the parents. In those circumstances, there appears to be no real benefit to the Court in having the parties and child engage in the preparation of a Family Report.

5. The schooling dispute will therefore need to proceed to a Final Hearing. That is a discrete issue, and should not involve X. It can most likely be contained to a one day hearing, given it is a limited issue, and accordingly I am able to allocate a one day trial prior to the end of the year.

6. For all of the foregoing reasons, I make the orders as are set out.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Carter

Associate: 

Date: 28 April 2020